UNGA-SPECPOL

STUDY GUIDE

20th-22nd September/kiitmun /instakiitmun/kiitmun/+kiitmun/kiitmun

Greetings,

Delegates are requested to keep a few pointers in mind before reading the background guide and preparing for the simulation of the United Nations General Assembly-Fourth Committee – Special Political and Decolonization orSPECPOL at KIIT International Model United Nations 2019.

A background guide is not supposed to contain all the information on an agenda. It contains an introduction to the agenda to help delegates in further research.

The background guide is divided into different sections.

The first section is about the SPECPOL and its function and powers. The functions and powers of all councils and committees are outlined by their mandate, which also defines the scope of debate in council. The mandate also defines what kind of actions can be taken by the SPECPOL and how it is separate from the actions taken by other committees.

The second section explains the agenda at hand in brief.

Delegates must note that to understand any agenda it is important to deeply explore its development in history and understand various political, social, legal, cultural, religious, economic, and security aspects riding with it. The guide just touches upon some of these aspects and the delegates must explore them in detail while preparing for and deliberating during the conference.

And at last, we would like to extend our warmest welcome to you all for KIIT International MUN 2019.

Regards,

Satrajit Sahani (Chairperson)

Andeta Karamina (Vice Chairperson)

COMMITTEE HISTORY

The Fourth Committee of the General Assembly of the United Nations is the Special Political and Decolonization Committee, otherwise known as SPECPOL. Established in 1993, SPECPOL is the combination of the Decolonization Committee (formerly the Fourth Committee) and the Special Political Committee. This committee’s inception took place in 1990 when the United Nations established 1990-2000 as the “International Decade for the Eradication of Colonialism.”. This was particularly important considering at the time of the United Nation’s creation, 750 million people lived in what would be considered to be a colonized territory. Over eighty former colonies have become independent since 1945. Today, in part due to the work of the Fourth Committee, this number has drastically decreased to approximately two million, an amount SPECPOL is still determined to address.

SPECPOL includes all 193 Member States, uniting to alleviate developing countries’ dependencies on former colonizing powers. The committee derives power from its mandate in Chapter XI of the United Nations Charter, which commits to the preservation of the rights and dignities of people living in non-self-governing territories. The committee passes resolutions with suggestions on the optimal ways for the United Nations and member states to address the issues of colonized people. According to its mandate, the Fourth Committee can discuss issues such as self-determination, decolonization, and peacekeeping efforts. While SPECPOL was derived from the Disarmament and International Security Committee, it takes on issues that the First Committee does not address, as well as looking at topics with a wider scope. Unlike other UN committees, SPECPOL shines a spotlight on issues pertaining to occupation, colonization, and subjugation, with the primary goal of making all countries independent and self-sufficient from outside powers. Also, according to its mandate, SPECPOL is not able to take military action and many of its resolutions are passed along as suggestions to the Security Council, which ultimately decides whether or not the plan of action will be carried through.

Since its inception, SPECPOL has passed many resolutions addressing the quality and framework of information technology in developing countries, paying special attention to the development of the United Nations’ Department of Public Information.The Committee has also attempted to develop a consensus among member states regarding the issue of the peaceful uses of outer space. Historically, SPECPOL has focused its attention on issues such as the Israeli-Palestinian conflict. In

addition, SPECPOL frequently works in conjunction with groups such as the High Commissioner on Refugees and also specialized groups such as the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Palestinian People and Other Arabs of the Occupied Territories.

The Special Political and Decolonization Committee holds a very unique role in the United Nations. While other main committees aim to resolve current global issues, SPECPOL concerns itself with healing countries from the lasting impact of their troubling histories. The committee’s foremost goal is to ensure that all countries enjoy the benefits of the independence to which they are entitled, and only when all countries are economically, culturally, and socially liberated can the world move forward.

