Self Determination
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This article has been written by Harshita Jaiman, B.A.-LL.B.(I.P.R. Hons.) , National Law University, Jodhpur. 

Introduction

Media reports from all over the world are full of demand for the ‘right of self-determination’ ever since the Arab Spring. In recent times, this demand has been asserted inter alia by Kurds, Palestinians, Tibetans, Kashmiris, people of Hong Kong and Puerto Ricans.

While this right of self-determination is available to every such community which has a unique culture, it can also be used as a tool to suppress minority or disrupt international peace.

This project attempts to study:

  • The principle of self determination in the context of Israel’s state-law passed in July, 2018 in the background of the Israel- Palestinian conflict;
  • Various aspects of religion and nationality covered by the abovementioned law and its implications;
  • The debate and controversy surrounding this law;

And thereafter analyse the effect of the law on the minority rights and its impact on the interstate relations between Israel and Palestine.

Self Determination

The right of self determination, simply put, is the right of a community to have its characteristics reflected in the governance and institution which regulates it.[1]

Meaning

It is this assertion of rights over one’s territory and self governance which constitutes self determination. It is the right of people under foreign, colonial or alien domination to self governance,[2] whether through formation of a new state, association in a federal state, or autonomy or assimilation in a unitary (non-federal) state.

This idea of collective rights or rights of a group became prominent in connection with the principle of self determination. Self determination is articulated in various ways- as a political principle, legal principle and legal right.

Sources

Apart from the General Resolution passed by the United Nations, the right of self determination has been included in the International Covenant on Civil and Political Rights, 1966 and International Covenant on Economic, Social and Cultural Rights, 1966.

Article 1, International Covenant on Civil and Political Rights: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development.

Article 1(1), International Covenant on Economic, Social and Cultural Rights: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

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History

This expression first came into use in the mid-17th century by liberal and national radical nationalists and increasingly by the labour movement. The evidence of the first mention of a general right of self determination of people appears in 1870 in the work of Eduard Zeller, a historian of philosophy.[3]

The origin of expressions ‘self determination’, ‘right of self determination’ and ‘right of self determination of people’ and all other related phrases dates back to shortly before the beginning of labour movement, to the primarily bourgeois nationalism of the mid-nineteenth century.[4]

This concept, however, developed rapidly after the decade following the First World War when decolonisation started. The war couldn’t have been fought and won by the Allies had it not been for the colonies. Colonies were a source of raw material, cheap labour and also acted as a market for the manufactured products made in the imperialist countries. During war as well, the colonies were responsible for producing siege-specific goods, arms and ammunitions etc. which couldn’t have been produced in the European industries sans the resources and labour provided by the colonies.

When it dawned upon the colonies that they were being exploited and drained of their wealth by the colonizers and that their services formed the backbone of the imperialists, they sought to use world war as an opportunity to assert their rights over their territory.

Declaration of the United Nations General Assembly

 This shift from ‘principle’ to ‘right’ first appeared in the Declaration on the Granting of Independence to Colonial Countries and people.[5] The declaration reads as follows:

“The General Assembly,

…convinced that all peoples have an inalienable right to complete freedom, the exercise of their sovereignty and the integrity of their national territory,

Solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations;

And to this end declares that:

  1. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. “[6]

Self determination can acquire different meanings in different situations. There is no universally accepted definition of self determination. Hence, in a general manner, it can be defined as the right of a community which has a distinct character to have this character reflected in the institutions and establishment which govern it.[7]

Criteria for self determination

The right to self determination is said to be exercised by a group of people in the following circumstances:

  1. When they have established a sovereign and independent state; or,
  2. When they have freely associated with another state; or,
  3. When they have integrated with another state after having freely expressed their will to do so.

The obligation of the International community

According to Hohfeldian analysis of rights, where there is a right, there is a corresponding duty vested in another person/ body. This applies in case of the right of self determination as well. It creates an obligation on the states to respect and promote this right and refrain from taking any forcible action which may deprive people of such a right. The obligation flows from the principle of self determination itself and exists on the international community as a whole, i.e., it has an erga omnes status.[8]

Application

The right to self determination has been exercised by many ethnic/ religious minorities across the globe. The list includes Catalonia, Hong Kong, Kurdistan, South Africa, Sri Lanka, United States, etc.

