International law and Palestinian indendent day

By Professor Francis Boyle, Mid-East Realities, 15 November 2000

Introduction

The very concept of international law is rather unsettled. Whereas some lawyers, such as Francis Boyle, place a great deal of stock in international law, others are more dismissive suggesting that in the world as currently organized what is said to be lawful first of tends to be derivative of those who have power and force and second when power and international law diverge it is nearly always power that triumphs, just or unjust. The case of Iraq and Kuwait, for instance, was not brought to any international court for decision -- that was done by armies. And as much as former U.S. Attorney General Ramsey Clark has held mock trials with jurists from throughout the world charging his own country with war crimes, most Americans haven't even heard of this development.

The very concept of international law is at best vague and uncertain, especially when applied to the powerful. At best human society is in the embryonic phases of establishing norms, procedures, and most of all accepted adjudicatory bodies.

At the present stage of legal development at the international level, national sovereignty remains the primarily dominant concept, with military force still usually the decisive element determining who prevails, and indeed whose concepts of international law are applicable. Furthermore, for many years now the many resolutions passed by both the U.N. General Assembly and the Security Council regarding Palestine have had little effect -- nearly everything has been decided by military force and power politics.

Professor Francis Boyle is a very energetic and committed man who has been extraordinarily active for many years on matters relating to human rights and international law. At various times he has been consulted by and served as Legal Adviser to the PLO and Palestinian groups. But Professor Boyle's commitment and industry are not necessarily matched by good political and p.r. judgements for which he has been sometimes rightly criticized, and even dismissed. And there are many as well who will not fully agree with Prof. Boyle's conception that the kind of Arafat-pursued two-state solution is as just and workable as the Professor suggests.

Even with these considerations, however, Prof. Boyle's long and sincere commitments, his passionate pursuit of international legality and human rights, and his continual determination to stand up for Palestinian Statehood long before that became a popular position, have earned him the right to have his views considered and his determination respected. What follows are comments made by Prof. Boyle today, and a year ago, on the occasion of yet another concept which is rather unsettled: Palestinian Independence Day.

Date: 11/15/2000

Dear Friends:

Despite the terrible suffering of the Palestinian People, I write to commemorate the Twelfth Anniversary of the Declaration of the Palestinian State by the Palestine National Council meeting in Tunis, and also its Proclamation in the Courtyard in front of Al Aksa Mosque on Independence Day after the close of prayers, on November 15, 1988. Notice that the Palestinian People proclaimed their own Independent State In the Name of God, the Compassionate, the Merciful, at their Holiest Site in Jerusalem, the Capital of Palestine, under the guns of the Israeli occupying army. The Creation of the Palestinian State was a direct result of the heroic struggle and sacrifices made by the Palestinian People during the first Intifada starting in December of 1987. The same will be true for the final liberation of the Palestinian State from the illegal and genocidal Israeli occupation forces.

Today the State of Palestine has de jure recognition as an Independent State by about 125 other States. The State of Palestine has de facto recognition from almost all of Europe. Indeed, the European Union has promised to accord Palestine de jure recognition as an Independent State. The State of Palestine has de facto Membership in the United Nations Organization. Palestine has the votes for formal admission to the United Nations Organization as well. The only thing keeping Palestine out of the United Nations de jure is the illegal threat of a veto by the United States Government. There will be no peace in the Middle East until the Palestinian People are able to enjoy their own Independent State of Palestine, and as a de jure Member State of the United Nations Organization.

Francis A. Boyle
Professor of International Law

Happy Palestine Independence Day!

by Francis A. Boyle*
Professor of International Law

Date:12 November 1999

The self-styled Final Status negotiations between the Palestinians and the Israelis have now began in earnest. The goal of obtaining Peace with Justice for All Peoples in the Middle East can only be achieved on the basis of a two-state solution for the Palestinian People and the Jewish People, respectively. On November 15, 1988, the independent state of Palestine was proclaimed by the Palestine National Council (PNC), meeting in Algiers, by a vote of 253 to 46, as well as in front of Al-Aksa Mosque in Jerusalem, the capital of the new state, after the close of prayers. A remarkable opportunity for peace was created by the Palestinian Declaration of Independence because therein the PNC officially endorsed this two-state solution in order to resolve the basic conflict.

This Declaration of Independence explicitly accepted the U.N. General Assembly's Partition Resolution 181(II) of 1947, which called for the creation of a Jewish state and an Arab state in the former Mandate for Palestine, together with an international trusteeship for the City of Jerusalem. The significance of the PNC's acceptance of partition in the Palestinian Declaration of Independence itself cannot be overemphasized. Prior thereto, from the perspective of the Palestinian People, the Partition Resolution had been deemed to be a criminal act that was perpetrated upon them by the United Nations. Today, the acceptance of the Partition Resolution in their actual Declaration of Independence signals a genuine desire by the Palestinian People to transcend the past 50 years of history and to reach an historic accommodation with Israel on the basis of a two-state solution. The Declaration of Independence is the foundational document for the state of Palestine. It is determinative, definitive, and irreversible.

In this regard, it should be emphasized that Israel officially accepted the U.N. Partition Resolution in its own Declaration of Independence and as a condition for its admission to membership in the United Nations Organization. The 1947 U.N. Partition Plan called for the Palestinian People to have a much larger section of historic Palestine for their state than do the 1967 boundaries contemplated by U.N. Security Council Resolutions 242 (1967) and 338 (1973). By comparison, today the Palestinian People would be prepared to accept the 1967 boundaries for the state of Palestine, which would consist essentially of the West Bank, Gaza Strip and East Jerusalem. The PNC's solemn acceptance of Resolutions 242 and 338 represented a significant concession by the Palestinian People for the benefit of the Israeli People.

Moreover, as another express condition for its admission to the United Nations Organization, the government of Israel officially endorsed and agreed to carry out U.N. General Assembly Resolution 194(III) of 1948, which determined that Palestinian refugees have a right to return to their homes, or that compensation should be paid to those who choose not to return. Furthermore, that same article 13(2) of the 1948 Universal Declaration of Human rights which Soviet Jews relied upon to justify their emigration from the former Soviet Union provides that: Everyone has the right...to return to his country. That absolute right of return clearly applies to Palestinian refugees living in their diaspora who want to return to their homes in Israel and Palestine. The state of Israel owes a prior legal obligation to resettle Palestinian refugees who want to return home before it undertakes the resettlement of Jews from around the world.

Quite obviously, a remarkable opportunity for peace was created by the Palestinian Declaration of Independence. What is needed now from the Clinton administration is the same type of dynamic leadership and will for peace that was demonstrated by the Carter administration over two decades ago. The governments of Israel and the United States must seize this historic moment. Otherwise, history will most probably not give any of us a second chance for obtaining Peace with Justice for All Peoples in the Middle East.