SIMULATION

As members of the Special Political and Decolonization Committee (SPECPOL), delegates will represent the views of their respective countries throughout the duration of our debate. Delegates will be responsible for collaborating to develop resolutions for the issues while remaining within the mandate of SPECPOL. While these topics are new to SPECPOL, all resolutions created will need to bear in mind that the goal of SPECPOL is to promote international peace and security. The beauty of the KIIT MUN conference is its ability to offer delegates a hands-on global education and to allow them to experience a real work environment they would be unable to experience elsewhere.

Upon arriving in committee, delegates will be introduced to the members of the dais, which is made up of the Chairperson and the Vice-Chairperson. In preparing for the conference by writing the background guide and update papers, the Chairperson and the Vice Chairperson have become substantive experts on all matters related to SPECPOL, and delegates should use them as knowledgeable resources throughout the conference. As veterans of parliamentary procedure and committee simulation, the role of the dais is to ensure that delegates have a realistic, educational, and enjoyable experience at KIITMUN. Should delegates have any questions on either procedural or substantive matters, they should not hesitate to approach any of the three members of the dais for assistance.

After delegates have been introduced to the dais, they will first debate the setting of the agenda and then progress to substantive debate, which will deepen and progress throughout the following sessions. In a committee of this size, collaboration and decorum are essential for each and every session. Formal debate consists of delegates adding themselves to the Speakers List to be formally recognized before the rest of the committee for a specified length of time. When delegates appear before the committee, it is their opportunity to give an overview of their country’s position as well as accept questions from other delegates for clarification on policy or solutions. It is imperative that delegates remain respectful of others during this time and observe all procedural rules in order for delegates to be heard and for the speaker’s list to flow smoothly.

While formal debate is a key portion of our simulation, the majority of debate in SPECPOL will take place in caucus format. Caucusing can be done in one of two ways – moderated or un moderated. Moderated caucuses flow similarly to formal debate. Delegates' speaking times are often shorter, and each caucus has a specific topic that delegates must discuss in their comments. Un-moderated caucuses suspend formal rules of debate for a designated period of time during which delegates are free to move around the room and informally discuss policy and potential solutions with one another. The majority of writing for working papers and resolutions will occur during these un-moderated caucuses.

Another unique feature of SPECPOL as a committee of the General Assembly is the process by which its working papers and resolutions are created. Solutions start out as a set of ideas, are formatted into a working paper, then voted upon as draft resolutions, and finally presented as resolutions in plenary if passed in committee. The length of the resolution-writing process, the number of delegates in SPECPOL, and the capabilities of KIIT MUN Administration will limit the number of resolutions that can be introduced, thus making collaboration and compromise essential.

The two most important things for delegates to keep in mind throughout debate are decorum and country policy. As a committee of the General Assembly, SPECPOL includes delegates from each member state of the United Nations; hence, it is one of the largest committees. Each delegate will be given equal opportunity to speak before the committee and granted each member’s undivided attention. The alteration or suspension of rules may occur at the discretion of the dais in order to maintain control of the committee and to preserve decorum and respect for all delegates. Additionally, delegates are to keep in mind that country policy is the anchor for all proposals both presented and supported by the delegate. Although collaboration is the goal, it is always secondary to the integrity of a delegate’s country policy. The desire to compromise should never supersede the delegate’s ability to uphold his country’s stance on the issue. With this in mind, apt preparation for committee on policy, background, and potential solutions is imperative in order for all delegates to maintain quality debate and to remain on task at all times.

A Brief History of the Israeli-Palestinian Conflict

● The three regions on the map (Israel, Gaza, and the West Bank) were once known as Palestine. Ownership of the land is disputed primarily between two

different groups: Israeli Jews and Palestinian Arabs (who are chiefly Muslim, but also include Christians and Druze). This conflict has left its mark from at least a century back to the early 1900s. The region along the eastern Mediterranean had been under the Ottoman Turkish rule for centuries, and was religiously diverse.Many people in the area were cultivating a distinctive identity as Palestinians, and not just ethnic Arabs like the neighbors. They began to regard this as a national identity that was closely being recognized with the land.