History Of The Israel-Palestinian Conflict

The Palestinian-Israel conflict began in the early 1900s when Zionism started in Europe as a movement of European Jews to escape persecution and establish their own state in their ancestral homeland. During that time, this region was a part of the Ottoman Empire and a British mandate too.

Sykes- PICTO Agreement

As the Jews started pouring in, the Arabs in the region became agitated and a struggle regarding borders ensued. This increased tension in the region regarding borders. Thus, in May 1916, the Sykes-Picot Agreement divided the land into two regions- Iraq, Transjordan and Palestine under British control and Syria and Lebanon under French control. Consequently, the Emir of Mecca launched the Great Arab Revolt against the Ottoman Empire and gained control over Jordan, Arabian Peninsula and southern Syria. Christian and Jewish enclaves were carved out in Lebanon and Palestine. This was followed by the Balfour declaration according to which the British government extended its support for a Jewish homeland.

Nazi Party comes to Power

Things escalated when Hitler gained power in Germany. There was a mass exodus of Jews to Palestine during Holocaust. This flared up Arab- Jewish conflicts and there were attacks on the British troops and infrastructure also increased. This was followed by the Second World War after which the British government referred the question of Palestine to the U.N.

UN Declaration

The U.N., in 1947, directed the partition of Palestine into separate Palestinian state and Jewish state. According to this mandate, the western Palestine which was to be a Jewish territory was to consist of Negev Desert, coastal plains between Tel Aviv and Haifa and parts of northern Galilee. The Arabian territory was to consist of West Bank, Gaza strip, Jaffa and the Arab sectors of Galilee. Jerusalem was proposed to become and international enclave under the U.N. Trusteeship. This arrangement was not taken well by the Arabs who believed that Palestine was all theirs and Jews were foreigners trying to invade on their land. Thus, they wanted to drive them away.

Deir Yassin Attack

The actual conflict between Israel and Palestine was marked by Deir Yassin attack. Jewish forces attacked several villages of Palestine, one being Deir Yassin. It was an attempt to regain possession over Jerusalem and ensuring the safety of their own settlements.

Israel’s Declaration of Independence

Soon after, in May 1948, Israel declared its independence and extended a hand of peace to all neighbouring Arab states. This declaration was immediately followed by the First Arab-Israeli War that very evening where armies from Lebanon, Syria, Iraq and Egypt attacked Israel. Arab-Palestinians in this region fled and were ultimately forced to live as refugees as the Arab nations refused to absorb them.

Six days war & Yom Kippur War

Though the Arabs signed an armistice agreement with Israel, the tension between them continued which was seen in the form of the Second Arab-Israel Conflict or the Suez crisis, the Six Days War and the Yom Kippur War (1973). Meanwhile, many Arab militant groups emerged in this region such as the Palestine Liberation Organisation (PLO) and Hamas.

Failure of Camp David II

Due to the growing tension, Camp David Accords signed between Egypt and Israel in 1978 proved futile and another attempt of resolution of conflict failed in 2009. Suicide bomber attacks on Israel continued for a very long time and Israel assassinated Palestinian leaders in retaliation.

Israel  Attempts To Build Wall

In the more recent developments, the wall built by Israel in the West Banks to enhance its security was held to be against the norms of the international law by the International Court of Justice in 2004. Meanwhile, as Hamas seized political power in Palestine, the conflict worsened as did the attacks on Israel.

