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What Are The Palestinian Collective and Individual Rights Under International Law by Faith Zeadey and Elaine Hagopian

Frequently Asked Questions

Fact sheet # 7

 

What Are The Palestinian Collective and Individual Rights Under International Law?

 

Professor Faith Zeadey, Sociology, Worcester State College, Worcester, MA

Professor Elaine C. Hagopian, Professor Emerita of Sociology, Simmons College, Boston, MA

What are the historical events surrounding the denial of these rights to date?

Collective Rights.

[See Fact Sheets #s One and Two in the TARI series.] The Zionist movement in Palestine conquered 78% of Palestine in the 1948 war, and transformed that area into the state of Israel. The rest of Palestine, the West Bank and East Jerusalem (20% of historic Palestine) was occupied and later annexed by Jordan; and the Gaza Strip (2% of historic Palestine) was administered by Egypt. Palestine as a country ceased to exist as a national body. In the June 1967 war, Israel conquered and occupied the West Bank, East Jerusalem, and Gaza, thereby effectively bringing all of Palestine under its control. Israel’s conquest of all of Palestine was aimed at precluding Palestinian statehood, and hence territorial sovereignty on Palestinian land now controlled by Israel. Palestinians are nonetheless entitled under international law to their collective rights of self-determination and sovereign statehood on their historic national territory. [See below.]

Individual Rights

Before, during and after the 1948 war, 83% of the indigenous Palestinians, i.e., 750,000, were ethnically cleansed from the Zionist-conquered 78% of Palestine. They became known as the ’48 refugees. Additionally, a significant portion of the 150,000 Palestinians who managed to remain in what became Israel in 1948 saw their lands expropriated by the Israeli authorities. They are known as the ’48 internal refugees. As a result of the June 1967 war, some 350,000 Palestinians were displaced from the West Bank, Gaza and East Jerusalem, some of them refugees for the second time. Today, there are five million Palestinian refugees, of which 3.6 million are registered with UNRWA (United Nations Relief and Works Agency) in camps in the 1967 Israeli-occupied territories and surrounding Arab states. The remainder non-camp refugees are scattered throughout the world, including those within Israel and the Arab region. Those registered with UNRWA are registered for aid. The UNRWA registration does not include the full count of refugees, as is so often mistakenly assumed. All of the refugees are individually entitled by international refugee rights laws to return to their homes and property, and to be fully compensated for damage done thereto, and for lost income therefrom. Israel refuses to acknowledge responsibility for the expulsion of Palestinians from Palestine and their right of return, fearing the demographic challenge they would offer to the Jewish state. [See below.]

What are the major international laws governing Palestinian Collective and Individual Rights?

Collective Rights

United Nations General Assembly Resolution 181(II) of November 29, 1947 recommended partition of Palestine into a Jewish State and a Palestinian Arab State. It passed by thirty-three votes for, thirteen against, and with ten abstentions. The Palestinian/Arabs did not accept the partition plan, charging it to be both illegal and immoral for the United Nations to give away the major portion of their historic country to the Zionists. The Zionists accepted it as a tactical step toward the full control of all of Palestine. What they really accepted was the call for establishing a Jewish state in Palestine. They never really accepted the other parts of the resolution, the most important of which called for a Palestinian/Arab State, for Jerusalem as a

separate body under a UN Trusteeship arrangement, and fixed borders. The Zionist declaration of statehood on May 15, 1948 was rooted in UNGA 181 (II), but only that part which called for a Jewish State. Nonetheless, the principle of two states was established.

For Palestinians and other Arabs in those early post-1948 war, the focus was on the individual right of return of Palestinian Refugees as was demanded by United Nations General Assembly Resolution 194(III) of December 11, 1948. It was assumed that return also meant restoration of Palestinian national self-determination in historic Palestine. With the establishment of the Palestine Liberation Organization in 1964, and especially after the June 1967 war, the focus was on the liberation of Palestine from Zionist ideological domination, and the establishment of a democratic, secular state in all of Palestine. This became the active program especially when Arafat became Chairman of the PLO in 1969. The Palestinian struggle to achieve self-determination in Palestine was further legitimated by United Nations Resolution 2787 of December 6, 1971, which was reaffirmed in UNGA 2955 (XXVII) of December 12, 1972. The 1971 resolution

1. Confirms the legality of the peoples’ struggle for self-determination and liberation from colonial and foreign domination and alien subjugation, notably in southern Africa ..., as well as the Palestinian people, by all available means consistent with the Charter of the United Nations;

2. Affirms man’s basic human right to fight for the self-determination of his people under colonial and foreign domination;

3. Calls upon all States dedicated to the ideals of freedom and peace to give all their political, moral and material assistance to peoples struggling for liberation, self-determination and independence against colonial and alien domination.