● At the same time in the late 19th century, Zionism movement was found in Europe to respond to the rising anti-Jewish rhetoric in the Russian Empire. The movement was established with the belief that Judaism was more than a religion but a nationality which deserved a nation of its own. In the first decades of the 20th century, almost 40.000 of European Jews moved to Palestine.

● After the Arab-Israeli War of 1947-1948, Palestine was divided into the areas you see here. Jewish Israelis, whose ancestors began migrating to the area in the 1880s, say their claim to the land is based on a promise from God, and also for the need for a safe haven from widespread hostility toward the Jewish people (known as anti-Semitism). The Palestinian Arabs say they are the rightful inhabitants of the land because their ancestors have lived there for hundreds of years.

● The Gaza Strip is a rectangle along the Mediterranean coast between Israel and Egypt. The majority of its approximately 1.4 million residents are Palestinian refugees, many of whom have been living in refugee camps for decades; 80 percent were estimated to be living in poverty in mid-2007.

● Under the Oslo Peace Accords signed in 1993, Gaza was turned over to the newly created Palestinian Authority, to form one wing of an emerging Palestinian state, along with the West Bank and a potential land corridor between them. But two different parties rule these two regions—the militant Hamas controlled Gaza and Fatah ruled the West Bank. Many Israeli settlers remained in Gaza.

● In September 2005 the Israeli prime minister at the time, Ariel Sharon, withdrew

all Israeli settlers from Gaza, making it the first territory completely in Palestinian hands. Israel, however, kept tight control over all border crossings and continued to conduct raids.

● In January 2006, Hamas won a surprise victory in the Palestinian parliamentary elections, ousting the Fatah government. Then in a burst of fighting in June 2007 in which more than 100 people were killed, Hamas gunmen routed the Fatah forces, and seized control of Gaza outright. Israel, which had refused to recognize the Hamas government, responded by clamping down even tighter on the flow of goods and people in and out of the territories.

● By June 2008, Hamas and Israel were both ready to reach some sort of accommodation, and the six-month truce was declared, although never formally defined. Their job, the Hamas officials said, was to stop rocket attacks on Israel not only from its own armed groups, but also from others based in Gaza, including Islamic Jihad and Al Aksa Martyrs Brigades.

● It took some days, but they were largely successful. Hamas imposed its will and even imprisoned some of those who were firing rockets. But the goods shipments, while up some 25 to 30 percent and including a mix of more items, never began to approach what Hamas thought it was going to get. Israel said it planned to increase the shipments in stages, and noted that the rockets never stopped completely.

● After the truce lapsed on Dec. 19, rocket firing stepped up quickly, and Israeli air strikes soon followed. The death toll on the first day was estimated at 225; by Dec. 29, it had topped 300. On Jan. 3, a land invasion of Gaza began, and by Jan. 8, the death toll was 660.

Introduction

The Israeli-Palestinian conflict is rooted in a dispute over land claimed by Jews as their biblical birthright and by the Palestinians, who seek self-determination.

Despite repeated attempts to end the conflict between the Israelis and the Palestinians, there is no peace settlement in sight. Neither side has fulfilled the commitments it made under the 2003 roadmap – a phased timetable designed to lead to a viable Palestinian state alongside Israel, put together by the United States, the European Union, Russia and the United Nations.

Under that peace blueprint, the Palestinian Authority was to rein in militants, and it embarked on a U.S.-backed law-and-order campaign in the occupied West Bank. But Hamas, a militant group whose stated aim is the destruction of Israel, beat rival Fatah party in the Palestinian parliamentary elections in 2006 and took control of the Gaza Strip in 2007. Fatah retained control of the West Bank. Hamas rejects Western calls to recognize Israel and renounce violence.

Despite the roadmap's call for a halt to Israeli settlement activity, Israel continues to expand settlements in the West Bank and in Arab East Jerusalem. Fatah and Hamas signed a reconciliation agreement in May 2011, but it was not implemented until 2014. Under the deal, a U.S.-backed unity government was formed in June 2014 and elections are to be held within six months. Israel says it rejects any government that includes Hamas.