Palestine Gets International Recognition

In 2012, the United Nations accepted Palestine as a non-member observer state. Soon after, it became clear from the policies of the Israeli government that they were not in favour of ‘Two-Nation Theory’. This reflected in Israeli Prime Minister Benjamin Netanyahu’s speech on the eve of elections. The Vatican also recognised Palestine as a state in 2015. Another surprising turn of events took place when U.S., the ardent supporter of Palestinian cause, committed $38 billion over ten years to military assistance for Israel. This was followed by U.S.’ recognizing Jerusalem as Israel’s capital and opening its embassy there.[9]

Israel’s Nation-State Law

The most recent development in this issue took place on July 19, 2018 when the Israeli parliament passed a law declaring Israel a Jewish state and Jerusalem as its undivided capital.

This paper attempts to understand the implications of this step on Israel, its relationship with the refugees and Palestine and predict the effect it will have on rest of the world. 

State Law: Form of Apartheid

The Law

The Israeli parliament, Knesset, passed a law in July this year which declares Israel as a Jewish nation-state. Introduced amongst heavy opposition, this law was approved by the Knesset members by voting in its second and third plenary readings by a majority of 62:55, with two abstentions.

The law covers incorporates various issues, inter alia, the basic principles, state capital, state symbols, language, provision for immigrants and refugees, concern for Jewish community and their settlement, immutability of law. Some of these provisions are contentious and have given rise to mass criticism and debates.

Basic Principles

According to the basic principles enshrined in the law, Israel has been stated to be the ‘historical homeland of the Jewish people’. Further, it declares Israel to be the ‘national home of the Jewish people which fulfils its natural, cultural, religious and historical right to self determination’ and also that this right to exercise national self-determination in Israel is ‘unique to Jewish people’.

State Capital

Another contentious issue is one regarding capital of the state. The law states that undivided Jerusalem, ‘complete and united’ is the capital of Israel.

Language

Yet another controversy has been created by the clause on language. The law gives the status of ‘the state language’ to Hebrew. Although it states that the special status of Arabic language will not be revoked, it directs regulating the use of Arabic in state institutions by operation of law.

Connection to Jewish People

Another clause which may have a far reaching impact is the one which reads as ‘Connection to the Jewish people’. According to this clause, the state will not only strive to ensure the safety of the Jewish persons in captivity or exile due to their religion but also act to preserve the cultural, historical and religious heritage of the Jewish Diaspora.

Immutability of Law

The smallest but the most authoritative clause is one which provides for immutability of the law. In the exact words,

“The Basic Law shall not be amended, unless by another Basic Law passed by a majority of Knesset members.”[10]

This clause alone ensures the fact that all the tenets laid down by the law, however controversial, is a part of the ‘Basic Law’ because of which amending it will prove to be a Herculean task. This law not only makes Israel a Jewish state, but also becomes one of those laws which will, just like the Constitution, guide the legal system and government policies alike.

Criticism

Right from its very proposal in 2011, the law has attracted criticism from across the globe. It has been subjected to criticism not only by the Arab settlers in Israel but also by people affiliated with the Israeli right like the members of Likud Party and the Jewish Diaspora.[11] Scholars and politicians alike are raising their concern about this issue.

It has been argued that the law is contrary to the principles of democracy which form the base of the state’s politics and that it creates confusion with regard to its status as a Jewish- democratic state.

Even the president of Israel raised his concern in an open letter; Reuven Rivlin said that the legislation, being biased towards Jews, could harm the Jewish people worldwide (including the Jews in Israel) and could also be used by enemy states as a weapon against Israel.[12]

In a statement issued in an interview with Haaretz, the Tourism Minister of Israel, Mr. Yariv Levin, who supervised the passage of law, said that the Act could be used as a tool to prevent family reunification of Israeli Jews and Palestinians. This would help not only in security purpose but also help maintain the character of the country as the homeland of Jews. This would not undermine the Law of Return which grants citizenship to immigrating Jewish families. [13]

This law has also met opposition from the Druze community of Israel. This community forms a major chunk of the Israeli army and unlike the other Arab Israeli citizens are subject to the law. They claimed that they have been treated unfairly for years and have been given the status of second class citizens.[14] However, the political leaders stated that though they were unhappy about their status in the country, it was not a result of the nation-state law. Even they believe that Israel is the nation of Jews and it needs to be codified as law.

