9
The Right to Self-Determination and the Prolonged Occupation of
Palestinian Territory
Matthew Saul*
1. Introduction
The law of occupation limits the scope for changes to an occupied territory, its
demography, and its infrastructure. In so doing, the law of occupation protects the occupied
people’s right to self-determination. However, the law of occupation expects temporary
occupations. In prolonged occupations, extending over many years, it may not be viable to
conserve the circumstances of the occupied territory in the way envisaged by the law of
occupation. One way to respond to this potential inadequacy is to give more attention to the
function of the right to self-determination as a fundamental principle of international law.1
The right to self-determination may inform interpretations of the law of occupation.
Scholars refer to the right to self-determination in order to support arguments for modifying
components of the law of occupation concerning participation in decision-making processes2;
change of infrastructure3; usufruct4; and the end of occupation.5 The right to self-determination
is thus one element among others in the discussion about how to interpret components of the
law of occupation.6
* Associate Professor, Inland Norway University of Applied Sciences, Norway. Guest researcher at PluriCourts Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, Faculty of Law, University of
Oslo, Norway. This book chapter is approximately as appears in G. Zyberi (ed), Protecting Community Interests
through International Law (Intersentia, 2021) (the book is open access: https://intersentia.com/en/protectingcommunity-interests-through-international-law.html). This chapter draws on an expert opinion prepared by the
author for the Diakonia International Humanitarian Law Resource Centre in Jerusalem (July 2019). Thanks to Geir
Ulfstein, Gentian Zyberi, and the anonymous reviewer for very helpful comments on earlier drafts.
1
For a general account of the role of fundamental principles in the creation and practice of international law, see
Roman A Kolodkin, ‘Fragmentation of International Law? A View from Russia’ in Roland St John Macdonald
and Douglas M Johnston, Towards World Constitutionalism: Issues in the Legal Ordering of the World
Community, (Martinus Nijhoff 2005) 227-228.
2
Eyal Benvenisti, The International Law of Occupation (2nd edn, Oxford University Press 2012) 79-80; Eyal
Benvenisti, The International Law of Occupation (Princeton University Press 1993) 171, 215.
3
Alain Pellet, ‘The Destruction of Troy Will not Take Place’ in Emma Playfair (ed), International Law and the
Administration of Occupied Territories: Two Decades of Israeli Occupation of the West Bank and Gaza Strip
(Clarendon Press 1992) 169.
4
Iain Scobbie, ‘Natural Resources and Belligerent Occupation: Mutation Through Permanent Sovereignty’ in
Stephen Bowen (ed), Human Rights, Self-Determination and Political Change in the Occupied Palestinian
Territories (Martinus Nijhoff 1997) 221, 249.
5
Iain Scobbie, ‘An Intimate Disengagement: Israel’s Withdrawal from Gaza, the Law of Occupation and of SelfDetermination’ (2004) 11(1) Yearbook of Islamic and Middle Eastern Law 3, 21.
6
Such factors include evidence from the occupier of a concern for the best interests of the local population, see
scholars cited by Marco Longobardo, ‘The Palestinian Right to Exploit the Dead Sea Coastline for Tourism’ (2015)
58 German Yearbook of International Law 317, section III A at footnote 41.
1
The right to self-determination may also serve as a standalone basis for assessing the
conduct of the occupier. The International Court of Justice (ICJ) took this approach in its 2004
advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory.7 The ICJ provided only a brief account of the meaning and reach of the
right to self-determination.8 This is understandable in light of the question asked by the UN’s
General Assembly, but it gives little guidance on whether it is advisable to focus on using the
right to self-determination as an aid in interpreting the law of occupation or elaborating its
function as a standalone legal framework.
How should we understand the function of the right to self-determination in situations
of prolonged occupation? To shed light on this question, the first part of this chapter examines
doctrine on the meaning of the right in international law and its relation to the law of occupation.
It explains how the right to self-determination may serve as part of the law of occupation’s
interpretative framework, but also as a standalone component of the international legal
framework for prolonged occupations. The second part of this chapter examines the prolonged
occupation of Palestinian territory from the perspective of the right to self-determination.
Specific attention is given to the Oslo Accords, circumstances in Gaza, population movement,
and natural resource usage. The analysis brings more fully into focus the distinct nature of the
two functions of the right to self-determination and illustrates the importance of keeping them
separate. The third part of the chapter examines the legal consequences that follow from
denying the right to self-determination. The focus is on the right’s importance for the
international community of states and the obligations this generates.
The chapter argues that when circumstances add complexity and uncertainty to the
operation of a specialised legal regime, it is important to recognise that fundamental principles
of international law continue to operate as a baseline securing protection of international
community interests. The right to self-determination as a precept of non-domination provides
legal protection in situations of prolonged occupation regardless of the haze that can form
around the meaning and application of the law of occupation. The right to self-determination
precludes practices that will pre-empt the choices available to the people at the end of an
occupation with regard to the territory’s organization, utilization, and status. Attempts to make
sense of the law of occupation in situations of prolonged occupation should not come at the
expense of attending to the meaning of, and legal consequences that result from, denial of the
right to self-determination.
2. The Meaning of the Right to Self-Determination
One of the purposes of the United Nations is to pursue the development of friendly relations
among nations ‘based on respect for the principle of equal rights and self-determination of
7
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion)
[2004] ICJ Rep 136; see also Jean-François Gareau, ‘Shouting at the Wall: Self-Determination and the Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory’ (2005) 18 Leiden Journal of
International Law 489.
8
Israeli Wall case (n 7) [88], [115 -122] and [159]; See also the Separate Opinion of Judge Higgins [29–30].
2
peoples’.9 The development of the legal right to self-determination occurred subsequent to the
signing of the UN Charter, as part of the movement for decolonisation during the 1960s.10 Thus
the core meaning of the legal right to self-determination centres on the idea of freedom from
foreign subjugation.11
The legal status of the right to self-determination is grounded in several UN General
Assembly Resolutions,12 and its inclusion as common Article 1 in the two International
Covenants of Human Rights.13 These instruments do not limit the legal right to selfdetermination to the colonial context.14 Still, the broad formulation of ‘all peoples have the right
freely to determine, without external interference, their political status and to pursue their
economic, social and cultural development’, which is repeated in almost all the relevant UN
documents, means that the meaning of the right has been and continues to be a source of
contestation.15 To clarify the meaning of the legal right to self-determination, let us consider
how it relates to self-determination as a political principle.
As a political principle, it has at least three key dimensions. One is that the people of a
state as a whole should be free, within the boundaries of the state, to determine, without outside
interference, their social, political, economic, and cultural infrastructure.16 Another is that each
ethnically or culturally distinct group should be free to choose how it constitutes itself.17 A third
is that a state should be constituted along democratic lines to enable the people—including
9
Charter of the United Nations (opened for signature 24 June 1945, entered into force 24 October 1945) 1 UNTS
XVI (UN Charter) art 1(2); see Rosalyn Higgins, Problems and Process: International Law and How We Use It
(Clarendon Press 1994) 111.
10
See Marc Weller, Escaping the Self-Determination Trap (Brill | Nijhoff 2009) 35; Jean Salmon, ‘Internal Aspects
of the Right to Self-Determination: Towards a Democratic Legitimacy Principle?’ in Christian Tomuschat (ed),
Modern Law of Self- Determination (Martinus Nijhoff 1993) 253, 254–255.
11
UN General Assembly, ‘Resolution 1514 (XV): Declaration on the Granting of Independence to Colonial
Countries and Peoples’ (14 December 1960) UN Doc A/RES/1514(XV). The Declaration specifies that ‘the
subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental rights,
[and] is contrary to the Charter of the United Nations’. It also provides that ‘all peoples have the right to selfdetermination’ (numeral 1) and that ‘by virtue of their right they freely determine their political status and freely
pursue their economic, social and cultural development’ (numeral 2). This is the basis for a people subject to
colonial rule to be given the choice of how they wish to be constituted: independence, integration, or association,
which is specified in GA Res. 1541; see Legal Consequences for States of the Continued Presence of South Africa
in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion)
[1971] ICJ Rep 56 paras 52–53.