More than 50 percent of Palestinians in the West Bank and Gaza – 2.2 million people – are refugees, many of whom live in crowded camps. Life in the Palestinian territories has got worse in recent years and economic hardship has deepened. Socio-economic conditions in Gaza, which is subject to the most severe Israeli restrictions, have deteriorated particularly sharply and the population is increasingly reliant on food aid. Since the end of 2008, Israel has launched three major operations in Gaza with the declared aim of stopping Hamas militants from firing rockets into the Jewish state. The most recent began in July 2014.

In Depth Analysis

Today's tensions between the Israelis and the Palestinians and their Arab neighbors date back to the early 20th century when Jews began migrating in significant numbers to Palestine, then under Ottoman Turkish rule. The ensuing struggle for land and self-determination by both peoples led to the creation of the state of Israel in 1948, a series of Israeli-Arab wars, two lengthy Palestinian uprisings and waves of Palestinian refugees.

Although modern Zionism - the idea of a Jewish national homeland in Palestine – began in the late 19th century, the land of Israel has been central to Jewish consciousness since Jewish exile in biblical times. Small Jewish communities lived

peacefully in Palestine side by side with both Muslim and Christian Arabs for centuries. In 1917, Balfour Declaration was constructed by the British’s government which endorsed the creation of a Jewish homeland in Palestine. After the World War One, the Ottoman Turkish Empire collapsed and left the British alongside with French Empires to carve up the Middle East. The League of Nations adopted the Balfour Declaration and granted the Mandate for Palestine to the British. Later on, the centuries of anti-Semitism in Europe which culminating in the Nazi Holocaust that killed 6 million Jews during World War Two, led to growing pressure for a Jewish homeland. In November 1947, the United Nations General Assembly adopted a plan to partition Palestine, then under British mandate, into Arab and Jewish states. The plan was meant to give Jews a state, to establish Palestinian independence, and to end the sectarian violence that the British could no longer control. In May 1948, Jews living in Palestine declared the establishment of the state of Israel.

Five Arab countries invaded immediately in 1948-1949, known as the Arab-Israeli War, was won by the Israel. In the ensuing conflict, some 750,000 Palestinians fled the fighting or were forced to leave their homes. A similar number of Jews migrated to Israel from their homes in Arab states amid fears of a backlash against them. Many Jews saw the creation of Israel as the embodiment of their long-held aspiration for a land of their own, but for Palestinians the loss of their homes and land in 1948 became known as "al Nakba" – the catastrophe.

A second wave of Palestinians was displaced during the 1967 war that pitted Israel against Jordan, Egypt and Syria. In the six days of fighting, Israel captured the West Bank – including East Jerusalem – as well as the Gaza Strip, the Sinai Peninsula and the Golan Heights. Israel was now occupying the Palestinian territories, alongside with all of Jerusalem and its holy sites. An estimated 500,000 Palestinians fled, according to the United Nations – mostly to Egypt, Syria, Lebanon and Jordan. The U.N. Relief and Works Agency for Palestinian Refugees in the Near East (UNRWA) began operations in 1950, initially as a temporary response to the humanitarian crisis created by the new refugees. Today, the agency is the main body meeting the needs of Palestinian refugees in the West Bank and Gaza, Lebanon, Jordan and Syria with basic services such as education, healthcare and social services. In 1978, Israel and Egypt signed the US-brokered Camp David Accords that resulted in Israel gave Sinai Peninsula back to Egypt as part of a peace treaty. Over the few decades after the event, the other Arab states gradually made accord with Israel, even if they never signed formal peace treaties.

The tents that made up the first refugee camps gradually gave way to the concrete buildings that make up today's camps as it became clear that no solution to their

plight was in sight. Since then, Palestinian refugee camps have grown upwards rather than out, with residents building new storeys to accommodate the new generations being born. Conditions are often overcrowded, with poor sanitation. There are high levels of unemployment, and rising levels of diabetes, hypertension, cardiovascular disease and cancer.

