Stalled between seasons: the international legal status of Palestine during the interim period.

• Author: Dajani, Omar M.

What god shall resurrect us

in his flesh?

After all, the iron cage is shrinking.

The hangman will not wait

though we wail from birth

in the name of these happy ruins.

What narrow yesterdays,

what stale and shriveled years..

Even storms come begging

when the sky matches the gray

of the sand,

leaving us stalled between seasons

barricaded by what we see.([dagger])

Palestine first appeared on the United Nations' agenda as a question.(1) To a great extent, it remains one. The Palestinian people have sought for much of this century to achieve national independence, striving for international recognition of their right to determine freely their political status in the territory they claim as their own. In the 1960s, the Palestine Liberation Organization (PLO) emerged as the international representative of the Palestinian people and, since then, has played a central role in defining and pursuing their national aspirations. In 1993, the PLO and the government of Israel agreed to a Declaration of Principles on Interim Self-Governing Arrangements (DOP)(2) that established a framework for limited Palestinian self-government during an interim period, pending resolution of the permanent status of the territory occupied by Israel since 1967. Pursuant to the DOP, they have concluded a series of agreements elaborating upon and implementing transitional arrangements. The parties, however, have yet to agree on either from what or to what they are making a transition. Upon taking power, the Likud Government of Israeli Prime Minister Benjamin Netanyahu issued guidelines declaring that it "would oppose the establishment of a Palestinian state or any foreign sovereignty west of the Jordan River."(3) In contrast, a member of the Palestinian leadership has asserted that "[t]here will be neither peace nor security without an independent Palestinian state...."(4)

This disagreement regarding what Palestine will be prompts consideration of what Palestine is. In one of its few references to the future, the DOP states that elections for the Palestinian Council established to administer portions of the Occupied Palestinian Territories (OPT) during the interim period are to constitute "... a significant interim preparatory step toward the realization of the legitimate rights of the Palestinian people and their just requirements."(5) This declaration raises a number of important questions; foremost, what is the nature of "the legitimate rights of the Palestinian people"? Is the right to self-determination among them? If so, to what extent are the interim arrangements a "significant... preparatory step" toward their realization? And how do the interim arrangements -- particularly the establishment of the Palestinian Interim Self-Governing Authority (PA) -- affect the status of existing Palestinian public bodies in the international system?

In this essay, I undertake to answer these questions. I begin in Part One by reviewing the Palestinian claim to self-determination, outlining international legal treatment of the principle, and evaluating its applicability to the people and territory of Palestine. Next, in Part Two, I examine the Palestinian public bodies established in pursuit of Palestinian national rights by analyzing the structure and legal status of the PLO, the "State" of Palestine established by the Palestine National Council in 1988, and the PA created by the DOP and subsequent agreements. Finally, in Part Three, I try to define the legal status of Palestine as it is presently constituted, and to evaluate the extent to which it fulfills the legal requirements for the exercise of self-determination.

1. The Palestinian Claim to Self-Determination

   The principle of self-determination is the legal foundation on which the Palestinian people's struggle for national independence is based. In international practice, however, the principle of self-determination becomes a right only when invoked under certain circumstances, with the status of both the population and the territory concerned determining the viability of the exercise of self-determination. As will be seen, the Palestinians have attained broad international recognition of their right to self-determination in the OPT. Moreover, as I argue below, the territory they claim constitutes a viable self-determination unit.

   1. The Principle of Self-Determination

      Self-determination has come to elicit broad recognition as an international human right.(6) The United Nations Charter states explicitly that "respect for the principle of equal rights and self-determination" should form the basis for relations among nations in the world system(7) and provides implicitly for its vindication in its provisions regarding the disposition of trusteeships and non-self-governing territories.(8) The 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States (hereinafter Declaration on Friendly Relations), moreover, characterizes the principle as a right, proclaiming that "by virtue of the principle of... self-determination of peoples all peoples have the right freely to determine, without external interference, their political status."(9) Similarly, both the International Covenant on Civil and Political Rights and the Covenant on Economic, Social, and Cultural Rights affirm that "all peoples" have a right to self-determination, and that "[b]y virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development."(10) By the express terms of these international instruments, self-determination has been elevated to the status of a right.

      The scope and legal force of the right, however, have varied in application. As Professor Cherif Bassiouni has suggested:

      `Self-determination' is a catch-all concept which exists as a principle,

      develops into a right under certain circumstances, unfolds as a process

      and results in a remedy. As an abstract principle it can be enunciated

      without reference to a specific context; as a right it is operative only in

      a relative context, and as a remedy, its equitable application is limited

      by the rights of others and the potential injuries it may inflict as

      weighed against the potential benefits it may generate.(11)

      Central among the equitable concerns to which Professor Bassiouni alludes has been regard for the sovereignty of states. Because "peoples" can be defined broadly or narrowly, the right of self-determination can be construed to bestow national rights upon almost any minority group, with potentially destructive consequences for the internal stability and territorial integrity of States. Perhaps unsurprisingly then, States generally have proven hesitant to interpret the right to self-determination as conveying the right to secession from a sovereign State.(12) Accordingly, the Declaration on Friendly Relations makes clear that it does not "authoriz[e] or encourag[e] any action which would dismember or impair the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of self-determination of peoples."(13) Self-determination, therefore, has not been accepted to be the unqualified right of all peoples.

      Indeed, notwithstanding Judge's Dillard's assertion in the Western Sahara Case that "lilt is for the people to determine the destiny of the territory and not the territory the destiny of the people,(14) the status of a territory has proven significant in determining whether and how a given people will exercise self-determination. As noted above, States generally have been unwilling to recognize that a right of self-determination extends to peoples residing within the borders of an existing State if the exercise of that right would compromise the sovereignty or territorial integrity of that State. In these situations, State practice has been to regard self-determination as a principle, rather than as a right. As Crawford concludes, "[Self-determination] is not a right applicable directly to any group of people desiring political independence or self-government. Like sovereignty, it is a legal principle. It applies as a matter of right only after the unit of self-determination has been determined by the application of appropriate rules."(15) The question, then, is how to determine what constitutes a "self-determination unit."

      The archetypal self-determination units are former mandated territories and colonies. The U.N. Charter places dependent territories into two categories: trusteeships and non-self-governing territories.(16) The principle of self-determination was a basic premise of the Charter's provisions regarding the disposition of trusteeships,(17) and it was gradually accepted to be relevant to the administration and disposition of other non-self-governing territories as well. In its 1971 Namibia Opinion, the International Court of Justice (I.C.J.) determined that State practice, as reflected in the General Assembly's adoption of the Declaration on the Granting of Independence to Colonial Countries and Peoples, and in "the political history of mandated territories in general," indicated that international law had come to require application of the principle of self-determination to all non-self-governing territories that had been under colonial regimes.(18) This view was affirmed by the I.C.J. in the Western Sahara Case.(19)

      The history of decolonization consequently provides some basis for identifying non-self-governing territories whose peoples are entitled to self-determination. Chapter XI of the U.N. Charter offers only vague guidance for determining which territories and or peoples qualify, referring simply to "territories whose peoples have not yet attained a full measure of self-government."(20) As Crawford states, "[t]he meaning of these terms is not self-evident and has not been entirely settled by subsequent practice.(21) He notes that Article 74 of the Charter...