Beijing Law Review, 2011, 2, 111-118
doi:10.4236/blr. 2011. 23011 Published Online September 2011 (http://www.SciRP.org/journal/blr)
Human Rights and Palestine: The Right to
Self-Determination in Legal and Historical
Perspective
Curtis F. J. Doebbler
Geneva School of Diplomacy and International Relations, Webster University Geneva, Geneva, Switzerland.
Received June 28th, 2011; revised July 26th, 2011; accepted August 10th, 2011.
ABSTRACT
The ‘Question of Palestin e’, as it is known in the United Nations (UN), is the long est unresolved human rights prob lem
on the world organization’s agenda. It is primarily a question about the right to self-determination of the Palestinian
people. This is a right that, according to well-established international law, existed in favor of the indigenous inhabi-
tants of Palestine and continues to exist today, although its exercise has been denied in violation of international law.
This contribution examines the development of this right and how it exists today.
Keywords: Palestine, Human Ri ght s, International Law, Self-Determination
1. Introduction
The ‘Question of Palestine’, as it is known in the United
Nations (UN), is the longest unresolved human rights
problem on the world organization’s agenda [1]. It is the
issue that perhaps more than any other tests the integrity
and effectiveness of the international community’s re-
solve to deal with human rights and to ensure respect for
the rule of international law.
To understand the importance of Palestine in the con-
text of the international community’s commitment to
international human rights law it is valuable to under-
stand how this problem came on to the United Nations
agenda in the first place. This is a question about which
there is significant confusion, in part because it has usu-
ally been answered in political terms rather than by ref-
erence to the agreed norms of internatio nal law.
While the UN was created in 1945, the question of
Palestine dates back to much earlier. For the better part
of a century, Palestinians have been denied their most
fundamental human rights and treated as second-class
citizens of the international community. The most seriou s
violation of human rights has involved the denial of the
Palestinian people’s right to self-determination. By
claiming a religious, historical or ancient right to govern
Palestine and its people the Zionist movement that be-
came modern day Israel denied the majority of inhabi-
tants living in Palestine their right to self-determination.
2. The Legal Right of Self-Determination
Self-determination is a right over which there has been
some difference of opinion. Erin Jenne, for example,
traces the idea back to around 1917 attributing its first
expression to US President Woodrow Wilson [2 ]. Leen co
Lata, a national liberation fighter turned academic, traces
the concept behind the right to the 16th Century Enlight-
enment [3]. Even these starting points, however, fail to
take into account the historical efforts of the earliest or-
ganized human societies “to guard the independence of
the social group [4].”
When in the 19th Century in “Europe and Latin Amer-
ica the principle of nationalities appeared” it manifested
itself as the principle of self-determination [5]. In accor-
dance with the principle, whatever might have been the
case concerning groups of people within already recog-
nized states,1 groups of people not yet falling under the
sovereignty of any state had the right to determine their
own future. This principle was well established by 1928
when it was given significant support by the agreement
of states not to use force as an instrument of foreign pol-
icy [6]. From this time onwards, the acquisition of terri-
tory by force, which had been previously allowed under
international law, was now illegal. This point was em-
1The right of self-determination of people within existing states was
carefully circumscribed by the principle of uti possidetis that made it
very difficult to change existing national b orders.

Human Rights and Palestine: The Right to Self-Determination in Legal and Historical Perspective 112
phasized in article 2, paragraph 4 of the Charter of the
United Nations, which prohibits the u se force against the
territorial integrity or political independence of a state. The
Charter also reiterates the principle of self-determination.
Today the principle of self-determination is much bet-
ter defined. It is recognized in leading human rights trea-
ties [7-9], numerous UN resolutions [10,11], by the In-
ternational Court of Justice (ICJ),2 and by the over-
whelming majority of jurists as a leading principle of
international law [12].3 Some prominent jurists have
even declared the right to self-determination to be a
preemptory norm of international law or jus cogens [13].
And the ICJ has confirmed that the right to
self-determination is of an erga omnes nature, thus sup-
porting the interest of all states in ensuring its respect.4
As Professor Hannum has stated “perhaps no con-
temporary norm of international law has been so vigo-
rously promoted or so widely accepted as the right of all
peoples to self-determination [14].” Today, as South Af-
rican Professor of Law John Dugard has observed, “the
right of self-determination is a legal right under interna-
tional law that is no longer seriously challenged [12].”