12
UNGA (n 11); UNGA, ‘Resolution 1541 (XV) Principles Which Should Guide Members in Determining
Whether or Not an Obligation to Transmit the Information Called for Under Article 73 e of the Carter’ (15
December 1960) UN Doc A/RES/1541(XV); UNGA, ‘Resolution 2625 (XXV): Declaration on Principles of
International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter
of the United Nations’ (24 October 1970) UN Doc A/RES/2625(XXV).
13
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR); International Covenant on Economic, Social and Cultural Rights (adopted 16
December 1966, entered into force 3 January 1976) UNTS 93 (ICESCR).
14
See Gareau (n 7) 500.
15
Weller (n 10) 23; see also Deborah Z Cass, ‘Re-Thinking Self-Determination: A Critical Analysis of Current
International Law Theories’ (1992) 18(1) Syracuse Journal of International and Comparative Law 21, 22–23.
16
Jeremy Waldron, ‘Two Conceptions of Self-Determination’ in Samantha Besson and John Tasioulas (eds), The
Philosophy of International Law (OUP 2010) 397, 406.
17
ibid 398.
3
distinct groups—to participate in the state’s social, political, economic, and cultural systems.18
Attempts have been made, with varying levels of success, to identify each of these dimensions
within the international legal concept of self-determination.
The most successful of the political components, in terms of the acceptance by states of
its international legal status, has been the first. Not only is it politically important, but it is also
an international legal requirement that the population of a state as a whole be free to ‘determine,
without external interference, their political status and to pursue their economic, social and
cultural development’.19 The core accepted meaning of the right to self-determination overlaps
with the right of a sovereign state to ‘freely choose and develop its political, social, economic
and cultural systems’.20 This overlap supports the idea of popular sovereignty.21
Advocates of popular sovereignty posit that sovereignty is now better seen as the
consummation of the self-determination of people, rather than something that is worth
protecting for its own sake. Yet in spite of a long history of governments subscribing to the
concept of popular sovereignty,22 it has yet to be fully reflected in international law, which
continues to separate the rights of the state from the rights of the people. 23 Accordingly, it is
possible to view the right to self-determination as generating an additional prohibition on
interference in the internal affairs of a state.24
The question to be asked when determining whether external involvement in a territory
is consistent with the right to self-determination is this: does the external involvement prevent
the people in question from freely determining their political status and pursuing their
economic, social, and cultural development? To identify the threshold at which the engagement
of a third state on a state’s territory constitutes a breach of the right to self-determination
requires a factual assessment, specific to the case in point. It is clear, though, that an imposed
See Michla Pomerance, ‘The United States and Self-Determination: Perspectives on the Wilsonian Conception’
(1976) 70(1) The American Journal of International Law 1, 17 and 20; Antonio Cassese, Self-Determination of
Peoples: A Legal Reappraisal (Cambridge University Press 1995) 19; Thomas D Musgrave, Self-Determination
and National Minorities (Clarendon Press 1997) 22–24; see also Weller (n 10) 23.
19
UNGA UN Doc A/RES/2625(XXV) (n 12); common article 1 (2) of the ICCPR and ICESCR; see also UN
Human Rights Committee (HRC), ‘General Comment No. 12: Article 1 (Right to self-determination)’ (13 April
1984) para 6; Higgins (n 9) 104; Cassese (n 18) 59; Rein Müllerson. International Law, Rights and Politics:
Developments in Eastern Europe and the CIS (Routledge 1994) 90–91.
20
UNGA UN Doc A/RES/2625(XXV) (n 12).
21
See Brad R Roth, ‘The Enduring Significance of State Sovereignty’ (2004) 56 Florida Law Review 1017, 1042;
Christian Tomuschat, ‘International Law: Ensuring the Survival of Mankind on the Eve of a New Century’ (1999)
281 Recueil des Cours de l’Académie de Droit International 9, 165; Müllerson (n 19); Allan Rosas, ‘Internal SelfDetermination’ in Christian Tomuschat (ed), Modern Law of Self-Determination (Martinus Nijhoff 1993) 250–
251.
22
Brad R Roth, ‘Popular Sovereignty: The Elusive Norm’ (1997) 91 Proceedings of the American Society of
International Law Annual Meeting 363.
23
Maziar Jamnejad and Michael C Wood, ‘The Principle of Non-Intervention’ (2009) 22(2) Leiden Journal of
International Law 345, 369; see also Cassese (n 18) 55; Benedetto Conforti, ‘The Principle of Non-Intervention’
in Mohammed Bedjaoui (ed), International Law: Achievements and Prospects (Martinus Nijhoff 1991) 467.
24
Wouter G Werner, ‘Self-Determination and Civil War’ (2001) 6(2) Journal of Conflict and Security Law 171;
Brad R Roth, Sovereign Equality and Moral Disagreement: Premises of a Pluralist International Legal Order
(OUP 2011) 81.
18
4
governance arrangement is such a breach,25 as this hinders enjoyment of all of the elements
covered in the standard definition of the right. It also triggers application of the law of
occupation. The circumstances of occupation change how we think about the right to selfdetermination. They put the focus on ending the occupation, but also on preserving the occupied
territory, its demography, and its infrastructure, so that it is possible for self-determination to
eventually resume.
3. The Law of Occupation and the Right to Self-Determination
The law of occupation is a regulatory framework that applies in warfare if a state comes into
uninvited effective control of the territory of a third state.26 Its content has been informed by
rationales such as servicing the humanitarian needs of the people and preserving the occupied
state’s sovereignty.27 This section explains how the law of occupation is also a means of
protecting the occupied population’s right to self-determination.
The primary sources of treaty law regulating situations of occupation are the
Regulations Annexed to the Hague Convention IV 1907 (Hague law/Hague Regulations), 28 in
particular Articles 42–56; and Geneva Convention No. IV 1949 (Geneva law/GC IV),29 in
particular Articles 27–34 and 47–78. As the ‘Hague law’ was created at a time when there was
no general prohibition on the use of force30 or a legal right of all peoples to self-determination,31
meaning that title to territory could still be acquired through the use of force, one might doubt
its contemporary relevance as a legal framework for safeguarding sovereign rights. There was,
however, a rule that during warfare, when territory of a state came under the authority of an
army whose government did not have title to that territory, its annexation was not permitted
until the cessation of hostilities.32 This created a transitional phase in which a legal framework
for the preservation of sovereign rights was deemed necessary to prevent further deterioration
in relations between the belligerents and hopefully increase the likelihood of a peace treaty.33
See Gregory H Fox, Humanitarian Occupation (CUP 2008) 208–209; Richard D Caplan, ‘Transitional
Administration’ in Vincent Chetail (ed), Post-Conflict Peacebuilding: A Lexicon (OUP 2009) 359, 364; UNGA,
‘Universal Realization of the Right of Peoples to Self-Determination: Resolution adopted by the General Assembly
on 22 December 2003’ (2 March 2004) UN Doc A/RES/58/161, para 2; Steven Wheatley, ‘The Security Council,
Democratic Legitimacy, and Regime Change in Iraq’ (2006) 17(3) European Journal of International Law 531,
540.
26
Prosecutor v Mladen Naletilić and Vinko Martinovic. (Judgment) [31 March 2003] ICTY IT-98-34-T para 217.
27
See Adam Roberts, ‘Prolonged Military Occupation: The Israeli-Occupied Territories since 1967’ (1990) 84(1)
The American Journal of International Law 44, 46.
28
Hague Convention (IV) Respecting the Laws and Customs of War on Land, with Annex of Regulations
(adopted18 October 1907, entered into force 26 January 1910) TS No 539 (Hague Regulations).
29
Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August
1949, entered into force 21 October 1950) 75 UNTS (GC IV) 287.
30
See Christopher Greenwood, ‘The Administration of Occupied Territory in International Law’ in Emma Playfair
(ed), International Law and the Administration of Occupied Territories (Clarendon Press 1992) 242, 245.
31
See Gerry J Simpson, ‘The Diffusion of Sovereignty: Self-Determination in the Post – Colonial Age’ (1996) 32
Stanford Journal of International Law 255.