The most significant criticism is one which has come from the Jewish groups. The American Jewish Community stated that the nation-state law has put at risk the commitment of Israel’s founders to build a Jewish-democratic country.[15] 

Defence

Several attempts have been made by members of the Likud party which is currently in power in Israel and several other bodies to defend the nation-state law.

Israeli researchers from the Institute for Zionist Strategies, a research institute, republished one of their papers dating back to July, 2009 in which they assert their support for the proposal of such a law.[16]

These supporters rely on the mandate of the League of Nations as per which Israel was to be a Jewish homeland; on the UN Charter which continued this mandate; on the UN Resolution of 1947 calling for the establishment of Jewish and Arab states and on Israel’s declaration of independence in 1947. They claim that the new state was defined by the members of the National Council as the ‘National Home’ of the Jewish people. The declaration of independence also laid the foundations to ensure that it will be a Jewish state with a democratic government. The new state-law reiterates the same objective put forth at that time.  

Another member of the academia, Professor Eugene Kontorovich, in his article, went on to compare Israel’s nation state draft to that of the states of the European Union. He concludes that there is nothing racist or unusual about having the religious or national character reflected in basic laws. Quoting the example of seven nations of the EU whose constitution provides for the state being the national home and locus of self-determination for the country’s major ethnic group, he sees no reason for the rising concern about this law.[17]

Analysis

“The tragedy of the people of Palestine is that their country was ‘given’ by a foreign power to another people for the creation of a new state.”

— Bertrand Russell, 1970

This statement sums up the views of the Arab nations and rest of the world regarding the formation of a Jewish state. The newly introduced state-law of Israel further strengthens their views on the matter. The Arabs in the region assert that Jews are ‘another people’ and don’t belong to the region of Palestine. However, the fact that Jews were ousted from their ‘promised land’ by foreign rulers (who eventually settled there and called it their home) cannot be negated.

By the Balfour Declaration, the land of Palestine was promised to Jews in general, and not the Jewish settlers in that region. While the Jews migrated from across the globe to the newly formed territory, the Arab settlers in that region were deprived of their right of self determination; their land was given away to another religious community without any consultation with their representatives. This was an incident of suppression of the right to self determination.

Another such incidence of breach of this right took place recently when the nation-state law was passed by Israel, the only difference being that this was done at the intra-state level.

Permanence of Law

The law grants the right to self determination exclusively to the Jewish majority in the state of Israel, thereby depriving the minority population of Israeli Arabs of this right. The fact that this law is a part of the set of basic laws is very alarming. The basic laws in Israel are similar to the Indian concept of basic structure. These are considered to be a fundamental part of the national legal system, a guiding force, just like the Constitution of the country. Since these are so rudimentary and vital for the legal system to function properly, they cannot be repealed easily. The government needs the assent of the majority in the Knesset to repeal such laws and replace them with other laws.

Effect on Minority Rights

After having established the likelihood of permanency of the law, it is important to note the impact of this law on Arabic minority.

In any legal system, one can claim a right only if it can be traced back to the grund norm or the Constitution of that country. In cases where such a right cannot be attributed to the Constitution, one tries to trace it to the principles of natural justice. However, principles of natural justice can be successfully invoked only if the law doesn’t ban them exclusively.

It is evident from the text of the law that non-Jewish population will not have a say in choosing the principles which govern them. Since the majority can now ‘lawfully’ carry out any act of self determination, it is very likely that such act may be used to deprive the minority of their other rights in the near future. Further, since such an act will be backed by the law, there will not be any scope to invoke natural justice. Thus, the non-Jewish communities will even lose their right to protest against the laws applying to them.

This will be an explicit breach of minority rights done using the instrument of ‘law’.

Status of Jerusalem

The law declares ‘undivided’ Jerusalem as the capital of the state of Israel. This is another bone of contention between Israel and Palestine.

The status of Jerusalem is disputed. While both the states claim Jerusalem as their capital city, according to the United Nations Partition Plan for Palestine[18], Jerusalem was to be established as a corpus separatum or a separate body having an international status. While this plan could never materialise, the international community have taken up different stands with respect to this issue.