The status of the refugees is a key issue in peace talks, with many Palestinians claiming the "right of return" – the right to go back to their homes in what is now Israel. Some still hold keys to the family homes they lost in 1948. Israel fears that agreeing to this concession would be disastrous, largely because the higher Palestinian birth rate means the number of Palestinians would soon outstrip the Jewish population. Israel's own "law of return" allows anyone with at least one Jewish grandparent to settle in Israel and take up citizenship. Under the citizenship rules, many Palestinians who marry Arab Israelis are denied Israeli residency.

The two parts of the Palestinian territories are, in fact, two areas about 45 km (30 miles) apart. The West Bank is between Jerusalem – long claimed as a capital by both Palestinians and Israelis – and Jordan to the east, while Gaza is a tiny strip along Israel's western Mediterranean coast.

Intifada and Security

After the 1967 war, Israel’s military was occupying the Palestinian territories of the West Bank and Gaza, and this was when the conflict became an Israeli-Palestinian struggle. Successive Israeli governments began building Jewish settlements on the newly occupied land. Generally built on high ground, many settlements overlook Palestinian towns and villages, and there are tensions between the two communities. U.N. Security Council resolutions and the International Court of Justice have both declared the settlements illegal under international law, but Israel has rejected the rulings and continues to expand its settlements.

The Palestinian Liberation Organization (PLO), which had formed in the 1960s to seek a Palestinian state, fought against Israel, including acts of violence. Initially, the PLO claimed all of what had been British Palestine, meaning that it wanted to end the state of Israel entirely. Fighting between Israel and the PLO went on for years, including a 1982 Israeli invasion of Lebanon to kick the group out of Beirut. The PLOlater said it would accept dividing the land between Israel and Palestine, but the conflict continued. At the same time, more Israeli or known as the settlers were moving in and made their homes in the West Bank and Gaza. Growing settlements forced Palestinians off of their land and divide communities.

In 1987-1993, the First Palestinian Intifada, or uprising, broke out in protest against the Israeli occupation of the West Bank and Gaza Strip. It began with mostly protests and boycotts but soon became violent. Palestinians vented their anger by throwing rocks at soldiers and tanks near their camps and homes; there were also roadside shootings at Israeli vehicles and assaults on settlers. The Israeli military retaliated harshly against the Palestinian population as a whole, resulted in a couple hundred Israelis and over a thousand Palestinians died in the first Intifada. The military used a system of checkpoints to control the movement of people and goods around the West Bank, imposed curfews at times of high security and detained many Palestinians, often without charge or trial.

Although groups of prisoners are periodically released, large numbers remain in custody. In 1993, following the Oslo Peace Accords, Israel agreed to establish limited Palestinian self-rule in parts of the West Bank and Gaza Strip. The Palestinian territories were divided into three zones: Area A under full Palestinian control; Area B under Palestinian civil authority and Israeli security control; and Area C under full Israeli control. About 60 percent of the West Bank is in Area C.

The Palestinian Authority, headed by Yasser Arafat, was set up to run the new autonomous areas. Little progress was made in the following years towards a final peace settlement and disillusionment set in among Palestinians, such as the unsuccessful Camp David II in 2000. A second Intifada broke out in 2000-2005, sparked by a controversial visit by Israeli opposition leader Ariel Sharon to the Al Aqsa compound in Jerusalem, a site sacred to both Jews and Muslims. About 1000 Israelis and 3200 Palestinians had died in this conflict.

Amid growing concerns about the number of suicide bombings against Israelis by Palestinian militant groups such as Hamas, the Israeli army re-occupied cities in the West Bank. Israeli politics shifted right and the country built walls and more checkpoints to control Palestinians’ movements.It tightened up security measures around the Palestinian Territories, preventing thousands of Palestinians from going to work and trade in Israel. In 2003, Israel made a unilateral decision to dismantle all Jewish settlements in Gaza and some settlements in the West Bank. In 2005, around 8,000 settlers were forcibly evicted from Gaza by the Israeli army, along with 500 from the West Bank, and moved into alternative accommodation provided by the Israeli government.