32
Georg Schwarzenberger, ‘The Law of Belligerent Occupation: Basic Issues’ (1960) 30 Nordic Journal of
International Law 10, 12-14.
33
Doris Appel Graber, The Development of the Law of Belligerent Occupation 1863-1914 – A Historical Survey
(Columbia University Press 1949) 37-40.
25
5
This rationale, an understanding based on contemporary experience that occupations
were not prolonged in nature, and a belief that occupiers were not particularly interested in
civilian affairs, or would not need to be, help to explain why the Hague law does not concentrate
on matters related to the civilians.34 Instead, it concentrates on issues pertinent to the displaced
sovereign. One example is Article 55, which classifies the occupier as only the administrator of
public properties,35 which it must do according to the rules of usufruct (prudent
administration).36 Another example is Article 43, which requires that the existing laws must be
respected unless pursuit of ‘public order and safety [civil life]’ absolutely prevents doing so.
The 1949 Diplomatic Conference in Geneva was a response to developments in the
nature of the state and in the conduct of warfare up to and during the world wars, which had
demonstrated the inadequacies of the Hague law with regard to human welfare.37 The ‘Geneva
law’ provisions of the law of occupation supplemented rather than replaced the Hague law.38
The humanitarian rationale of the Conference greatly shaped the content of the law, which is
focused on the plight of civilians during occupation, typified in provisions such as the
requirement not to create unemployment (Article 52),39 and provisions regarding labour
conditions (Article 51).40
The law of occupation imposes obligations on the occupier and gives rights to the
occupied in relation to how the administration is conducted. For example, Article 50 GC IV
establishes obligations pertaining to education of children, Article 55 GC IV to the supply of
foodstuffs and medical supplies to the civilian population,41 and Article 48 of the Hague
Regulations42 governs collection of taxes. There is an emphasis on the indication of areas where
administration must be conducted rather than on change or development.43 The expectation is
that change will be deferred until the occupation ends,44 meaning that any attempts to make
permanent changes would be of doubtful legality.45 There are, however, limited circumstances
in which the law of occupation allows for making temporary legislative changes.46
Article 43 Hague Regulations,47 as supplemented with Article 64 GC IV,48 is thought to
embody the raison d’être of the law of occupation: the ‘conservationist principle’.49 Article 43,
34
Eyal Benvenisti, International Law of Occupation (Princeton University Press 1993) 20-21.
Hague Regulations (n 28) art 55.
36
This provision is returned to below in the discussion on the use of natural resources in the oPt.
37
See Eyal Benvenisti, International Law of Occupation (Princeton University Press 1993) 23-27.
38
See Jean S Pictet (ed), Commentary: The Fourth Geneva Convention Relative to the Protection of Civilian
Persons in Time of War (International Committee of the Red Cross 1958) 614.
39
GC IV (n 29) art 52.
40
ibid art 51.
41
ibid arts 50 and 55.
42
Hague Regulations (n 28) art 48.
43
Greenwood (n 30) 246.
44
See Gregory H Fox, ‘The Occupation of Iraq’ (2005) 36(2) Georgetown Journal of International Law 195, 234240.
45
Greenwood (n 30) 245.
46
See Hilaire McCoubrey and Nigel D White, International Law and Armed Conflict (Dartmouth Publishing 1992)
287.
47
Hague Regulations (n 28) art 43.
48
GC IV (n 29) art 64.
49
See McCoubrey and White (n 46) 286.
35
6
as noted above, requires that the existing laws must be respected unless this is absolutely
prevented by the pursuit of ‘public order and safety [civil life]’. The key term in Article 43 is
‘absolutely prevented’. The nature of the phrase is aptly described by Stone: ‘It has never been
taken literally; and unless it is so taken, the boundaries of the occupant’s legislative powers are
still to be drawn.’50 It has been seen as a matter of military necessity only,51 but most texts now
link it with both military necessity and necessity for public order and safety, or civil life,
depending on language.52
The preceding account indicates that the law of occupation protects the right to selfdetermination by essentially freezing its exercise while the occupation continues. The
justification may be found in the following logic: attempts to exercise elements of selfdetermination, such as acts involving the depletion of the capital of natural resources, will be
susceptible to direct and indirect influence from the occupier; thus such acts should be
prevented, as they are not acts of free determination, given the representation problem. In
addition, they should be prevented because they will pre-empt or distort the self-determination
choices available once the occupation has ended. This is the pre-emption problem. An
occupier’s adherence to the law of occupation should ensure that an occupied people are in a
position to resume self-determination once the occupation ends. This logic is most persuasive
in a shorter-term occupation. A prolonged occupation, to which we now turn, challenges the
feasibility of freezing change and development of the state and civil infrastructure.
4. The Right to Self-Determination in a Prolonged Occupation
In a prolonged occupation, extending over many years, the right to self-determination continues
to generate an obligation for the occupier to end the occupation.53 Moreover, adhering to the
law of occupation will continue to protect the right to self-determination. Yet the sufficiency of
this approach—protecting self-determination through preserving the circumstances of the
territory—will likely reduce as time passes. In an occupation that spans many years, limiting
the scope for changing and developing the territory may start to pre-empt matters of selfdetermination. Infrastructure will start to become outdated, for example. In addition, if
resources are to be utilized or preserved effectively, choices must be made about what steps to
take and about which actors should make those choices. For such reasons, prolonged occupation
challenges the idea that the conservationist approach in the law of occupation is an optimal
response to matters of self-determination. Scholars have addressed how the conservationist
principle should be understood in circumstances of prolonged occupation.54
This debate includes Pellet’s proposal for reading the conservationist principle in light
of the right to self-determination. Pellet has argued that the law of occupation was originally
50
Julius Stone, Legal Controls of International Conflict (Reinhart and Company 1954) 698.
See Edmund H Schwenk, ‘Legislative Power of the Military Occupant under Article 43, Hague Regulations’,
(1945) 54 The Yale Law Journal 393 and the many citations therein.
52
See Michael Bothe, ‘Occupation, Belligerent’, Encyclopedia of Public International Law 3 (1997) 765;
McCoubrey and White (n 46) 284; for a broader reading see Benvenisti (n 2) 79.
53
See Ralph Wilde, ‘Expert Opinion on the Applicability of Human Rights Law to the Palestinian Territories with
a Specific Focus on the Respective Responsibilities of Israel, as the Extraterritorial State, and Palestine, as the
Territorial State’ Diakonia International Humanitarian Law Resource Centre in Jerusalem (9 February 2018) 13.
54
See work cited in Longobardo (n 6) section III A.
51
7
intended to protect the rights of the displaced sovereign. Consequently, the principle of
conservation should determine the validity of any changes made in the interest of military or
humanitarian necessity. Now, however, because it is the people who are sovereign, the limit
should be the right to self-determination.55 Hence, for Pellet, changes linked to humanitarian
interests can be pursued to the extent that they do not affect the right to self-determination.56
This, Pellet argues, would allow such changes up to the point of ‘physical character,
demographic composition, institutional structure, or status of […] territories.’ In this reading,
self-determination sets the limits on change and development. Such an approach foresees scope
for more invasive changes than under the conservationist principle, but prevents foundational
changes in the areas covered by the right to self-determination. One challenge is that a collection
of small changes could cumulatively have an overall impact on the scope for exercise of the
right to self-determination following the end of the occupation. Also, because this proposal
gives the occupier greater discretion, it increases the risk of changes being made to favour the
interests of the occupier.
This analysis suggests reasons to doubt that the right to self-determination is an adequate
replacement for the conservationist principle. It would therefore be preferable to have a specific
rendering of the conservationist principle for situations of prolonged occupation. Longobardo
has proposed a test based on an assessment of ‘the concrete advantage of the new policy: If it
benefits only the occupying power, it should be considered unlawful, whilst if it benefits the
local population, there is room to argue that it is lawful, provided that it does not strengthen the
occupying power’s claims over the territory.’57 One challenge with such an approach is how to
assess whether the new policy in fact benefits the local population. Benvenisti’s scholarship
suggests that the significance of this sort of challenge may be reduced through a focus on local
participation in the decision-making: ‘The more occupation policies are shaped and
implemented with the effective input of the local population, the more credibility will be given
to the occupant’s assertions of pursuing legitimate goals.’58 A challenge here would be
determining which local actors should participate and under what sort of conditions. There will
remain a risk that the local actors involved will be chosen because of potential alignment with
the preferences of the occupier.
