TRUMPING THE LEGAL FORMALISM

ABDULAZIZ ALMUSLEM

14 June 2011

Critical analysis of the ‘A Performance-based Road Map to a Permanent Two State Solution to the Israeli-Palestinian Conflict’ (2002) in the light of the international law of self-determination.

Prepared by: Abdulaziz Almuslem

Course Convenor: Dr.  Catriona Drew

Tutor: Dr. Misa Zgonec-Rozeil

Introduction

Self-determination outside the colonial context is described as indeterminate and controversial.[1] In his separate opinion in the Advisory opinion on Kosovo, Judge Abdulqawi A. Yusuf explained that the International Court of Justice (ICJ) has ‘unfortunately failed to seize this opportunity, which would have allowed it to clarify the scope and normative content of the right to external self-determination, in its post-colonial conception….’[2]

In analyzing the Road map I use self-determination in the colonial context.  I do this as ‘it is only in the colonial context that there exists a sufficient level of international consensus on the rules governing the exercise of the right of self-determination.’[3]

The content of the law is made up of process and substance.  The issue is whether the procedure the Road map adopts recognizes the content of the right of self-determination.  In this paper, I argue that the Road map has trumped the legal formalism of the law for a more pragmatic (political) outcome.

The Legal Framework

Article 1 (2) of the United Nations (UN) charter states ‘[the purposes of the UN are] to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.’[4] Self-determination is a right of peoples.[5] While it is referred to as a principle in the English version of the UN charter, the French text refers to self-determination as a right.  No version of the charter takes precedence over the other.[6]

The East Timor Case describes self-determination as erga omnes which ‘creates a legal obligation on all states.’[7] Self-determination is also considered customary international law by the ICJ.[8]

Process and Free Choice

Catriona Drew maintains that self-determination has discernible core content.  The first half of this core is the entitlement to process leading to free choice.[9] The advisory opinion on the Western Sahara affirmed this free choice when it made reference to the UN covenant on Economic, Social and Cultural Rights.  Article 1 (1) states ‘by virtue of th[e] right [of self-determination, the peoples] freely determine their political status and freely pursue their economic, social and cultural development.’[10] Thomas Franck also writes that it has become ‘standard practice’ in the past 3 decades to have colonial peoples participate in the genuine act of free choice.[11]

This free choice is emphasized in the United Nations General Assembly (UNGA) resolutions.  UNGA Resolution 1541 states ‘(a) Emergence as a sovereign independent state (b) Free association with an independent state; or (c) Integration with an independent state’ as the possible outcomes of self-determination.[12] UNGA Resolution 2625 also lists alternatives in realizing self-determination.  It lists (a) the establishment of a sovereign and independent State (b) free association or integration or (c) the emergence into any other political status freely determined by a people as the modes of implementing the right of self-determination.[13] Essentially, self-determination is a right to options.[14]

UNGA Resolution 1541’s sister resolution, UNGA Resolution 1514, talks of ‘complete independence and freedom’ of the people concerned, which ‘weighs in the favor of independent statehood’ as a necessary outcome.  UNGAR1514 was hastily superseded by the subsequent resolutions which favored process.[15] Judge Hardy C. Dillard’s separate opinion in the Western Sahara Case highlights this point.  When Spain made the argument that self-determination necessitates independence, the Judge replied

I can find nothing… in the legal aspects of the right itself which compels such conclusions.  On the contrary it may be suggested that self-determination is satisfied by a free choice, not by a particular consequence of that choice or a particular method of exercising it.[16]

In the case of the Western Sahara, the ICJ explained that validity of the principle of self-determination is defined as the need to pay regard to the freely expressed will of the peoples.  In the Western Sahara the UN mission there found ‘the population, or at least almost all those persons encountered by the Mission, was categorically for independence and against the territorial claims of Morocco and Mauritania.’[17]

Procedure

The procedure to realizing self-determination is left to the discretion of the UNGA.[18] Drew notes that this discretion is not unfettered.[19] She explains that the Court maintained the ‘consulting of the inhabitants’ as a ‘requirement’, where ‘free and genuine expression’ of the will of the people is ensured.[20]

Paul Williams and Francesca Pecci also write about procedure to self-determination.  They offer an approach to ‘bridging the gap’ between sovereignty and self-determination.  They maintain this approach is based on state practice.[21] They explain that the three core entitlements of earned sovereignty are (1) shared sovereignty: an initial stage where both the state and substate exercise sovereign authority (2) institution building: where the substate would begin constructing self government institutions (3) determination of final status: where referendum or [my emphasis] a negotiated settlement determines the status of the sub state.[22]

Williams and Pecci use East Timor, the Road map among other cases as example of the practice.  In the case of East Timor, Drew highlights the departure of the peace process from the legal formalism of self-determination to institutional pragmatism.[23] She adds that ‘a peace process may be invoked to trump rather than translate the legal framework’.