3. Distinguishing Different Situations of
Self-Determination
To understand the right to self-determination it is rele-
vant to understand the different situations to which it
may apply and how it has been applied in these different
situations. For each of these situations distinct rules and
understandings of international law have developed.
The first situation is that of peoples living under colo-
nialism or occupation [11].5 While these people are part
of an existing sovereign state they have a claim to their
own independent sovereignty based on their right to self-
determination. This right is created by the fact of coloni-
alization—they have been conquered and subjected to the
jurisdiction of a foreign state without their consent—or
occupation by a foreign and oppressive occupier. This is
the form of self-determination that is most widely ac-
cepted and which most clearly p rovides th e right to one’s
own independent state.6 It applies to Palestine today ac-
cording to numerous UN General Assembly resolutions
[11]. Whether it applied in 1920 when Palestine became
a Mandated territory is more controversial because this
right is mainly the creation of the Charter of the United
Nations and UN resolutions after 1945. There is good
reason to believe that it did, however, as article 22 ex-
plicitly speaks about Mandated territories having the
right to become “independent nations” [15].
The second situation to which self-determination ap-
plies is that of peoples who are part of an existing sover-
eign state.7 It is perhaps the most controversial form of
self-determination. It is the form to which the principle
of uti possidetis8 has the most relevance and conse-
quently the form under which it is the most difficult to
claim a right to an independent state, lacking evidence of
significant oppression or massive violations of human
rights. It is the right that Palestinians as part of the Otto-
man Empire and which Jewish citizens of a Palestinian
state would have. What is controversial about this righ t is
not its existence today, but what it actually provides the
peoples who are relying on it as a legal right. Likely it is
limited to the right to have one’s fundamental human
rights respected and only to have the right to form an
independen t state when the ex isting so vereign has proved
itself unable or unwilling to protect the fundamental hu-
man rights of the peoples claiming self-determination.
The third situation is that of peoples who are not part
of any existing sovereign state. Th ese peoples inhabit the
land because they are indigenous since time immemorial,
have inhabited it while under the authority of another
state that has ceased to exist or has relinquished its title,
or because they have through some other means acquired
lawful title. In regards to this situation of self-determi-
nation it is important note that before 1928 title to terri-
tory could likely be acquired by the use of force or
through conquest. In 1928 this change was agreed upon
in the Kellogg-Briand Pact—as a principle of interna-
tional law—and henceforth the acquisition of territory by
force was no longer lawful. It is this third situation that
applies most clearly to Palestine. While Palestine was
part of the Ottoman Empire until World War I, after-
wards it was only und er British occupation. The fact that
Britain never annexed Palestine nor exercised permanent
sovereignty over it—instead agreeing to govern Palestine
as a temporary Mandatory—consequently means that the
right of self-determination always remained with the in-
digenous people without interruption since at least the
end of World War I. Who inhabited Palestine hundreds
or thousands of years ago is irrelevant. What is relevant
is the nature of the government just before and just after
1928 and who were the indigenou s people at this time. It
is also relevant to understand whether these people ever
voluntarily gave up their right to self-determination.
2See, for example,
L
egal Consequences for States of the Continue
d
P
resence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276, Advisory Opinion,
I
CJ Reports pp. 31-32, paras. 52-53 (1971) and Western Sahara,
Advisory Opinion, ICJ Reports pp. 31-33, paras. 54-59 (1975).
3Citing several jurists who hold of this view at note 127.
4Case Concerning East Timor (Portugal v. Australia), ICJ Reports90
(30 June 1995).
5Also see Western Sahara Case, supra, note 2.
6Western Sahara, supra note 2, at pp. 12, 33, and 68.
7See, for example, Aaland Island Case, LONJ (1920) Spec. Suppl., no.
3, p. 3 (holding that national minorities were not entitled to self-de-
termination allowing the creation of an independent state).
8This principle protects the sanctity of international borders existing at
the time of independence of a state.
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Human Rights and Palestine: The Right to Self-Determination in Legal and Historical Perspective 113
4. The History of the Palestinian
Self-Determination
The history of Palestine goes back thousands of years.