After the 1973 war, Chairman Arafat and the PLO began to adopt a two-state solution concept introduced by the Democratic Front for the Liberation of Palestine (one of the political groups within the PLO). The Arab States facilitated the opportunity for Chairman Arafat to address the United Nations General Assembly on November 13, 1974. From that point on, the two-state solution was basically embraced, although not clearly developed until later. Arafat’s address was followed by United Nations General Assembly Resolution 3236 (XXIX) of November 22, 1974, Recognizing the Rights of the Palestinian People. It stated

The General Assembly

Recalling its relevant resolutions which affirm the right of the Palestinian people to self-determination, 1. Reaffirms the inalienable rights of the Palestinian people in Palestine, including: (a) The right to self-determination without external interference; (b) The right to national independence and sovereignty;

2. Reaffirms also the inalienable right of the Palestinians to return to their homes and property   [here referring to individual rights, discussed below] from which they have been displaced and uprooted, and calls for their return.

During the 1970s, and particularly the 1980s, the PLO received wide recognition as the sole representative of the Palestinian people, and support for a two-state solution. In 1980, the European Community issued the Venice Declaration recognizing the PLO and supporting a two-state solution. Israel fearing pressure to enter into negotiations for a two-state solution [as well as the right of return], launched the 1982 invasion of Lebanon designed primarily to destroy the PLO as the symbol and representative of the national rights of the Palestinian people. Although the PLO was considerably weakened, it was not destroyed.

Based on the political tender created by the December 9, 1987 Palestinian intifada in the 1967 Israeli-occupied territories, The Palestine National Council, the Parliamentary Body of the Palestine Liberation Organization, voted to declare a Palestinian state and rooted it legally in the original UNGA 181(II) partition plan of November 29, 1947. Given the fact the Zionist movement had rooted its declaration in UNGA 181(II) as well, the Palestinian action gave the principle of a two-state solution conclusive legitimacy.

Part and parcel of the Palestinian declaration was acceptance of United Nations Security Council Resolution 242 of November 22, 1967. This meant that the PLO recognized the state of Israel officially for the first time, hence solidifying the two-state solution. The relevant paragraph called for

1(ii). Termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force.

UNSC 242 also emphasized and called for

The inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every State in the area can live in security.

1(i). Withdrawal of Israel [sic] armed forces from territories occupied in the recent conflict.

2(b) Affirms the necessity for achieving a just settlement of the refugee problem [see below and note that UNGA 194(III) is the only resolution relating to refugees].

Up until July 31, 1988, Jordan was considered the party for any negotiations regarding the 1967 Israeli-occupied territories, since it basically held the West Bank and East Jerusalem after the 1948 war. On August 1, 1988, King Hussein relinquished legal claims to representing the Palestinians in the territories to the PLO. His statement came less than four months before the Palestinian Declaration of Statehood. Therefore, cleared of Jordanian claims, the territorial focus for the Palestinian state was on the occupied territories. However, there is nothing in UNSC 242 that legally revokes the original partition plan under UNGA 181(II). In fact UNSC 242 is military withdrawal agreement. None of its provisions negate any of the previous UN resolutions regarding Palestinian collective rights to self-determination and national sovereignty, nor the UN resolutions concerning Palestinian individual rights of return.

Hence, it was assumed that Palestinian statehood would at the very least be on all of the occupied territories, and possibly on the greater land base envisioned in UNGA 181(II). Hanan Ashrawi has been quoted as saying that the PLO was willing to concede the terms of 181(II), but only on the basis that all of the occupied territories would be totally evacuated by Israel, and a fully sovereign Palestinian state would be established there. However, as noted below, UNGA 194 (III) calling for the right of return of Palestinian refugees to their original property in Israel proper with full compensation, was never conceded. In fact, Ashrawi as spokesperson for Arafat, reaffirmed UNGA 194 (III).

Under international law, which includes the United Nations Declaration of Human Rights, the Fourth Geneva Convention, and the numerous UN resolutions calling for Palestinian national self-determination and sovereignty, the Palestinian case for collective rights is solid.

However, The Oslo process was used by the Israel and the United States to attempt to subvert Palestinian self-determination and full sovereignty. The present Al Aqsa Intifada is a refusal to accept Israeli/US diktats.