I maintain that it is also possible to trump or translate the legal framework of self-determination within William and Pecci’s approach to self-determination.  By including negotiations as an alternative component to self-determination, William and Pecci’s approach has allowed for this outcome.

Substance

Free choice without substance would make the right meaningless.[24] However this is not as obvious as it may seem.  This is best highlighted in the oral proceedings of the East Timor Case.  While Australia was ‘exploiting oil resources’ from the East Timorese, it argued such actions presented no impediment to the free choice of the people of East Timor.[25] Judge Rosalyn Higgins in response called this argument by Australia ‘legal deconstructionism.’[26] This would ‘empty the right of self-determination of any meaningful content.’[27]

The substantive content in self-determination is recognized by the ICJ in its Wall Opinion.  The court said that along with the settlements and annexation of Jerusalem, the wall ‘severely impedes the exercise by the Palestinian people to its right of self-determination….’[28] The Namibia Opinion also made the point of territory as a right of the people.[29]

Drew maintains that substantive entitlements in self-determination are both ‘implicit and explicit in the law.’[30]

The Roadmap and Self-Determination

All three elements of William and Pecci’s approach – (1) shared sovereignty (2) institution building (3) final settlement – are in the road map.  The first phase of the Road map involves the building of Palestinian institutions of self government.  An entire section in phase one concerns the constructing of institutions. The second phase of the Road map focuses on the transition to statehood.  Evident here is the entitlement of sharing sovereignty.  This sovereignty is to be shared by Palestine and the Quartet.  The Road map talks of an ‘enhanced international role in monitoring transition, with the active, sustained, and operational support of the Quartet.’

Phase three calls for a ‘settlement negotiated between the parties based on UNSCR 242… ends the occupation that began in 1967’.  This is the determination of a final settlement.

However despite all three elements evident in the Roadmap, the core content of self-determination is not directly addressed.

Free Choice

The Advisory Opinion on the Western Sahara explained that the General Assembly has in the past dispensed with the requirement of consulting the inhabitants of a given territory.  However the court further noted that this was only the case where the concerned population was not considered a people, or the case of a conviction that the consultation was ‘totally unnecessary’ in view of special circumstances.

The ICJ has acknowledged the Palestinians as a people entitled to self determination in its Advisory Opinion.  It stated ‘as regards the principle of the right of peoples to self-determination… the existence of a Palestinian people is no longer in issue… such existence has moreover been recognized by Israel in the exchange letters of 9 September 1993….’[31] Antonio Cassese also adds that ‘Resolution 3236(XXIX), [is] a major instrument that reaffirms the Palestinian right to self-determination’.[32]

The Road map calls for a two-state solution.  However this solution does not factor in the ‘free and genuine expression’ of the will of the people.[33] It is instead superimposed.

The Palestinian claim to self determination is divided between the two representative institutions, Hamas and Fatah.[34] Hamas’s claim for self-determinations extends over all of historic Palestine.[35] Fatah’s claim for self-determination extends to the West Bank and Gaza Strip.[36] It is evident that there are different views on the political outcome of the exercise of self-determination by the Palestinians.

However this formalism is trumped by UNSCR 1515.  The resolution endorses the two-state outcome.[37] John Quigley explains that ‘the major powers insisted they would not deal with a Hamas-led Palestinian Authority until and unless Hamas accepted Fatah’s historic compromise.’[38] The compromise being Fatah’s acceptance of claiming self-determination on only the West Bank and Gaza Strip, as opposed to its original position claiming all of historic Palestine.  Hamas clarified that it did not advocate a two-state approach.[39] Such a claim by Hamas is relegated as “politically unacceptable.”[40] The Road map specified nothing about consulting the will of the people.[41]

Substance

The Road map does call on a negotiated settlement based on UNSCR 242.  The resolution calls for the withdrawal of Israeli armed forces from the territories occupied.[42] At first glance this may seem substantive, however this resolution ‘did not even address the issue of Palestine, nor recognize a Palestinian right of self-determination’.[43]