The debate surrounding the scope and content of the conservationist principle in general,
but especially in relation to prolonged occupations, is one reason why it is important to
remember that the right to self-determination also functions separately from the law of
occupation. The right to self-determination operates in the background of the law of occupation,
providing baseline protection for the fundamental international community interest by ensuring
that people are free from domination in how they exercise fundamental societal choices. This
protection is especially relevant when contestation over the meaning of the law of occupation
for a particular set of circumstances undermines its effectiveness as a source of legal protection.
55
Pellet (n 3) 186.
ibid 202; see also Pål Wrange, ‘Self-Determination, Occupation and the Authority to Exploit Natural Resources:
Trajectories from Four European Judgments on Western Sahara’ (2019) 52(1) Israel Law Review 3, 19,
contemplating the merger of aspects of the law of occupation with the UN law for non-self-governing territories.
57
Longobardo (n 6) section III A.
58
Benvenisti (n 37) 79.
56
8
The subsequent sections develop this argument through a case study of the prolonged
occupation of the Palestinian territory.
5. Self-Determination of the Palestinian People
Israel occupied the Palestinian territory, consisting of the Gaza Strip and the West Bank,
including East Jerusalem, in 1967.59 Having now lasted for over 50 years, it is the longest
military occupation existing today.60 This section assesses particular aspects of the occupation
that can help illuminate the nature and significance of the legal backstop role of the right to
self-determination in circumstances of prolonged occupation. The discussion proceeds in the
following order: (A) the circumstances of the occupation overall; (B) the Oslo Accords; (C)
circumstances in Gaza; (D) the settlements and the wall; and (E) the use of natural resources.
A. The Overall Occupation and the Right to Self-Determination
The analysis in the preceding sections focused on one state occupying another state. The
circumstances of the prolonged occupation of Palestinian territory diverge from this model in
two main respects. First, while the people of Palestine exist and have the right to selfdetermination, as recognised in major, widely supported international instruments,61 there is
contestation among certain states as to whether Palestine has yet the status of a state.62 This
disagreement complicates Palestine’s ability to rely on state-based rights and obligations under
international law, and raises the importance of the right to self-determination as a basis for legal
protection from external interference.
Second, the Green Line from the armistice agreement of 1949 between Israel and Jordan
‘is currently internationally recognised as the eastern limit of Israeli sovereignty’,63 yet ‘Israel
has never recognised the Green Line as an international border and maintains it has claims to
59
See, for a succinct account on the history of the occupation, Israeli Wall case (n 7) [70-77].
Other situations which may be argued to constitute prolonged military occupations include the territories of:
Moldova (by Russia since 1992), Azerbaijan (by Armenia since 1991), Western Sahara (by Morocco since 1975),
Cyprus (by Turkey since 1974). There are other occupations that face the possibility of a prolonged reality, such
as the territory of Ukraine (by Russia since 2014).
61
Israeli Wall case (n 7) [118].
62
In November 2012, the UN General Assembly decided, by 138 votes to 9 with 41 states abstaining, ‘to accord
to Palestine non-member observer State status in the United Nations’. ‘Status of Palestine in the United Nations:
Resolution adopted by the General Assembly on 29 November 2012’ (4 December 2012) UN Doc A/Res/67/19,
3; see Andreas Zimmerman, ‘Palestine and the International Criminal Court Quo Vadis? Reach and Limits of
Declarations under Article12(3)’ (2013) 11(2) Journal of International Criminal Justice 303, 304; note also that
after referral from Palestine, and the conclusion of the preliminary investigation by the International Criminal
Court (ICC) prosecutor, ICC Pre-Trial Chamber I is preparing a jurisdictional ruling on the scope of the territorial
jurisdiction of the ICC under article 12(2)(a) of the Rome Statute in Palestine; Palestine has also initiated a case at
the ICJ, which will spotlight its claim to statehood, Relocation of the United States Embassy to Jerusalem
(Palestine v United States of America) (Application Instituting Proceedings) [2018] General List No 176; see
Nathaniel Berman, ‘Jerusalem before the International Courts: Utopias 2020’ (Opinio Juris, 10 August 2020)
<https://opiniojuris.org/2020/08/10/jerusalem-before-the-international-courts-utopias-2020/>
accessed
15
January 2021.
63
Michael Sfard, ‘B – Border/Barrier’ in Orna Ben-Naftali, Michael Sfard and Hedi Viterbo, The ABC of the OPT:
A Legal Lexicon of the Israeli Control over the Occupied Palestinian Territory (CUP 2018) 46.
60
9
the West Bank.’64 At the same time, Israel’s annexation of East Jerusalem lacks international
recognition.65 The dispute over exact territorial borders and the failure to resolve it contributes
to an explanation for the prolonged occupation.66 The right to self-determination requires that
an occupation be brought to an end, which would normally entail withdrawal of the occupier.
In the context of the occupied Palestinian territories (oPt), exercise of the right to selfdetermination has come to focus on the resolution of the political dispute over the territorial
claim. The right to self-determination requires that such negotiations proceed in good faith.67
In the pursuit of a political resolution, adherence to the law of occupation protects the
right to self-determination.68 Its conservationist principle conserves political, economic, social,
and cultural conditions, so that these matters may be freely determined when the occupation
ends. Disregard for the law of occupation in order to make changes in these areas may infringe
the right to self-determination. However, it may be possible that violations of the
conservationist principle—centred on an assessment of military necessity and necessity for
public order and safety or civil life—do not reach a sufficient level to infringe on the right to
self-determination. What matters for the right to self-determination is whether the occupier’s
actions lead to pre-emption of the choices available to the people on the organization,
utilization, and status of the territory following the end of the occupation.
The contestation surrounding whether or not the people of Palestine have selfdetermined to the status of a state generates additional self-determination-based obligations for
third states. In particular, there is an obligation on third states to be respectful of the on-going
process of determination.69 This could involve not acting in such ways that would pre-empt the
choice of final status: for example, removal or blocking of ties with a third state; or taking
actions that have implications for the disputed territorial boundary.
B. The Oslo Accords
In 1993, by putting aside the question of the dispute’s final settlement, the parties were able to
agree on an interim settlement which came to be known as the Oslo Accords. This provided for
a degree of self-government for a five-year transitional period, which would lead to further
negotiations on a permanent settlement.70 The framework for the interim period was set out in
the Declaration of Principles (DoP) negotiated in Oslo,71 and elaborated on in subsequent
interim agreements.72 The DoP provided for immediate transfer of limited authority to an
64
ibid 46.
ibid 49.
66
Gareau (n 7) 512.
67
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155
UNTS 332 (VCLT) art 26.
68
It is generally agreed, although disputed by Israel in relation to Geneva law, that both of the main instruments
of occupation apply to the oPt (although Israel still claims to follow Geneva law), see Israeli Wall case (n 7) [89101].
69
See Gareau (n 7) 516; also Israeli Wall case (n 7) [159].
70
See Avi Shlaim, The Iron Wall: Israel and the Arab World (Norton 2000) 516-523.
71
‘Declaration of Principles on Interim Self-Government Arrangements’ (13 September 1993) 93-54838 (E)
121093 (DoP).
72
See, e.g., ‘Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip’ (28 September 1995)
UN Doc A/51/889 and S/1997/357 (Oslo II).