The Zionist movement [16] and even the Israeli govern-
ment today make claim to the land based on historical or
ancient title, which it is so metimes claimed has been rati-
fied by more recent events [17].
The founders of Israel repeatedly point out that peop le
have lived in the region that is generally known as Pales-
tine for thousands of years. Indeed about two thousand
years ago the region was inhabited by Jewish tribes, but
even before that the earliest evidence of human presence
in the region is of the Canaanites who were likely the
decedents of people who migrated from the Arabian Pe-
ninsula around 3500 B.C. [18].
From 1200 BC to about 133 AD the Hebrew people
were a considerable part of the population of the region
known to the Romans as Judea and Assyria. At this time
it was commonplace for one people to defeat another and
take their land. Under the existing customs between peo-
ple such transfers of land were part of usual affairs and
usually were accompanied by the enslavement of the
conquered people. In any event, the conquest of another
people and their land was not illegal as the concept of
modern international law did not ev en exist at the time.
The Arab population again moved into the region
around 600 AD bringing with them the Arab language
and Islam. From the late 600’s the region was ruled by a
series of Arab-Islamic rulers cumulating with the Otto-
man Empire’s rule of the region. Using the ‘Millet sys-
tem’ of local administration the Ottoman’s ruled through
the proxy of local rulers. Palestine, for example, was
ruled from about 1840 to 1875 by the Arab tribal leader
al-Zaidani. The Ottoman rule was only briefly inter-
rupted by Napoleon’s incursion into the region between
1799 and 1812 and by the armies of the Albanian ruler of
Egypt Mohammed Ali between 1831 and 1840.
In 1880 about 20,000 Jews were living among a popu-
lation of 450,000 Palestinians. Th e majority of the popu-
lation of the region was Arab and this has remained true
until today when all of the areas that were historically
Palestine—both the occupied territories and the area the
UN mandated to be Israel—is taken into account.
In the late 1800s, the Zionist movement was already
acting to establish a Jewish homeland in Palestine, but it
had not yet clearly manifested an intention to act in vio-
lation of the rights of the Palestinian people. After World
War I the British occupied Palestine. The British con-
querors under General Edmund Henry Allenby could
have annexed the territory under existing rule of interna-
tional law, but they did not.
Even when the British made the Balfour Declaration in
1917 there was no mention of a Jewish State, but rather
only vague reference to a “national home for the Jewish
people [19].” Understood in the context of international
law, such a statement must have meant that a “national
home for the Jewish people” would only be established
in Palestine with the Palestinians’ consent. Moreover,
after a short period of military occupation and admini-
stration, the British agreed to administer Palestine as a
mandatory power of the ‘Allied Powers-created’ League
of Nations. The British were granted the League of Na-
tions Mandate under article 22 of the Covenant of the
League of Nations at a meeting held in San Remo, Italy
on 24 August 1920 [20]. This Mandate set the terms,
with Britain’s agreement, by which the international
community would ensure the fundamental right to self-
determination of the Palestinian people. The Mandate
was authorized by Article 22 of the Covenant of the
League of Nations that governed its interpretation and
implementation in relation to Palestine. The relevant part
of this article states that
certain communities formerly belonging to the Turkish
Empire have reached a stage of development where their
existence as independent nations can be provisionally
recognized subject to the rendering of administrative
advice and assistance by a Mandato ry until such time as
they are able to stand alone. The wishes of these commu-
nities must be a principal consideration in the selection
of the Mandatory [15].
The International Court of Justice (ICJ) described the
League of Nations mandates as “created, in the interests
of the inhabitants of the Territory, and of humanity in
general, as an international institution with an interna-
tional object—a sacred trust of civilization” and the “in-
ternational rules regulating the Mandate” as “constituting
an international status for the territory recognized by all
the Members of the League of Nations….”9 A Mandate
did not, in the words of th e Court “in volve an y cession of
territory or transfer of sovereignty” and the Mandatory
exercised its responsibility “with th e object of promoting
the well-being and development of the inhabitants.”10
Some writers have mischaracterized the League of Na-
tions Mandate for Palestine as one that does not call for
independence [21]. Article 22, however, indicates the
Mandate described in the paragraph quoted above was
the only Mandate applicable to communities “formerly
belonging to the Turkish [Ottoman] Empire” [15]. The
other Mandates were intended for societies which were
not yet developed to the extent that they could govern
9The Legal Consequences for States of the Continued Presence of South
A
frica in Namibia (South West Africa) notwithstanding Security
Council Resolution 276, Advisory Opinion, ICJ Reports 128, 132 (11
J
uly 1950).