According to a statement issued by the Russian Ministry of Foreign Affairs, Russia recognises East Jerusalem as the capital of Palestine and West Jerusalem as the capital of Israel.[19]The United States of America under President Donald Trump, has recognised Jerusalem as the capital of Israel.[20]Soon after this the U.N. General Assembly voted to denounce this recognition of Jerusalem by U.S.A. as null and void and it was declared so by an overwhelming majority of 128-9.[21]

Conclusion

“Self determination is loaded with dynamite.”

Rightly observed by the U.S. Secretary of State Stanton, the principle of self determination needs practical guidelines for it to be used in a more responsible way. However, it is true that self determination is the need of the hour as the modern world conflicts are more about intra-state issue; Syrian crisis, Israel- Palestinian issue are some examples.

To resolve these issues, there needs to be a principle which limits the application of the principle of self determination. More focus should be given to intra-state autonomy as a form of limited self determination. It is an alternative self-determination arrangement, short of succession and seems to be the most feasible alternative.[22]

Further, there is an ongoing debate about various aspects of the right of self determination. The air over the meaning and significance of the principle of self determination hasn’t been cleared yet. Debates are still going on among members of academia on various issues like: What is self determination? What are the requirements which need to be fulfilled to achieve this right? Is it merely a political principle or can it be used as a tool for establishing law? How and to whom does it apply?

References

Articles

  1. “Druze IDF officers protest against Nationality Law”, Ynetnews……………………………………………….. 11
  2. “Israel passes Jewish nation law branded ‘racist’ by critiques”, The Independent……………………… 11
  3. “Israel passes Jewish nation law; branded ‘racist’ by critics”, The Independent…………………………. 12
  4. “Israeli Minister Explains Why He Led the Effort to Pass the Nation-State Law”, Haaretz……….. 11
  5. AP, UN denounces US recognition of Jerusalem as Israeli capital, 22 December, 2017……………… 16
  6. Dubi Helman and Adi Arbel, “The State of Israel as the National Home of the Jewish People”, The Institute for Zionist Strategies……………………………………………………………………………………………………………………………………… 12
  7. Eugene Kontorovich, “The legitimacy of Israel’s nation-state bill (I): Comparative Constitutionalism”, Kohelet Forum, December, 2014…………………………………………………………………………………………………………………………… 13
  8. Harriet Sherwood, What does U.S. recognition of Jerusalem as Israel’s capital mean?, 6 December, 2017. 16
  9. Paul Goldman, Lawahez Jabari and F. Brinley Bruton, “Israel’s nation-sate law prompts criticism around the world, including from U.S. Jewish groups”, NBC News………………………………………………………………………… 11
  10. Raphael Ahren, “In curious first, Russia recognizes Weat Jerusalem as Israel’s capital”, 6 April, 2017. 16

Decisions of the International Court of Justice

  1. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I. C. J. Reports 2004, p. 136……………………………………………………………………………………………………………………… 5

Other Authorities

  1. Full text of Basic Law: Israel as the Nation State of the Jewish People (PDF), The Knesset: Laws. State of Israel 10
  2. https://israelipalestinian.procon.org/view.timeline.php?timelineID=000031………………………………… 8

Treatises

  1. Allen Buchnan, Justice, Legitimacy, and Self-Determination, Oxford University Press at p. 342. 17
  2. James Crawford, Brownlie’s Principles of Public International Law, Oxford University Press, 8th edition at p. 646………………………………………………………………………………………………………………………………………………………… 4
  3. James Crawford, Brownlie’s Principles of Public International Law, Oxford University Press, 8th edition at p. 647………………………………………………………………………………………………………………………………………………………… 2
  4. Jörg Fisch, A History of the Self-Determination of Peoples: The Domestication of an Illusion, Cambridge University Press, 1st edition, 2015 at p.118……………………………………………………………………………………………………… 3

United Nations General Assembly Resolutions

  1. Declaration on the Granting of Independence to Colonial Countries and Peoples, Adopted by General Assembly resolution 1514 (XV) of 14 December 1960………………………………………………………………………………….. 4
  2. GA Res 1514(XV), 14 December, 1960…………………………………………………………………………………………. 2
  3. Resolution 181, UNGA………………………………………………………………………………………………………………… 16

Endnotes

[1] James Crawford,  Brownlie’s Principles of Public International Law, Oxford University Press, 8th edition at p. 647.