65
10
interim Palestinian Authority (PA). This PA was to be appointed by the Palestinian Liberation
Organisation (PLO) with Israeli approval,73 with further authority being gradually transferred
to an elected Palestinian Council,74 such as has been provided for in subsequent agreements.75
The process has recently been described by a UN Special Rapporteur as ‘lifeless’. 76 Yet the
Accords have had a major impact on the infrastructure for governance,77 and continue to be
referred to in judicial practice.78
The Oslo Accords do not mention the law of occupation.79 They involve topically and
geographically limited transfer of authority to the PA,80 leading to speculation about an end to
or reduction in the scope of the application of the law occupation.81 Yet Israel ‘remained the
source of all powers and responsibilities, and retained residual powers in all spheres where no
such transfer had been effected,’82 underpinning the view that the territory remains occupied
and fully subject to the law of occupation.83 This is the position of the ICJ.84 Still, the Oslo
Accords are an important element in Gross’ thesis that there are layers of indeterminacy
surrounding the question of whether and to what extent the law of occupation continues to apply
to the oPt.85 This heightens the importance of the right to self-determination as an additional,
standalone legal basis for assessing practices concerning the oPt.
How do the Oslo Accords relate to the right to self-determination? On the one hand, the
arrangements they introduce were intended to be temporary, not pre-empting the right to selfdetermination but rather functioning as a preparatory step towards its realisation.86 They were
also agreed to by the PLO. At the time the PLO was a national liberation movement,87 an
73
DoP (n 71) art VI.
DoP (n 71) art III.
75
See, e.g., for the long list of areas, Annex III, Oslo II (n 72).
76
UNGA, ‘Situation of Human Rights in the Palestinian Territories Occupied Since 1967’ (22 October 2018) UN
Doc A/73/45717 para 47; on the legal status of the Oslo Accords, compare G.R. Watson, ‘The ‘Wall’ Decisions
in Legal and Political Context’ (2005) 99(1) The American Journal of International Law 6, 22-24, with Yuval
Shany, ‘Faraway, so Close: The Legal Status of Gaza after Israel's Disengagement’ (2006) 8 Yearbook of
International Humanitarian Law 369, 381.
77
See Christine Bell, Peace Agreements and Human Rights (OUP 2003) 157; on the jurisdictional allocations, see
Omar M Dajani, ‘Israel’s Creeping Annexation’ (2017) 111 The American Journal of International Law Unbound
51.
78
See section 5.E below.
79
The Interim Agreement directs the limits on Palestinian authority to be gauged by reference only to the
provisions of ‘the DoP, this Agreement, or any other agreement that may be reached between the two sides’ Oslo
II (n 72) art XVIII 4(a).
80
Aeyal Gross, The Writing on the Wall: Rethinking the International Law of Occupation (CUP 2017) 182-183.
81
See, e.g., Benvenisti (n 37) 211; Peter Malanczuk, ‘Some Basic Aspects of the Agreements between Israel and
the PLO from the Perspective of International Law’ (1996) 7 EJIL 485, 487; see also discussion in ibid 192 – 193.
82
Gross (n 80)184.
83
ibid.
84
See Israeli Wall case [77]; also Iain Scobbie, ‘Gaza’ in Elizabeth Wilmshurst (ed), International Law and the
Classification of Conflicts (OUP 2012) 280, 298.
85
Gross (n 80) 189.
86
See Gross (n 80) 197; Bell (n 77) 153.
87
Frank L M Van de Craen ‘Palestine Liberation Movement’ (1990) 12 Encyclopedia of Public International Law
278.
74
11
umbrella organisation for several factions88 which had received widespread international
recognition as the representative of the people’s right to self-determination.89 On the other hand,
the arrangements put in place by the Accords have been long-lasting and connect to actions
concerning settlements and natural resources,90 which impede the right to self-determination
(see sections below). This is a reason to take greater interest in the adequacy of the PLO’s
consent as an expression of the will of the people.
The PLO received recognition as the representative of a people with a right to selfdetermination under circumstances of occupation.91 There is limited practice to draw upon to
make sense of the limits on such a representative’s authority. The circumstances of occupation
generate a risk that the occupier will dominate their decision-making.92 Article 47 GC IV
addresses this by precluding any changes to political institutions or agreements between the
occupied and occupier that would deprive protected persons of the benefits of the GC IV.93
Consider also the ICJ’s recent advisory opinion on the Legal Consequences of the
Separation of the Chagos Archipelago from Mauritius in 1965. The ICJ was of the view that
the consent of the representatives of the Mauritian people to the ceding of territory to the UK,
while Mauritius was a non-self-governing territory and therefore under the authority of the UK,
was not a ‘free and genuine expression of the will of the people concerned.’94 The ICJ did
though hint that that a more thorough attempt to ascertain the will of the people could have
generated consistency with the right to self-determination.95 Similar reasoning can help make
sense of the requirements of the right to self-determination under circumstances of occupation.
The individuals who are treated as the representatives of the occupied people should not be
assumed to have a mandate to consent to actions that will pre-empt the right to selfdetermination. Additional evidence of a free and genuine expression of the will of the people is
needed. This was not present for the Oslo Accords.96 At minimum, this reduces the strength of
the argument that the Accords can justify actions that pre-empt the right to self-determination.
See Adrien Katherine Wing, ‘The Palestinian Basic Law: Embryonic Constitutionalism’ (1999) 31(2) Case
Western Reserve Journal International Law 383, 392.
89
In 1974, the UN General Assembly recognised the PLO as ‘the principal party to the question of Palestine.’
UNGA, ‘Invitation to the Palestine Liberation Organization’ (14 October 1974) A/Res/3210(XXIX).
90
Gross (n 80) 187.
91
See also Gareau (n 7) 498.
92
See Pictet (n 38) 67; for the argument that elections and international recognition offset this risk, see Benvenisti
(n 37) 210.
93
Pictet (n 38) 272 – 276.
94
Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 (Advisory Opinion)
[2019] ICJ Rep 95, para 172.
95
ibid; ‘heightened scrutiny should be given to the issue of consent in a situation where a part of a non-selfgoverning territory is separated to create a new colony.’ The ICJ does not specify what would be sufficient as a
free and genuine expression of the will of the people; in other recent judicial practice from the UK and the EU
concerning non-self-governing territories, evidence of consultation with the people (which was absent) has been
treated as a requirement for the validity of agreements between the governing authority and a third party for the
use of natural resources, see Wrange (n 56) 19; consultation with the people has also been a feature of the practice
for determining the future status of a territory subject to colonial rule, Ralph Wilde, International Territorial
Administration: How Trusteeship and the Civilising Mission Never Went Away (OUP 2008) 160-161.
96
The Oslo process grew out of a secret channel of negotiations among leading Palestinians and Israelis, which
were subsequently upgraded to official negotiations, see Norwegian Ministry of Foreign Affairs, ‘Report:
88
12
C. Gaza
In September 2005, Israel withdrew its settlements and military installations from the Gaza
Strip. The Prime Minister Ariel Sharon, in an address to the UN General Assembly, claimed
that this represented ‘the end of Israeli control over and responsibility for the Gaza Strip.’97 Yet
Israel has continued to exercise control over the territory in a variety of ways. The Israeli NGO
Gisha, in a still accurate report from 2007,98 highlighted and described the following elements:
• Substantial control of Gaza’s land crossings;
• Control on the ground through incursions and sporadic ground troop presence (‘no-go
zone’);
• Complete control of Gaza’s airspace;
• Complete control of Gaza’s territorial waters;
• Control of the Palestinian population registry (including who is a ‘resident’ of Gaza);
• Control of tax policy and transfer of tax revenues;
• Control of the ability of the Palestinian Authority to exercise governmental functions;
• Control of the West Bank, which, together with Gaza, constitute a single territorial
unit.99
The absence of a complete end to Israeli control has prompted debate about whether the law of
occupation is no longer applicable.100 Israel has argued before the Israeli High Court of Justice
(HCJ) that its application has ended101; the HCJ accepts this argument but does not consider all
of the occupier’s obligations to be extinguished.102 The academic literature includes several
approaches,103 including arguments for the continued application of the law of occupation based
on the right to self-determination.104
Reflecting on the academic debate, Gross recognises that:
One might argue that, given the lack of full and substantive self-determination (which
in the Palestinian case must include effective self-government in both the West Bank
Norway's involvement in the peace process in the Middle East’ (31 October 1999)
<https://www.regjeringen.no/en/dokumenter/involvement/id420034/> accessed 15 January 2021; It is also
reported that there was a significant level of opposition to the Accords amongst Palestinians, and that the PLO
Executive Committee was split, making it a struggle for Yasser Arafat, Chairman of the Executive Committee,
to muster the necessary majority amongst the 18 members, see Shlaim (n 70) 521.