Many of the settlers, some of whom believe Israel has a biblical claim to Gaza and the West Bank, felt betrayed. The Gaza Strip came under Palestinian control. The area, 40 km long and 10 km wide, is home to around 1.7 million Palestinians and is one of the

most densely populated places on earth. In January 2006, Hamas won parliamentary elections and became the lead player in the Palestinian national unity government.

In June 2007, a power struggle between Hamas and Fatah led to fighting between armed factions on the streets of Gaza in which around 100 people died. Hamas declared control over Gaza, leading President Mahmoud Abbas to dissolve the Hamas-led unity government and set up an emergency, Fatah-based government in the West Bank. Israel tightened border restrictions at its Gaza borders after the Hamas takeover. Gaza’s economic life has suffered and relief organizations have found it difficult to get aid to the Palestinian population. The border crossing into Egypt at Rafah is theoretically run by the Palestinians under EU monitoring.

Egypt closed the border after Hamas' takeover, except to allow food and medicine into Gaza, and to allow a few Gazans - including those seeking medical treatment or to study - into Egypt. In May 2011, a new Egyptian government under President Mohamed Morsi re-opened the border for people and eased visa restrictions on Palestinians. The Egyptian military closed the border again when it ousted Morsi in 2013. Fatah and Hamas signed a reconciliation agreement in May 2011, mediated by Egypt, but it was not implemented until 2014 because of disputes over power-sharing and the handling of the conflict with Israel. A unity government was formed in June 2014, with presidential and parliamentary elections to be held within six months. Israel says it rejects any government that includes Hamas and refuses to hold peace talks with it. It also announced plans to build 3,000 more settler homes, and barred three Gaza-based ministers from travelling to the West Bank to be sworn in.

The unity government is backed by the United States. Its prime minister is based in the West Bank and most senior positions are held by members of the previous Palestinian Authority government. All ministers have accepted Quartet principles. Hamas effectively retains its security grip in Gaza in the absence of Fatah forces there. Hamas’ militia there, the Qassam Brigades, numbers 25,000, and it also controls further 20,000-armed personnel.

Gaza is still mainly run by about 43,000 employees hired since Hamas took over. But they have not been paid in months. Another 70,000 employees in Gaza, not hired by Hamas, have for years been paid by the PA to stay at home in order to weaken the Hamas government, the International Crisis Group (ICG) says. The two sides agreed to a unity government because of changes in neighboring countries particularly Egypt – caused by the Arab uprisings of 2010 and 2011, the ICG said.

Fatah lost a reliable ally when Egyptian President Hosni Mubarak was ousted. Hamas became more willing to work with Cairo after its parent organization – Egypt's Muslim Brotherhood – began to play a growing role in Egyptian politics.

The Gaza Chapter

Hamas called off a six-month truce with Israel in December 2008 and stepped up rocket attacks, citing Israeli raids and the continuing blockade of the enclave Israel launched its biggest offensive in Gaza in four decades. It said its aim was to stop militants firing rockets into Israel.

According to the Palestinian Centre for Human Rights, 1,417 people including 926 civilians were killed during Israel's Dec. 27-Jan. 18 offensive. Israel lost 10 soldiers and three civilians in the fighting. Israel estimated 1,166 Palestinians were killed, 295 of them civilians. The air raids damaged hospitals, water supply systems, the U.N. compound, mosques and government buildings as well as private homes. Israel accused Hamas of sheltering among the civilian population and using sites such as mosques and schools as military posts. Israel was criticised for using white phosphorous - which can cause severe burns - in civilian areas. The fighting triggered protests around the world, and there were calls for a ceasefire from the United Nations, United States, European Union, Arab League, Russia and other countries.