[2] GA Res 1514(XV), 14 December, 1960.

[3] Jörg Fisch, A History of the Self-Determination of Peoples: The Domestication of an Illusion, Cambridge University Press, 1st edition, 2015 at p.118.

[4] Ibid

[5] James Crawford,  Brownlie’s Principles of Public International Law, Oxford University Press, 8th edition at p. 646.

[6] Declaration on the Granting of Independence to Colonial Countries and Peoples, Adopted by General Assembly resolution 1514 (XV) of 14 December 1960.

[7] Ibid.

[8] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I. C. J. Reports 2004, p. 136

[9] See here:  https://israelipalestinian.procon.org/view.timeline.php?timelineID=000031

[10] Full text of Basic Law: Israel as the Nation State of the Jewish People (PDF), The Knesset: Laws. State of Israel.

See here: https://knesset.gov.il/laws/special/eng/BasicLawNationState.pdf

[11] Paul Goldman, Lawahez Jabari and F. Brinley Bruton, “Israel’s nation-sate law prompts criticism around the world, including from U.S. Jewish groups”, NBC News.

See here: https://www.nbcnews.com/news/world/israel-nation-state-law-prompts-criticism-around-world-n893036

[12] “Israel passes Jewish nation law branded ‘racist’ by critiques”, The Independent. 

See here: https://www.independent.co.uk/news/world/middle-east/israel-jewish-nation-state-law-passed-arabs-segregation-protests-benjamin-netanyahu-a8454196.html

[13] “Israeli Minister Explains Why He Led the Effort to Pass the Nation-State Law”, Haaretz.

See here: https://www.haaretz.com/israel-news/.premium-israeli-minister-explains-why-he-fought-to-pass-nation-state-law-1.6358737

[14]“Druze IDF officers protest against Nationality Law”, Ynetnews.

See here: https://www.ynetnews.com/articles/0,7340,L-5316576,00.html

[15] “Israel passes Jewish nation law; branded ‘racist’ by critics”, The Independent.

See here: https://www.independent.co.uk/news/world/middle-east/israel-jewish-nation-state-law-passed-arabs-segregation-protests-benjamin-netanyahu-a8454196.html

[16] Dubi Helman and Adi Arbel, “The State of Israel as the National Home of the Jewish People”, The Institute for Zionist Strategies. 

See here: http://izs.org.il/2015/12/jewish-national-home/

[17] Eugene Kontorovich, The legitimacy of Israel’s nation-state bill (I): Comparative Constitutionalism, Kohelet Forum, December, 2014.

See here: https://en.kohelet.org.il/publication/the-legitimacy-of-israels-nation-state-bill-i-comparative-constitutionalism

[18] Resolution 181, UNGA.

[19] Raphael Ahren, “In curious first, Russia recognizes Weat Jerusalem as Israel’s capital”, 6 April, 2017.

See here: https://www.timesofisrael.com/in-historic-first-russia-recognizes-west-jerusalem-as-israels-capital/

[20] Harriet Sherwood, “What does U.S. recognition of Jerusalem as Israel’s capital mean?”, 6 December, 2017.

See here: https://www.theguardian.com/world/2017/dec/06/us-recognition-of-jerusalem-as-israel-capital-what-it-means

[21] AP, UN denounces US recognition of Jerusalem as Israeli capital, 22 December, 2017.

See here: https://www.thehindu.com/news/international/un-denounces-us-recognition-of-jerusalem-as-israeli-capital/article22216682.ece

[22] Allen Buchnan, Justice, Legitimacy, and Self-Determination, Oxford University Press at p. 342.


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