97
Gisha, ‘Disengaged Occupiers: The Legal Status of Gaza: Executive Summary (Executive Summary)’ (2007) 8
<http://www.gisha.org/UserFiles/File/publications_english/Publications_and_Reports_English/ExecutiveSumma
ry.pdf> accessed 15 January 2021.
98
See UNGA (n 76).
99
Gisha (n 97) 10; Gross (n 80) 234 discussing how the sum of control is bigger than the parts.
100
See Gross (n 80) 204 – 215.
101
ibid 212.
102
ibid 216-17.
103
Compare Shany (n 76) 378, 383, with Scobbie (n 5) 24 – 25, 29, 31.
104
Scobbie (n 5) 24 – 25, 29, 31.
13
and Gaza), it is better to characterize the situation as one of occupation, consistently
including the full scope of duties associated with occupation.
However, Gross also asks: ‘is reinforcing the occupant’s right and duty to intervene always
desirable?’105 Gross argues instead ‘for a functional approach, in which the occupier only has
obligations for elements where control continues’.106 The functional approach has practical
relevance. How does it relate to the right to self-determination?
In reducing its involvement in the territory, Israel may be argued to have created some
autonomous space for what goes on in the territory to be determined by the people of Palestine,
and thereby to have reduced the level of infringement of the Palestinians’ right to selfdetermination that Israel’s presence represents. Under such an interpretation, the continued
application of the law of occupation to the whole of the territory and to all public functions
might be viewed as no longer necessary from a self-determination perspective. However, there
are reasons to query the quality of the autonomous space created as a result of Israel’s partial
disengagement. There is now greater autonomy, yet it is questionable whether the identity of
those actors with authority in Gaza would be the same if Israel did not still exercise the level of
control that it does. That is, the circumstances within the Gaza Strip that are connected to
Israel’s continued control might help to explain why it is that Hamas, specifically, has been able
to rise to and sustain authority. Moreover, the control that Israel continues to exert has an
influence on the governance decisions taken by Palestinians with authority in the Gaza Strip.
For instance, decisions concerning the energy sector are affected by Israel’s control of the
electricity supply.107
The fact that the quality of the autonomous space in the Gaza Strip is not equivalent to
an unoccupied territory is a basis to argue for the continued application of the whole of the law
of occupation to the whole of the territory.108 However, accepting a functional approach to the
law of occupation does not necessarily coincide with a view that the right to self-determination
is being realised in areas where the law of occupation no longer applies. The right to selfdetermination continues to operate as a standalone basis for assessing the circumstances.
Especially when taken as a whole, the control that Israel exercises continues to prevent the
exercise of the right to self-determination in the Gaza Strip. It is possible to make sense of the
situation legally by accepting the functional approach to the application of the law of
occupation, while at the same time attending more closely to how the control that Israel
continues to exercise denies the right to self-determination.
105
See also Gross (n 80) 214 discussing the double edge sword involved in arguing for the continued application
of the law of occupation.
106
ibid 215.
107
See The World Bank, ‘Cash-Strapped Gaza and an Economy in Collapse Put Palestinian Basic Needs at Risk:
Press
Release’
(Jerusalem,
28
September
2018)
<https://www.worldbank.org/en/news/pressrelease/2018/09/25/cash-strapped-gaza-and-an-economy-in-collapse-put-palestinian-basic-needs-at-risk>
accessed 15 January 2021.
108
Matthew Saul, ‘The Functional Approach to the Occupation of the Gaza Strip and the Right to SelfDetermination’ (Opinio Juris, 25 April 2012) <http://opiniojuris.org/2012/04/25/the-functional-approach-to-theoccupation-of-the-gaza-strip-and-the-right-to-self-determination/> accessed 15 January 2021.
14
D. Altering the demographic composition, character, and status of the Palestinian
territory
The UN Security Council has a long line of resolutions concerning the occupation of Palestinian
Territory.109 To take a recent example, in Resolution 2334 (2016), the UNSC condemns:
all measures aimed at altering the demographic composition, character and status of the
Palestinian Territory occupied since 1967, including East Jerusalem, including, inter
alia, the construction and expansion of settlements, transfer of Israeli settlers,
confiscation of land, demolition of homes and displacement of Palestinian civilians, in
violation of international humanitarian law and relevant resolutions.
This quote from the resolution encompasses various actions undertaken by Israel,110 including
the establishment and expansion of settlements in East Jerusalem and the West Bank,111 but
also the establishment of a wall or security barrier which the UN Secretary General describes
as deviating ‘more than 7.5 kilometres from the Green Line in certain places to incorporate
settlements, while encircling Palestinian population areas.’112
The rest of this section addresses the settlements and the wall together, in order to
indicate the relevance of the right to self-determination as a basis for assessing specific actions
that affect the demographic composition, character, and status of the Palestinian territory.113
In its advisory opinion, the ICJ found that the settlements represent a breach of Article
49 paragraph 6 of the Fourth Geneva Convention, which provides: ‘The Occupying Power shall
not deport or transfer parts of its own civilian population into the territory it occupies.’ The ICJ
found that:
[the] provision prohibits not only deportations or forced transfers of population such as
those carried out during the Second World War, but also any measures taken by an
occupying Power in order to organize or encourage transfers of parts of its own
population into the occupied territory.114
The ICJ also addressed the settlements in combination with the wall from the perspective of the
right to self-determination. It found that:
the construction of the wall and its associated régime create a ‘fait accompli’ on the
ground that could well become permanent, in which case, and notwithstanding the
109
Including resolutions 242 (1967), 338 (1973), 446 (1979), 452 (1979), 465 (1980), 476 (1980), 478 (1980),
1397 (2002), 1515 (2003), and 1850 (2008), as cited in UN Security Council, ‘Resolution 2334, Adopted by the
Security Council at its 7853rd meeting, on 23 December 2016’ (23 December 2016) Un Doc S/RES/2334.
110
See Committee on the Elimination of Racial Discrimination (CERD), ‘Consideration of reports submitted by
States parties under article 9 of the Convention’ (3 April 2012) UN Doc CERD/C/ISR/CO/14-16, para 25.
111
See UNGA (n 76) 14; CERD (n 110), directing Israel to eliminate any policy of ‘demographic balance’ from
its planning and zoning policy in the West Bank.
112
UNGA, ‘Report of the Secretary-General prepared pursuant to General Assembly resolution ES-10/13,’ (24
November 2003) UN Doc A/ES-10/248, para 7.
113
For an account of the HCJ’s jurisprudence, see Gross (n 80) 262.
114
Israeli Wall case (n 7) [120].
15
formal characterization of the wall by Israel, it would be tantamount to de facto
annexation.115
Here, the Court indicates that it does not view the annexation of territory as having yet occurred.
Others argue that it has.116 Annexation is a contravention of the right to self-determination.
The ICJ found also that:
the route chosen for the wall gives expression in loco to the illegal measures taken by
Israel with regard to Jerusalem and the settlements, as deplored by the Security Council
... There is also a risk of further alterations to the demographic composition of the
Occupied Palestinian Territory resulting from the construction of the wall inasmuch as
it is contributing … to the departure of Palestinian populations from certain areas. That
construction, along with measures taken previously, thus severely impedes the exercise
by the Palestinian people of its right to self-determination, and is therefore a breach of
Israel’s obligation to respect that right.117
In the absence of a decisive finding that annexation has yet occurred, the finding of breach of
the right to self-determination stems from actions that pre-empt the choices available for the
Palestinian people at the end of occupation.118 The settlements are changing, and will
potentially continue to change, the territory’s demographic, so that the population on the
territory is no longer as it was at the commencement of the occupation. They also impede the
exercise of the right to self-determination in the sense that they take or have the potential to
take land and other resources away from Palestinian exercise.119 The construction of the wall
compounds these elements: it creates conditions that lead or may lead to further departures of
Palestinians from the territory, and strengthens the hold of Israel over the land.
The ICJ’s approach brings into focus the argument that Israel, as the occupier, is dutybound to refrain from actions that actually or potentially pre-empt the process of selfdetermination.120 This argument is also relevant with regard to specific actions concerning
resources on the territory.