The Roadmap further fails in mentioning any provision concerning the construction of the wall.[44] Furthermore it does not identify Israel’s violation of international law[45] in occupying the Palestinian territory.  It calls for the establishment of a Palestinian state with provisional borders, which are a result of a negotiated settlement.  The provisional borders to be settled with further negotiations could be based on what the court considers a ‘Fiat Accompli’ prejudging future boundaries between the two states.[46]

Conclusion

The two core entitlements of self-determination are not observed by the Road map.  The Road map does not specify any method to ascertain the “free and genuine expression” of the will of the people.  Instead the Road map endorses a two-state solution, skipping that process.  The Road map does not directly address the pressing substantive entitlements of the Palestinian people – such as the danger of the wall prejudging a future boundary.  While procedurally the Road map meets the all three elements of earned sovereignty, it has trumped the legal formalism of self-determination.

Bibliography

Table of Cases

Accordance with International Law of the Unilateral Declaration of independence in Respect of Kosovo (Advisory Opinion, 2010) ICJ, http://www.icj-cij.org/docket/files/141/15987.pdf. (accessed April 5th, 2011).

Case Concerning East Timor (Portugal v. Australia) [1995] ICJ Rep.

Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep.

Western Sahara (Advisory Opinion) [1975] ICJ Rep.

What are the Legal Consequences for States to the Continued presence of South Africa in Namibia, notwithstanding Security Council Resolution 276 (Advisory Opinion) [1970] ICJ Rep.

Treaties and Other International Law Instruments

R. Higgins, Final Oral Argument, CR 1995/13.

Report of the Special Committee on the Situation with regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, (1975) UN Doc A/10023/Add 5 11.

UN Charter (Adopted 26 June, 1945, entered into force 24 October 1945) San Francisco.

UNGA Res 1514 (XV) (14 December 1960).

UNGA Res 1541 (XV) (15 December 1960).

UNGA Res 2625 (XXV) (24 October 1970).

UNSC Res 1515 (19 November 2003) UN Doc S/Res/1515.

UNSC Res 242 (22 November 1967) UN Doc S/Res/242.

UNSC Res 446 (7 March 1979) UN Doc S/Res/446.

UNSC Res 478 (20 August 1980) UN Doc S/Res/478.

Secondary Sources

Antonio Cassese, Self-determination of Peoples, (CUP, Cambridge 1995)

Antonio Cassese, ‘The Israel-PLO Agreement and Self-Determination’ (1993) 4 EJIL.

Catriona Drew, ‘The East Timor Story: International Law on Trial’ (2001) 12 EJIL.

Catriona J Drew, ‘Self-Determination, Population Transfer and the Middle East Peace Accords’ in Stephen Brown (ed), Human Rights, Self-determination and Political Change in the Occupied Palestinian Territories (Martinus Nijhof Publishers, The Hague 1997).

David Harris, Cases and Materials on International Law (7^th edn Sweet & Maxwell, London 2010.

Hurst Hannum, ‘Rethinking Self-determination’ in Robert McCorquodale (ed), Self-Determination in International Law (Ashgate Dartmouth, Aldershot 2002).

Iain Scobbie, ‘Unchart(er)ed Waters?: Consequences of the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory for the Responsibility of the UN for Palestine’ (2006) 16 EJIL.

James Crawford, ‘Outside the Colonial Context’ in Self-determination in the Commonwealth (Aberdeen University Press, Aberdeen, 1988).

James Crawford, ‘The Right of Self-Determination in International Law: its Development and Future’ in Philip Alston (ed), Peoples’ Rights, (OUP, Oxford 2002)

John Quigley, ‘Self-Determination in the Palestine Context’ in Susan M, Akram, Michael Dumper, Michael Lynk and Iain Scobbie (eds), International Law and the Israeli-Palestinian Context (Routledge, Oxon 2011).

Paul Williams and Francesca Pecci, Earned Sovereignty: bridging the Gap Between Sovereignty and Self Determination’(2004) 40 Stanford Journal of Intl’L.

Stephanie Koury, ‘Legal Strategies at the United Nations: A Comparative Look at Namibia. Western Sahara, and Palestine’ in Susan M, Akram, Michael Dumper, Michael Lynk and Iain Scobbie (eds), International Law and the Israeli-Palestinian Context (Routledge, Oxon 2011).

Thomas M Franck, ‘The Stealing of the Sahara’ (1976) 70 AJIL.