Individual Rights

Recognizing its special responsibility for the Palestinian refugees, whose plight resulted from the November 1947 UNGA 181(II) partition plan and the subsequent 1948 war, the United Nations General Assembly enacted Resolution number 194 (III), December 11, 1948. This resolution called for “Establishing a U.N. Conciliation Commission, Resolving that Jerusalem Should Be Placed Under a Permanent International Regime, and Resolving That the Refugees Should Be Permitted to Return to Their Homes”. Paragraph 11 specifically

11. Resolves that the refugees wishing to return to their homes and live at peace with their neighbours, should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.

There are several factors embodied in Paragraph 11 of UNGA 194 (III), which require elaboration. First, the U.N. General Assembly called for the return of refugees specifically to their original homes. Other options were not suggested such as resettlement, or absorption in countries of refuge. Second, compensation should be paid to those not wanting to return, but also to those returning “for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.” It is not either return or compensation as so many mistakenly read this Paragraph. Third, UNGA 194 (III) is tied into existing “principles of international law” regarding refugee rights, and reaffirms them regarding the case of Palestinians. Fourth, a special U.N. agency was created by UNGA 194 (III), i.e., the U.N. Conciliation Commission for Palestine, not only to resolve the issue of Jerusalem, but also

11. [2nd paragraph]. ...to facilitate the repatriation, resettlement and economic and social                    rehabilitation of the refugees and the payment of compensation, and to maintain close relations with the                   Director of the United Nations Relief for Palestine Refugees ... 

Recognizing that the Refugees required assistance until such time as 194 (III), Paragraph 11 would be carried out, the United Nations General Assembly passed a resolution, number 302(IV), on December 8, 1949 establishing the U.N. Relief and Works Agency for Palestine Refugees (UNRWA). This agency was meant to be temporary until the repatriation of refugees was effected. Therefore, it was subject to annual review. Paragraphs 5 and 20 of this resolution

5. Recognizes that, without prejudice to the provisions of paragraph 11 of General Assembly     resolution 194 (III) of 11 December 1948, continued assistance for the relief of the Palestine refugees is necessary to prevent conditions of starvation and distress among them and to further conditions of peace and stability, and that constructive measures should be undertaken at an early date with a view to the termination of international assistance for relief.

20. Directs the United Nations Relief and Works Agency for Palestine Refugees in the Near East to consult with the United Nations Conciliation Commission for Palestine in the best interests of their respective tasks, with particular reference to paragraph 11 of General Assembly resolution 194 (III) of 11 December 1948.

In summary, unlike other refugee groups, the Palestinians were singled out for special treatment by providing them with two U.N. agencies, rather than one. The U.N. Conciliation Commission was to provide legal protection for the refugees, represent their interests, and implement 194 (III). UNRWA was simply an agency to deliver assistance to the refugees until they were repatriated.

Unfortunately, the U.N. Conciliation Commission for Palestine was unable to get the cooperation of Israel in carrying out the terms of UNGA 194(III). By 1952, it was clear that the Conciliation Commission was unable to fulfill its mandate, and hence, it retreated from its office in Jerusalem to New York. This robbed the Palestinian refugees of the protective function, which included representing refugee interests in various national and international venues that the UNCCP had previously provided. As such, that protective function should have automatically gone to the United Nations High Commissioner for Refugees. But it did not solely because of a misinterpretation of Article 1D of the 1951 Refugee convention. Article 1D has two sentences.

The UNHCR bases its interpretation on the first sentence, while it is the second sentence that defines the actual legal intent, according to international refugee law professors, Susan Akram and Guy Goodwin-Gill. The Article 1D sentences in question read as follows:

This convention shall not apply to persons who are at present receiving from organs or agencies of the  United Nations other than the United Nations High Commissioner for Refugees protection or assistance.

when such protection or assistance has ceased for any reason, without the position of such persons          being definitely settled in accordance with the relevant resolutions adopted by the General Assembly of the   United Nations, these persons shall ipso facto be entitled to the benefits of this Convention.

The first sentence reads as though the protection of the UNHCR should be denied to Palestinian Refugees if they are getting protection or assistance [i.e. getting one or the other] from any other U.N. agency. The second, which is the determining legal definition for receiving protection from UNHCR says clearly that when such protection or assistance ceases [i.e., one or the other ceases], then the refugees in question are to receive UNHCR protection ipso facto.