E. Exploiting natural resources
The UN General Assembly has expressed grave concern about a range of practices negatively
impacting Palestinian natural resources.121 The precise relevance of the law of occupation and
115
ibid [121].
For arguments that there is annexation see Special Rapporteur on the situation of human rights in the Palestinian
territories UNGA (n 76) para 32; Dajani (n 77) 51, 53.
117
Israeli Wall case (n 7) [122].
118
Gareau (n 7) 516.
119
See Gross (n 80) 279, 284.
120
Gareau (n 7) 516.
121
UNGA, ‘Permanent Sovereignty of the Palestinian People in the Occupied Palestinian Territory, Including East
Jerusalem, and of the Arab Population in the Occupied Syrian Golan Over Their Natural Resources: Resolution
Adopted by the General Assembly on 22 December 2011’ (29 March 2012) UN Doc A/RES/66/225. This includes
the destruction of agricultural land and orchards, and the destruction of water pipelines and sewage networks,
which negatively affects the water supply.
116
16
the right to self-determination for acts affecting natural resources is exemplified by the practice
of quarrying the land for the production of gravel.122
This practice was addressed by the HCJ in a case from 2011.123 Israeli NGO Yesh Din
petitioned the HCJ to order the cessation of quarrying in Israeli-owned quarries in the West
Bank and of the development of new quarries. The petition was dismissed. The HCJ recognised
that the quarries were opened in the 1970s after the commencement of the occupation. It
assessed them for consistency with Article 55 of the Hague Regulations:
The occupying State shall be regarded only as administrator and usufructuary of public
buildings, real estate, forests, and agricultural estates belonging to the hostile State, and
situated in the occupied country. It must safeguard the capital of these properties, and
administer them in accordance with the rules of usufruct.
The essence of this provision is ‘that an occupying state is entitled to reap the fruits of the
occupied territory’s assets but must not deplete their “capital” by harming the assets
themselves.’124 The HCJ saw that the practice affected the capital,125 but found it justified in
light of the prolonged occupation, which required adjustment of the traditional laws of
occupation to allow for economic development and growth.126 This reading of the law has been
criticised for undervaluing the objectives and principles of the law of occupation anchored in
Article 43 ‘Hague law’, which should have been the starting point for the interpretation.127 The
HCJ also supported its position with reference to the terms of the Oslo Accords.128 Specifically,
Article 31 of the first Schedule to Appendix 3 (the civil appendix) of the Interim Agreement,
which provides for transfer of the quarries to the Palestinians and an agreement that the quarries
would remain active in the interim.129 This position is criticised in light of the absence of
attempts to transfer the quarries to the Palestinians.130 In addition, it is criticised on the basis of
the block the law of occupation places on curtailing the rights of the occupied population on
the basis of agreement with the occupier.131
It likewise pre-empts the right to self-determination when the occupier opens new
quarries; it means that once the people are in a position to self-determine, the resource will no
longer be available in the same form for the people to determine how it should be used.
6. Legal Consequences from Denial of the Right to Self-Determination
122
See also Longobardo (n 6).
HCJ 2164/09 Yesh Din – Volunteers for Human Rights v Commander of the IDF Forces in the West Bank and
others (26 December 2011).
124
Gross (n 80) 199.
125
Yesh Din (n 123) [8].
126
ibid [10].
127
See Guy Harpaz and others, ‘Expert Legal Opinion on HCJ 2164/09 Yesh Din in Support of the Petitioner's
Motion for an En Banc Review’ (January 2012) para 101.
128
Yesh Din [6].
129
ibid.
130
Gross (n 80) 201.
131
ibid 201; GC IV (n 29) art 47.
123
17
The preceding discussion highlighted how the exercise of the right to self-determination in the
oPt has come to focus on the resolution of the political dispute over the territorial claim through
negotiations which the law requires proceed in good faith. The discussion also highlighted
occupier actions, in relation to resources and settlements, which challenge the presumption of
good faith and independently infringe the right to self-determination by pre-empting the choices
available for the Palestinian people at the end of occupation. This section identifies and
examines some of the legal consequences that follow from denial of the right to selfdetermination under the law of state responsibility, especially what is possible and required of
third states in light of the right’s elevated normative status.132
A. Erga omnes
In the Barcelona Traction case of 1970, the ICJ found that there are obligations in international
law that are owed by states ‘towards the international community as a whole’, and that,
consequently, ‘all States can be held to have a legal interest in their protection’.133 This is the
concept of obligations erga omnes, which ‘must be fulfilled regardless of the behavior of other
states in the same field’ and ‘give rise to a claim for their execution that accrues to any other
member of the international community.’134 Authoritative bodies assert that the right of all
peoples to self-determination is a norm with erga omnes status.135 This provides for any third
state to invoke state responsibility in relation to denial of the right to self-determination.
The scope for invoking responsibility includes demanding cessation and calling for
reparation for the injured party. Such steps can serve as part of a strategy to encourage a noncompliant occupier to become compliant. Signalling that the occupier is not complying with its
international legal obligations can affect its legitimacy both domestically and internationally.136
For this to affect the occupier requires that a concern for its legitimacy exists, as well as an
understanding that complying with the law is a means to improving its legitimacy. It also
requires that, from the perspective of the occupier, any such legitimacy concerns outweigh the
strategic benefits derived from maintaining the occupation.
Article 54 of the ILC Articles on Responsibility of States for Internationally Wrongful
Acts (ARSIWA) provides a basis for countermeasures to coerce compliance, but the specific
nature of the measures permissible in this context remains uncertain. The general practice of
countermeasures includes examples of economic sanctions and cessation of certain types of
132
See also Longobardo (n 6) Section VI.
Barcelona Traction, Light and Power Company Limited (Belgium v Spain) (Judgment) [1970] ICJ Rep 3 [33].
134
Cassese (n 18) 134.
135
Case Concerning East Timor (Portugal v Australia) (Judgment) [1995] ICJ Rep 90 para 29; Israeli Wall case
(n 7) [88] and [156]; see, Gentian Zyberi, ‘Self-Determination Through the Lens of the International Court of
Justice’ (2009) 56(3) Netherlands International Law Review 429, 432; consider also the erga omnes partes nature
of the obligations created by human rights instruments such as the ICCPR. Israel is a state party to the ICCPR.
This means that it is open to any other state party to invoke responsibility for a breach of the treaty, regardless of
whether or not it is directly injured; International Law Commission (ILC), ‘Articles on State Responsibility ILC,
‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’ (ARSIWA) in
Report of the International Law Commission on its 53rd Session (23 April-1 June and 2 July-10 August 2001) UN
Doc A/56/10, art 48; see also ICCPR art 41.
136
See, generally, Beth A Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (CUP
2009) 124.
133
18
relations.137 The fact that the amount of practice is limited is connected to the absence of a clear
incentive for third states to monitor and enforce human rights around the world. 138 Still, in
recent years, Libya, Syria, and Russia have all been subject to significant third-party counter
measures from, among others, EU member states.139 Reasons given for why third states
condemn but do not issue sanctions against Israel for specific breaches of international law
include a concern that they will not be constructive in the search for a political resolution to the
dispute over the territorial claim.140 In this respect, it is important to reflect on the jus cogens
status of the right to self-determination, as serious breaches of jus cogens norms generate
obligations for third states.
B. Jus Cogens
The establishment of the concept of jus cogens norms (peremptory norms) in international law
occurred through the 1969 Vienna Convention on the Law of Treaties (VCLT). Article 53 of
the VCLT provides:
[A] peremptory norm of general international law is a norm accepted and recognized by
the international community of States as a whole as a norm from which no derogation
is permitted and which can be modified only by a subsequent norm of general
international law having the same character.