10Id. at 132-133.
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Human Rights and Palestine: The Right to Self-Determination in Legal and Historical Perspective 114
themselves. Palestine had, however, achieved a signifi-
cant degree of development by the later years of Ottoman
rule and a large degree of self-sufficiency of government
under the de-centralized system of Millet administration
used throughout the Ottoman Empire [22]. The subse-
quent paragraphs of Article 22 must thus be read to apply
to the more limited mandates concerning African and
South Pacific communities. Indeed, the other Mandates
make reference to these geographic regions and do not
mention peoples who were living under the jurisdiction
of the former Ottoman Empire.
In the Mandate for Palestine, the League of Nations
makes it clear that it is being granted to Britain “for the
purpose of giving effect to the provisions of article 22 of
the Covenant to the League of Nations.”11 This statement
appears even before the Mandate text makes a brief
preambular reference to the Balfour Declaration. The
most important operative provision of the Mandate is
perhaps article 2 stating that
the Mandatory shall be responsible for placing the
country under such political, administrative and eco-
nomic conditions as will secure the establishment of the
Jewish national home, as la id down in the preamble, and
the development of self-governing institutions, and also
for safeguarding the civil and religious rights of all in-
habitants of Palestine, irrespective of race and religion
[15].
Other relevant articles of Mandate indicate that local
autono my is to be enco uraged (art. 3), th e Jewish agency
is to be recognized as a public body that is distinct from
but cooperates with Britain to implement the mandate
(art. 4), the integrity of Palestinian territory must be re-
spected (art. 5), and Jewish migration and the acquisitio n
of “Palestinian citizenship by Jews” is to be ‘facilitated’
(art. 6 and 7) [15] .
It has been argued that these provisions prov id e for the
creation of a Jewish state and relegated indigenous Pales-
tinians to mere secondary citizens in Palestine [23]. But
according to established international law at the time, and
today, this is unlikely to have been the case.
The Mandatory had the du ty to assist in the creation of
a state based on the wishes of the people living in Pales-
tine. This is evident from the references to “independent
nations,” the right to “stand alone,” and the “wishes” of
the affected people or communities as “a principal con-
sideration” in article 22 of Covenant [15]. As the founda-
tional authority for the Mandate, article 22 of the Cove-
nant controls its interpretation. Such an interpretation
using the ordinary words of article 22 of the Covenant
and the Mandate would appear to exclude the exercise of
the Mandate in such a way as would deny the indigenous
and majority of Palestinian people the right to create their
own nation or their ri g ht to self-det ermination.
The right to self-determination for peoples who were
not subject to claims of permanent sovereign by a state
provided for, and still prov ides today, for the recognition
of the will of the local community to determine th eir own
future. Thus by virtue of their right to self-determination
the Palestinian people—about 80% of whom were Mus-
lim or Arabs or both—had the right to decide their own
future without the interference of any foreign state, in-
cluding the Mandatory. Indeed Britain’s legal obligation
under international law was to facilitate the realization of
the right to self-determination by the Palestinian people.
The British did not act on this responsibility. Instead,
Britain worked with Jewish agencies and the Zionist
Movement to allow the fate of the Palestinian’ s people to
be decided by outsiders who occupied Palestine with the
assistance of Britain [24]. Not only did this constitu te the
denial of the Palestinians right to self-determination, but
it also violated Britain’s legal obligations as Mandatory.
In view of international law it created state responsibility
for an internationally wrongful act. The result of such an
act according to international law, is the creation of an
illegal situation. And the consequen ces of an illegal situ -
ation include the duty for all states not to recognize the
illegal situation created and the duty of the state creating
that situation to stop doing so and to restore the original
situation. These consequences are part of established
international law.
The advent of World War II focused the attention of
Palestinians of all persuasions on assistance to the allied
powers. The Palestinians likely thought their British al-
lies might favour their aspirations for independence, but
nothing could have been further from the truth.