The UNHCR in its Paragraph 7 of the UNHCR Statute provides that “the competence of the High Commissioner ... shall not extend to a person ... who continues to receive from other organs of agencies of the UN protection or assistance [i.e., it takes the interpretation of the first sentence]. The Palestinian Refugees receiving assistance from UNRWA should have come under the UNHCR protective function. They did not because UNHCR interpreted Article 1D of the 1951 Refugee Convention as not applying to those Palestinian Refugees receiving aid from UNRWA. Hence, for almost fifty years, the bulk of the Palestinian refugees, i.e., those receiving UNRWA aid have been without legal protection. The UNHCR is now restudying the interpretation of Article 1D, and the need to revise its own Statue regarding its interpretation. [Those refugees scattered throughout the world may be eligible for protection, subject to the laws of the states in which they find themselves.]

Nonetheless, the deprivation of UNHCR legal protection in no way negates the absolute legal and inalienable right of each Palestinian refugee to return to his/her home/property in Israel proper and to full compensation under UNGA 194 (III) and all of the refugee conventions and laws to which it is tied. The issue is representation. The PLO has claimed to represent the interests of all Palestinians. Some feared PLO Chairman Arafat would sign away Palestinian Right of Return in return for “statehood”. [Israel and its U.S. ally have been trying to fold Palestinian individual rights into the contrived “state” collective right.] To date he has not.

However, in any case, under refugee law principles, the interests of refugees should be separately represented in negotiations involving their long-term solutions. The representation issue for the refugees should be resolved as soon as possible, either by the UNHCR accepting its protective role or by the creation of a separate body directly authorized by the refugees to carry out their wishes. According to law professor, Susan Akram, “the United Nations has the capacity to bring an international claim against a state with a view to obtaining reparation for damage caused to its agent or to the interests of which it is the guardian. Therefore, the UNHCR as a U.N. subsidiary body has the right to represent the interests of refugees before the International Court of Justice”. The second alternative of a separate body would be more difficult to develop at this time. Further, if such a body were to be created, it would have to make claims directly against Israel. However Israel has avoided having refugee laws on its books, which could be used by Palestinian claimants. Clearly, the first alternative is better. The issue is to get the UNHCR recognize its legal responsibility to the Palestinian refugees.

Finally, it should be clear that should Chairman Arafat, wearing his PLO hat as representative of all Palestinians, agree to sign away refugee rights, the refugees would still have those individual rights to restitution and compensation. It would, however, be much more difficult to pursue those rights.

What conclusions can be drawn regarding Palestinian Collective and Individual Rights?

Palestinians are entitled by international law to their own sovereign state. This conclusion is based on relevant United Nations resolutions as well as the United Nations Declaration of Human Rights, and the vast array of humanitarian law. While the focus for statehood today is on the Israeli-occupied territories of the West Bank, East Jerusalem and Gaza, from which Israel is supposed to withdraw fully under UNSC 242, there is nothing in that resolution that precludes a settlement based on UNGA 181(II).

Palestinians Refugees have absolute individual rights to return to their homes/property and to be fully compensated. Their claims have gone wanting for lack of legal protection to which they are entitled by law. Nonetheless, their rights under international refugee conventions and laws, reaffirmed in UNGA 194 (III) are inalienable. Should UNHCR recognize its responsibility to offer Palestinians legal protection and representation, their claims could be put forward in the international arena. Efforts to have UNHCR recognize its responsibility are underway.

Sources

Susan M. Akram & Guy Goodwin-Gill, United States Department of Justice, Executive Office for Immigration Review (Board of Immigration Appeals): Brief Amicus Curiae (Palestinian Refugee Rights Under International Law), 1999.

Naseer Aruri (Editor), Palestinian Refugees and Their Right of Return, London: Pluto Press, forthcoming, Summer 2001. (See especially the chapters by Susan Akram, Salman Abu-Sitta, Jan Abu Shakrah, Atif Kubursi, Ingrid Jaradat, and Normal Finkelstein).

Badil Resource Center for Palestinian Residency & Refugee Rights has a number of special studies on Palestinian Refugee Rights which can be found on their website: www.badil.org

Walid Khalidi, “Thinking the Unthinkable,” Foreign Affairs, Volume 56, No. 4, 1978, pp. 695-713. (Spells out the two-state solution).

Palestine National Council, “Palestinian Declaration of Independence,Algiers, 15, November 1988. (reproduced in Journal of Palestine Studies, XVIII, 2 (#70), Winter 1989, pp.213-216.

Benjamin N. Schiff, Refugees unto the Third Generation: UN Aid to Palestinians, Syracuse: Syracuse University Press, 1995.

United Nations General Assembly and Security Council Resolutions noted in this Fact Sheet. (These can be found on the United Nations website).

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