Israeli government officials said the offensive’s goals included weakening Hamas by killing its fighters and destroying its rocket arsenal. Israel also bombed a network of tunnels to Gaza from neighboring Egypt, which had allowed Palestinians to smuggle in weapons. In July 2010 Israel said it was taking steps to reduce the number of civilian casualties in future wars, and would restrict the use of white phosphorous. In November 2012, Israel launched another major operation that began with the killing of Hamas's military chief, Ahmed Al-Jaabari in a precision air strike on Nov. 14. It said the attack was in response to escalating missile strikes from Gaza. The following day, two rockets from Gaza targeted Tel Aviv, the first attack on Israel's commercial capital in 20 years.

Israel followed up its attack by shelling Gaza from land, air and sea, and mobilized tens of thousands of military reservists along the border with Gaza. Some 170 Palestinians – including many children – were killed in Gaza and six Israelis were killed by rocket fire before an Egypt-mediated ceasefire took effect on Nov. 21. Tensions escalated again in June 2014 when three Israeli teenagers were abducted in the West Bank. Hamas did not confirm or deny a role in the kidnapping. Israel arrested hundreds of Hamas activists, and Hamas retaliated by launching hundreds of rockets from Gaza, targeting Tel Aviv. Israel began shelling Gaza on July 8 and sent in ground troops on

July 18, aiming to destroy Hamas’s missile stores and a large network of tunnels used to smuggle goods in and out of Gaza.

Hundreds of Palestinians have been killed and thousands wounded, many of them civilians, and a few Israeli soldiers and civilians have also been killed. They were left feeling that they are stuck under an ever-growing occupation with no future as a people. Israel put Gaza under a strict blockade and unemployment has risen to more than 40%. In the West Bank, more settlements are smothering Palestinians, who often respond with protests and sometimes with violence even though most of them just want normal lives. In Gaza, Hamas and other violent groups have periodic wars with Israel. The fighting overwhelmingly kills Palestinians including manycivilians. In Israel itself, most people have become apathetic, with just a little political will for peace.

Historical Background and the Legality for Statehood

Any historical discussion of the existence or not of the Palestinian State must begin with the creation of the State of Israel and the Arab State called Palestine by following critical historical events:

A. The Mandate for Palestine

B. The UN Partition Plan of 1947

C. The Israeli Unilateral Proclamation of Independence of May 14, 1948

D. The Palestinian Declaration of Independence of November 15, 1988 supported by UN General Assembly resolution 43/177

While the later Oslo Accords are of relevance to the question of Palestinian Statehood, the above are important in establishing the genesis of both the Israeli and Palestinian State.

A. The Mandate for Palestine

The territory of Palestine from which both Israel and Palestine originated, was one of the territories detached from the Ottoman Empire and placed in 1922 under the League of Nations Mandate system with Great Britain appointed as the Mandatory Power. Article 22 of the Covenant of the League of Nations imposed upon the Mandatory Power the principle “that the well being and development of such peoples form a sacred trust of civilization”. In particular in what were termed Class A Mandates, which included Palestine, the Covenant provided for the provisional recognition of “their existence as independent nations… subject to the rendering of administrative advice and assistance by a Mandatory”. The intention was always to nurture one or more independent nations from the British Mandate. However, Britain found itself unable to cope with the Arab and Jewish revolts, the illegal Jewish immigration and the rising violence in the Mandate territory. The British then notified the UN of their decision to terminate the Mandate not later than August 1, 1948. In an event crucial to both the founding of the State of Israel on May, 14, 1948, before the British Mandate ended, the then leader of the Jewish Community and the future Prime Minister David Ben-Gurion, declared unilaterally the independence of the State of Israel. It was very quickly recognized by the United States, the Soviet Union and other states, but not by any Arab states. What followed within a few days was the first Arab-Israeli war. The Israeli Army achieved a quick victory in the first 1948 war which has been termed the war of independence by Israel. After the British withdrawal, the Israeli army invaded the areas designated as part of the Arab State by the UN Partition Plan (discussed below) and subsequently occupied the territory, including the region encompassing Arab Jerusalem.