When the UN was formed by the Allied Powers, they
did so with the guilt of the Nazi extermination of hun-
dreds of thousands of Jews haunting them. There was
likely an equal sense of guilt about the law and policies
that had obstructed Jews from fleeing the persecution in
Germany to the United States. When the UN began to
consider the ‘Que stion of Palestine’ immediately after its
creation it is not surprising therefore that both guilt and
past practices coloured its views. There was the feeling
of a need to provide the Jews an alternative to Germany,
while at the same time the lingering unwillingn ess of the
Allied Powers to accept Jewish migrants. Sending them
to Palestine must have seemed a convenient way out.
This was not immediately apparent to Palestinians and
their Arab neighbours. The Arab delegation to the Sep-
tember 1946 meetings in London discussing the future of
Palestine naively proffered constitutional proposals call-
ing for an independent Palestine made up of all Pales-
tinians [25]. These calls for an independent Palestinian
state were ignored.
11Supra note 27, at p. 74, first preambular paragraph.
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Human Rights and Palestine: The Right to Self-Determination in Legal and Historical Perspective 115
While Arab efforts were characterized by their com-
mitment to the self-determination of the Palestinian peo-
ple through the creation of a Palestinian state, the Zionist
efforts were aimed at creating a Jewish state, in Palestine,
preferably without indigenous Palestinians. They set
about this through th e intensified purchase of Palestinian
land, migration of Jews fro m abroad, lobb yin g of western
powers especially the United States, and the conduct of
violent attacks against Palestinian and British targets. As
a result the violence in Palestine increased significantly;
first because of attacks carried out by the Zionist move-
ment and then because of Palestinians attacks in response
as they increasingly recognized that their right to
self-determination was being denied. Eventually, the
British withdrew from Palestine.
Before withdrawing the British had broug ht the ‘Ques-
tion of Palestine’ before the UN in February 1947. The
Palestinians were represented by the Arab Higher Com-
mittee, while the Zionists were represented by th e Jewish
Agency for Palestine. More importantly however, were
the states behind these two representatives. The Pales-
tinians were supported by Arab states that were just es-
tablishing themselves and in some cases emerging from
colonization. The Zionists were supp orted by the w ealthy
Allied Powers, especially the United States, which had
even profited from the war, and the British, the
then-Mandatory over Palestine. The Arab states immedi-
ately called for an end to the British Mandate and the
creation of an independent Palestinian state. This was
however blocked by the Allied Powers who had com-
mitted themselves to creating a Jewish state in Palestine.
Instead a UN Special Committee on Palestine was
formed. This Committee several times called for the ur-
gent creation of a Palestinian state in which all Palestini-
ans could live togeth er [26]. It also reported on the Parti-
tion Plan, informing the UN General Assembly that it
was “contrary to the specific provisions of the Mandate
and in direct violation with the principles and objectives
of the Covenant,” moreover that the “imposition of parti-
tion on Palestine against the express wishes of the major-
ity of its population can in no way be considered as re-
spect for or compliance with” the Charter of the UN,
including the Palestinians’ right to self-determination
[27]. The General Assembly was thus unambiguously
informed that the Partition Plan would violate interna-
tional law—including the right to self- determination that
is enshrined in article 1 of the Charter of the UN.
The UN Special Committee on Palestine nevertheless
submitted two plans. One called for partition and the other
for a federal Palestinian state. On 23 September 1947 the
UN General Assembly formed an Ad Hoc Committee to
consider the two plans that were before it. In turn, the Ad
Hoc Committee created two Sub-Committees, which were
again split between non-Arab and largely Arab and
Arab-sympathizing states [28]. These Committees ren-
dered recommendations [28]. As one might have imag-
ined Sub-Committee 1 consisting of non-Arab states,
they recommended adoption of the Majority Plan with
only slight modifications [29]. Sub-Committee 2—which
had divided itself into three Working Groups to consider
respectively the Legal Problems, the Refugee Problem
and Constitutional Proposals and which reported
first—made several recommendations, including the
recommendation that an Advisory Opinion be requested
from the International Court of Justice [30]. The recom-
mendations were put to a vote and the recommendation
to seek an Advisory Opinion on the legality of the parti-
tion plan from International Court of Justice failed to get
sufficient votes [31]. It is noteworthy that the representa-
tive of the Arab Higher Committee addressing the UN
General Assembly Ad Hoc Committee opposed the
Sub-Committee 1 plan based on the fact that it consti-
tuted a “monstrous perversion of the principle of
self-determination in Palestine” [32]. Consequently, four
draft resolutions were presented to the Ad Hoc Commit-
tee. All three presented by Sub-Committee 2 (calling for
the Advisory Opinion, calling for action to assist Jewish
refugees, and calling for the establishment of a single
state of Palestine) were rejected [32].12 The single resolu-
tion for Sub-Committee 1 calling for adoption of the par-
tition plan was adopted [32].13 The Ad Hoc Committee
sent this recommendation to the General Assembly,
which began to consider it on 26 September 1947.