Article 53 also indicates the consequence that a treaty ‘is void if, at the time of its conclusion,
it conflicts with a peremptory norm of general international law.’ Scholarly attention has since
been given to other legal consequences of the acceptance of a norm as jus cogens.141 In the view
of the ILC, if a state fails to fulfil an obligation that has a jus cogens status in a gross or
systematic manner, all other states are prohibited from recognizing as lawful the resulting
situation, and from rendering aid or assistance in maintaining it.142 The ILC specifies that ‘[t]his
not only refers to the formal recognition of these situations, but also prohibits acts which would
imply such recognition’.143
In its commentary to its articles on state responsibility, the ILC includes the right to selfdetermination as an example of a norm with jus cogens status. The ILC is not precise in its
wording or explanation for this status, relying on a quote from the ICJ in the East Timor case—
137
See ILC, (n 135) 137, para 3 (commentary on art 54); see also Christian J Tams and Antonios Tzanakopoulos,
‘Barcelona Traction at 40: The ICJ as an Agent of Legal Development’ (2010) 23(4) Leiden Journal of
International Law 781, 793-794.
138
See Simmons (n 136) 122.
139
See Martin Dawidowicz, ‘Third-Party Countermeasures: A Progressive Development of International Law?’
(2016) 29 Questions of International Law, Zoom In 3 <http://www.qil-qdi.org/third-party-countermeasuresprogressive-development-international-law/> accessed 15 January 2021.
140
See, eg., ‘The German parliament has called on Israel to halt its plans to annex settlements in the occupied West
Bank. However, it has ruled out the use of sanctions against Israel’ in ‘Germany rejects Israel's West Bank
annexation plans as illegal’ Deutsche Welle (1 July 2020) <https://www.dw.com/en/germany-rejects-israels-westbank-annexation-plans-as-illegal/a-54019730> accessed 15 January 2021.
141
See Antonio Cassese, International Law (2nd edn, OUP 2005) 205-208.
142
ILC (n 135) arts 40 and 41.
143
ILC (n 135) 114, art 41, para 5.
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a quote which does not refer directly to peremptory norm (jus cogens) status.144 The strength of
the argument on jus cogens status varies depending on how the notion of jus cogens is
understood and on which components of the right to self-determination are in focus.145 The
strongest arguments limit the claim to colonial and alien domination and supplement state
practice with appeal to the moral strength of the obligation. 146 This covers situations of
prolonged occupation. Indeed, the ILC has specified in its work on state responsibility that
states’ obligation to desist from recognition ‘applies to “situations” created by these breaches,
such as, for example, attempted acquisition of sovereignty over territory through the denial of
the right of self-determination of peoples.’147
The ICJ’s opinion on the consequences of a denial of the right to self-determination in
relation to the construction of the wall in the oPt does not directly use the terminology of jus
cogens,148 but identifies obligations consistent with those flowing from a serious breach of jus
cogens norms under ARSIWA Article 40:
Given the character and the importance of the rights and obligations involved, the Court
is of the view that all States are under an obligation not to recognize the illegal situation
resulting from the construction of the wall in the Occupied Palestinian Territory,
including in and around East Jerusalem. They also are under an obligation not to render
aid or assistance in maintaining the situation created by such construction. It is also for
all States, while respecting the United Nations Charter and international law, to see to it
that any impediment, resulting from the construction of the wall, to the exercise by the
Palestinian people of its right to self-determination is brought to an end.149
7. Conclusion
This chapter has examined the relevance of the right of all peoples to self-determination in the
context of prolonged occupations with a specific focus on the oPt. The conclusion provides a
summary of key points that are important in relation to the chapter’s three main parts. It also
notes several policy implications that follow from the analysis.
What is the function of the right of all peoples to self-determination in the context of a prolonged
occupation?
ILC (n 135) art 40, para 6; in the East Timor case (135), the ICJ states that ‘[t]he principle of self-determination
... is one of the essential principles of contemporary international law’.
145
See Matthew Saul, ‘The Normative Status of the Right to Self-Determination: A Formula for Uncertainty in
the Scope and Content of the Right?’ (2011) 11(4) Human Rights Law Review 609; also Matthew C R Craven,
‘The European Community Arbitration Commission on Yugoslavia’ (1995) 66(1) British Yearbook of
International Law 333, 383.
146
See Saul (n 145) 636 – 637.
147
ILC (n 135) 114, art 41, para 5; Dajani (n 77) 55.
148
For criticism of the approach taken by the ICJ in the Wall Opinion for appearing to merge the erga omnes
concept with the concept of jus cogens, see James Crawford, ‘International Crimes of States’ in James Crawford,
Alain Pellet, Simon Olleson, and Kate Parlett (eds), The Law of International Responsibility (OUP 2010) 411-412;
see also Gareau (n 7) 520.
149
Israeli Wall case (n 7) [159]; see also Gareau (n 7) 517.
144
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The right to self-determination may be used as an interpretative aid, giving meaning to
provisions of the law of occupation. This may provide a basis for certain expansive
interpretations of aspects of the law of occupation, such as the conservationist principle, to
allow greater change and development of state and civil infrastructure, which could help avoid
pre-emption of the right to self-determination through the time-related decay of its objects.
However, the test associated with the right to self-determination—that is, whether a change
would pre-empt the choices available at the end of occupation—is more lenient than the
standard test of necessity for public order or civil life under the conservationist principle. The
risk of the occupier manipulating the law of occupation to suit its interests is heightened.
The right to self-determination is also relevant as a standalone basis for assessing the
occupation. This is true in two ways. First, occupation in and of itself is a breach of the right to
self-determination, which provides a legal requirement that the occupation must cease. Under
a more traditional invasion of a territory by a third state, this simply requires withdrawal. When
complicating factors exist, such as uncertainty about the status of components of the occupied
territory, the right to self-determination points towards a political process undertaken in good
faith.
Second, the right to self-determination may also be used as basis for assessing specific
aspects of the practice of the occupier. In a shorter-term occupation, this feature may not
emerge, as the terms of the law of occupation focused on conservation of existing infrastructure
may be sufficient to protect the right to self-determination. The relevance of the right to selfdetermination emerges in situations of prolonged occupation or other circumstances that lead
to uncertainty about whether the law of occupation applies in its entirety or where adherence to
the law is simply neglected. In such circumstances, the right to self-determination serves a
backstop role. It precludes practices that will pre-empt the choices about the organization,
utilization, and status of a territory available to the people at the end of the occupation.
How is the right to self-determination relevant in the oPt?
The political process aimed at ending the overall occupation of the oPt has led to significant
developments, such as the occupier granting a degree of authority for self-governance to
Palestinians through the PA, although the PA remains subject to the influence of the occupier
in the vast majority of its public functions. These developments add complexity to law of
occupation-based questions about the nature and extent of the obligations established for the
respective parties. Such circumstances generate a heightened need to pay attention to the right
to self-determination as a legal backstop, precluding actions that would pre-empt the eventual
exercise of self-determination following the end of the occupation. Israeli actions that pre-empt
and thereby breach the Palestinians’ right to self-determination include the settlements and the
wall, along with the opening and operation of gravel quarries. The strength of the Oslo Accords
as a possible legal justification for actions that pre-empt the right to self-determination has been
challenged in this chapter due to the lack of a direct mandate from the Palestinian population
for such actions. If a future peace process addresses issues concerning the status, infrastructure,
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and resources of the territory,150 its consistency with the right to self-determination will increase
in line with the extent to which it reflects a free and genuine expression of the will of the
Palestinian people.
What are international legal consequences and remedies for denial of the right to selfdetermination?
The right to self-determination has erga omnes status. This gives all states a basis to invoke
responsibility and call for an end to acts in breach of the right. It also has jus cogens status,
requiring states to desist from recognition of the situation created by the right’s breach. It places
states under an obligation not to render aid or assistance in the maintenance of the situation.
States should also cooperate to end a situation that constitutes a breach to the right of selfdetermination. This can be facilitated in situations of prolonged occupation through a greater
focus not only on the occupation overall but also on how specific actions of the occupier and
occupied relate to the right to self-determination.
See, eg., France's initiative in Ministère de L'Europe et des Affaires Étrangères, ‘France Diplomacy – Initiative
for the Middle East Peace Process’ <https://www.diplomatie.gouv.fr/en/country-files/israel-palestinianterritories/peace-process/initiative-for-the-middle-east-peace-process/> accessed 15 January 2021.
150
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Matthew Saul