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Statehood and International Protection of Peoples in Armed Conflicts in the ‘Brave New World’: Palestine as a UN Source of Concern
Published online by Cambridge University Press: 21 July 2009
Abstract
The East-West detente has uncovered the importance of statehood for the international protection of peoples in international conflicts. The importance becomes obvious from a comparison between the legal position of the Kuwaitis with that of the Kurds and, more in particular, the Palestinians in that respect. The Gulf war urged the Security Council to enforce Iraq's compliance with the 1949 Fourth Geneva Convention. The Council has also taken the position that Israel should apply this convention de jure in the 1967 occupied Palestinian territories, albeit lessforcefully. This is partly due to the fact that the UN itself has caused confusion concerning the legal status of these territories. History shows that the Palestine Mandate should not be considered as indivisible in such a way that the creation of Israel automatically implied the termination of the mandate as a whole. The Palestine Mandate still exists for the area of the Arab state, defined in the General Assembly Resolution 181 (II) of November 29,1947, recommending a partition plan for Palestine. Subsequent resolutions of both the General Assembly and the Security Council imply that the Palestinian people can only claim the West Bank including East Jerusalem -hereafter referred to as the West Bank- and the Gaza Strip as its future territory. The Palestinian people appears to have resigned itself to this fact of life since its acceptance of Security Council Resolutions 242 of November 22,1947, and 338 of October 22,1973. In doing so it has stopped any further erosion of its claim to an independent state by virtue of its right to self-determination. Neither the Gulf war nor an international peace conference on the Middle East can alter the new situation one bit anymore. For the first time since 1947 the General Assembly is now in the position to keep the promise of self-determination towards the Palestinianpeople as well. The 1950 advisory opinion of the International Court of Justice on the international status of South West Africa gives it a good point of departure for assuming its full responsibility for doing justice to the right to self-determination of the Palestinian people. Legally speaking the role of the UN in the development of the International Peace Conference on the Middle East is crucial for the future of Israel and Palestine.
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References
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43. Supra Para. 1.
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61. In itsS.C. Res. 688 of April 5, 1991 on humanitarian efforts in Iraq the Security Council explicitlyrecalled Article 2(7) of the UN Charter and reaffirmed the commitment of all member states to thesovereignty, territorial integrity and political independence of Iraq and of all states in the region.Moreover, S.C. Res. 706 of Aug. 15, 1991 made the effectiveness of the intended humanitarian assistance to the Iraqi peoples completely dependent on the willingness of the Iraqi government to export petroleumand petroleum products to an amount not exceeding $1.6 billion for the humanitarian purposes set out in the resolution and subject to a number of exceptionally severe conditions.
62. In its S.C. Res. 713 of Sept. 25.1991 the Security Council expressed its full support under Chapter VIII of the UN Charter -regional arrangements- for the collective efforts of the European Community with the support of the Conference on Security and Cooperation in Europe “‘consistent with the principles of that Conference”. These principles exclude any enforcement action against Yugoslavia without the consent of that state. It is true that the Security Council proclaimed underChapter VII ageneral and complete embargo on all deliveries of weapons and military equipment to Yugoslavia, but that decision was meant to protect the territorial integrity of Yugoslavia. This appears from the very first preambular consideration that Yugoslavia has welcomed the convening of the Security Council meeting.
63. This holds true in particular for Palestine, in my opinion, for the mandate system implies that the creation of Palestine is not so much a matter of the Palestinian people itself and of individual slates as of the UN General Assembly. See supra Para. 3.2 and infra Para. 5.
64. S.C. Res. 660 of Aug. 2. 1990.
65. S.C. Res. 662 of Aug. 9, 1990.
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71. S.C. Res. 674 of Oct. 29, 1990, Paras. 5 and 7.
72. Id., Paras. 8 and 9.
73. S.C. Res. 686 of March 2, 1991. preamble Para. 5.
74. S.C. Res. 686 of March 2, 1991, Para. 2(b) and 687 of April 3, 1991. Paras. 16, 18 and 19.
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95. S.C. Res. 681 of Dec. 20, 1990, Para. 6. See also Doc. S/22472 of April 9, 1991. Report submitted to the Security Council by the Secretary-General in accordance with Resolution 681 (1990).
96. U.N. G.A. Res. 41/128 of Dec. 4. 1986.
97. The UN Declaration on the Right to Development was adopted by 146 against 1 (United States) with 8 abstentions (Denmark. Finland. Federal Republic of Germany. Iceland. Israel. Japan. Sweden and United Kingdom). As for Israel it may be argued that its abstention expressed a positive attitude, forotherwise it would not have isolated its reliable voting-pal. Unlike Israel Iraq is a party to the International Covenants on human rights.
98. Principle 6(1). The Declaration was adopted by the International Law Association (ILA) in 1986. See Report of the Sixty-second Conference held in Seoul. Aug. 24 to Aug. 30. 1986. at 1–12.
99. The UN Declaration on (he Right to Development recognizes that “development is a comprehensive economic, social, cultural and political process), which aims at the constant improvement ol'ihc well-beingofthcentirc population and of all individuals on the basis oflheiraclive. Tree and meaningful participation in development and in the fair distribution of benefits resulting therefrom”.
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106. The creation of a home for the Jewish people in Palestine, secured by public law, was the main purpose of Zionism: E.J. Osmariczyk. supra note 12. at 956.
107. Such a conclusion may be drawn from the joint academic project “Dynamics of Self-determination”of the Arab Thought Forum (Jerusalem), the International Center for Peace in the Middle East (Tel Aviv).Rijksuniversiteit Gent. Katholieke Universiteit Nijmegen. Vrije Universiteil (Amsterdam) and the International Dialogues Foundation (Driebergen). see Denters., E., Klein, J. (eds.). Proceedings of the seminar ‘Economic aspects of a political settlement in the Middle East”. Nijmegen. April 18–21, 1990(1991); Panels, W. (ed.), Proceedings of the seminar “The Israeli-Palestinian conflict: security-dilemmasand -alternatives in the light of the Gulf Crisis’, Amsterdam. Nov. 21–24. 1990 (1991): M. Cogen, Proceedings of the seminar ‘The Israeli-Palestinian conflict: the impact of shifting perceptions on collective identities and political prospects’. Gent. Sept. 12–14. 1991 (forthcoming).Google Scholar
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