Within three days UN General Assembly Resolution
181 (II) was ad opted on 29 November 1947 based on the
recommendation. This UN General Assembly resolution
called for the creation of two states, one Arab and one
Jewish, while Jerusalem was to remain under a special
international regime [33]. It created Israel on 56% of
Palestine, despite it having less than 35% of the popula-
tion many who had been recently imported. Palestine was
left with just 44% of its own territory. After the adoption
of resolution 181, several other re- solutions were
adopted by the General Assembly that attempted to miti-
gate the worst effects of the human rights violations
caused to the Palestinian people [34].
The UN Security Council became involved when it
appeared that the British Mandatory could no longer
maintain peace and security in Palestine in the face of
mainly Israeli bombings of civilians and civilian admin-
istrative targets. The Security Council met several times
between 24 February and 14 May 1948 [35]. It adopted
five relevant resolutions mainly appealing for peaceful
resolution of the dispute between Arabs and Israelis or
12At 1633-34.
13At 1637.
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Human Rights and Palestine: The Right to Self-Determination in Legal and Historical Perspective 116
calling for action that was already too late, but never
ordering timely concrete action be taken on the ground as
its mandate allowed it to do [36-40].
During this time the Trusteeship Council, which was
responsible for guiding the decolonization of newly in-
dependent countries, was confined to the role of dealing
with the internationalization of Jerusalem. To this end it
adopted several resolutions [41-44] that established the
foundation for the in ternational consensus that Jerusalem
did not fall under the sovereignty of Israel.
On 15 May 1948 the United Nations ended the Man-
date of the British over Palestine, but even before it had
done this the independence of the State of Israel was de-
clared on 14 May 1948. The Palestinians and the Arab
states objected. The Arab states came to the aid of the
Palestinians, but with only a token force of abou t 20,000
soldiers the next day [45].
The Security Council reacted by focusing on the issue
of maintaining peace, without concern for the right to
self- determination or any other basic human rights of the
Palestinian people. It adopted a resolution calling for an
Armistice that treated both parties as being of equal fault
in the instigation of hostilities [46]. Despite the Security
Council’s apparent bias, the Arab countries one by one
responded by entering into General Armistice Agree-
ments with Israel between February and July 1949 [47].
These Armistice Agreements often gave the UN the role
of patrolling a Demilitarized Zone, which by the UN’s
own admission became zones from which Palestinians
were deported and not allowed to return [47].14
Several other armed confrontations ensued in the next
twenty-two years. As a consequence, what Israel was
‘offering’ the Palestinians dwindled from the Mandate
territory to just about 7.5% of this territory by the start of
the 21st century.15 In other words, today Palestinians are
being offered less than 10% of the land to which they are
entitled under international law. This already restricted
entitlement has continued to dwindle away through Is-
rael’s subsequent practices such as the building of a
separation Wall, the ad hoc confiscations of land for set-
tlements, and the latest decision to begin deporting Pal-
estinians from Palestinian land.
5. Evaluating Palestinian Self-Determination
and the Creation of Israel
The Zionist movement and later the Israeli authorities
immediately claimed that the UN General Assembly Re-
solution 181 created the Jewish state of Israel. In reality,
however, as indicated above, Israel’s independence was
claimed even before it was intended to be granted by the
UN. As a consequence Israel’s declaration was both a
violation of the still existing League of Nations Mandate
and a violation of the Palestinian peoples’ right to
self-determination, both of which contain international
legal obligations.
Furthermore, Israel’s claim to be created by the UN
General Assembly appears to be based on the fact that
the UN General Assembly Resolution had legally bind-
ing authority. Nothing in the Charter of the UN provides
for such authority. In fact the Charter expressly states
that the UN General Assembly makes “recommenda-
tions” (art. 10 - 14), except, for example, on the limited
subjects of budgetary matters (art. 17) and the admission
of new States[48].
The Zionist movement also relied on UN General As-
sembly Resolution 181 to claim their own right to
self-determination. While they undo ubtedly had th is right,
it was the right to self-determination with- in a state and
not to their own state in violation of the right to
self-determination of the Palestinian people. Their claims
were valid vis-à-vis a Palestinian state. They include the
human right to be treated equally with all Palestinians
with respect for their fundamental human rights. History
had shown that this was indeed possible.
The main challenge to the legitimacy of the creation of
Israel is the fact that it violated a fundamental right of the
Palestinian people. Israel’s creation violated the human
right of the Palestinians—the overwhelming majority of
the indigenous population of Palestine—to self-deter-
mination. Moreover, the UN General Assembly was
aware of this violation because of the reports of its own
Committees. Whether the UN General Assembly could
ignore this warning and act con trary to the Charter of the
UN is doubtful. As already indicated, the UN General
Assembly is a principal organ of the UN. It is bound by
the purposes of the UN that are stated in article 1 and by
the duty to respect the right to self-determination that is
stated in article 55 of the Charter of the UN. Nevertheless,
the General Assembly did ignore the advice of the UN
Special Committee on Palestine and adopted Resolution
181 containing a recommendation for a Partition Plan
dividing Palestine into two states [33].
The fact that the UN General Assembly acted by
making a recommendation has a consequence for the
legality of its action s. Although a recommen dation that is
consistent with international law might be considered to
‘reflect’ international law, a recommend ation that is con-
trary to international law must be interpreted consistent
with existing international law. If one accepts that the
right to self-determination—at least for people not sub-
ject to the permanent sovereignty of any other state—
existed when the UN was created in 1945 then the UN
General Assembly recommendation in Resolution 181
14At 57 and 58 citing the comments of UN Chief of Staff General
Riley.
15 This figure is based on the original League of Nations' Mandate as
compared with what Israeli Prime Minister Ariel Sharon was offering
in this 2000 ‘Peace Plan’.
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Human Rights and Palestine: The Right to Self-Determination in Legal and Historical Perspective 117
must be interpreted in a manner that is consistent with
the Palestinians’ right to self-determination. Such an in-
terpretation is also supported by the fact that when Re-
solution 181 was adopted the League of Nations Mandate
over Palestine was still in effect. The League of Nations
Mandate recognized that the Mandatory administered
Palestine in sacred trust for its inhabitants and that these
inhabitants must determine the future of their homeland
in accordance with their will. The will of the Palestinian
people was never allowed to be exercised because Gen-
eral Assembly Resolution 181 was interpreted to deny
the Palestinians’ voice in their own future—a fragrant
violation of their right to self-determination .
Finally, the claim that the League of Nations Mand ate,
by incorporating reference to the Balfour Declaration and
its language, created the right to Jewish state of Israeli
state is also in- consistent with the right of every people
not under the permanent sovereignty of a state to
self-determination that already existed at the time. The
Mandate must thus be interpreted consistent with the
right of the indigenous people to determine their own
future, including their express right to create an inde-
pendent state. To do so otherwise would run counter to
the principles stated in the Covenant of League of Na-
tions and in the Mandate itself and existing customary
international law.
Today the denial of the Palestinian peoples’ right to
self-determination still remains the single greatest obsta-
cle to ensuring human rights in Palestine and perhaps the
greatest test of the international community’s commit-
ment to the rule of international law and human rights
everywhere in the world.
6. Acknowledgements
The author is grateful to Ms Gala Maric, my assistant, for
her proofreading of this paper as well as Mr. Tomas Sol-
faro for his formatting and checking of footnotes. He is
also grateful to the editorial staff who remained patient
throughout the long process that it took to approve this
publication for their commitment and integrity. And fi-
nally the author wishes to thank Prof. Isabel Trujillo of
the Department of the Study of Politics, Law and Soci-
ety at Università di Palermo for providing useful com-
ments on earlier versions of this paper.
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