B. The UN Partition Plan

Under General Assembly Resolution 181 (II) Future Government of Palestine on November 29, 1947, the UN adopted a plan that would establish two provisional states, one Jewish and the other Arab. Jerusalem would be established as a separate special international regime, a corpus separatum, to be administered by the UN. There would

also be a transitional plan that would provide for the gradual withdrawal of British military forces, followed by the termination of the British Mandate by August 1, 1948. The UN would then declare the full independence of the new Jewish and Arab states by October 1, 1948. The importance of the UN Partition Plan as regards the possible statehood of Palestine is that GA Resolution 181 is mentioned in the Israeli Declaration of Independence as recognizing the right of the Jewish People to establish a state. It could therefore be argued that the Palestinian State utilizing its own declaration of independence could also draw its legitimacy from the same General Assembly resolution.

C. The Israeli Unilateral Proclamation of Independence of May 14, 1948

On May 14th, 1948, the same day as the British Mandate expired, the State of Israel unilaterally declared its formal establishment as an independent state. Minutes after the Israeli Declaration of Independence, the US recognized the State of Israel and was followed by several other nations including the Soviet Union on May 17, 1948. The Arab League refused to recognize the new State and instead announced the establishment of a civil administration throughout the Mandate territory. This government was subsequently recognized by Egypt, Iraq, Syria, Lebanon and Saudi Arabia. The 1948 Arab-Israeli war fought against Israel by Egypt, Iraq, Lebanon and Syria was ended by a quick victory by Israel and a signing of an armistice agreement with Syria on July 24th, 1949. The armistice demarcation line between Israeli and Arab forces was fixed by a general armistice agreement of 3 April 1949 between Israel and Jordan. A victorious Israel had not only retained its status as a new state under its Declaration of Independence, but had also increased its territory by almost 50%.

D. The Palestinian Declaration of Independence of November 15, 1988 supported by UN General Assembly resolution 43/177

On November 15, 1988, the Palestine National Council meeting in Algiers proclaimed the existence of the new independent state of Palestine. Like the Israeli unilateral declaration, the Arab declaration referred to the GA Resolution 181 as the legitimate authority for the establishment of the State of Palestine.9 Prior to that date, King Hussein of Jordan announced on July 31, 1988, Jordan was terminating all forms of

administrative and legal ties with what was terms the West Bank, thereby demarcating the possible territorial boundaries of the declared Palestinian State. Following the unilateral declaration of a Palestinian State, the UN General Assembly in G.A. Res. 43/177 in 1949, adopted a resolution which “acknowledge the proclamation of the State of Palestine by the Palestinian National Council on 15 November” and pronounced that "the designation 'Palestine' should be used in place of the designation 'Palestine Liberation Organization' in the United Nations system." Only the U.S. and Israel voted against G.A. Res. 43/177, with the majority of the world’s states, numbering 104, voting in favour with 44 abstentions. It could be argued that the immediate recognition of the unilateral declaration by such large numbers of states must be taken into account in determining the present statehood of Palestine as a matter of customary international law evidencing both state practice and opinion juris. American jurist, Professor John Quigley, makes the following case for recognition of the State of Palestine based on the General Assembly resolution:

That strong vote indicates that Palestine was regarded as a state. Had there been opposition, it would have been expressed. One may contrast in this regard the U.N. reaction in 1983 to a declaration of statehood for a Turkish Republic of Northern Cyprus. The international community found this declaration invalid, on the grounds that Turkey had occupied Cypriot territory militarily and that the putative state was an infringement on Cypriot sovereignty. The U.N. Security Council pronounced the independence declaration illegal: "Concerned at the declaration by the Turkish Cypriot authorities issued on 15 November 1983 which purports to create an independent State in northern Cyprus, . . . [c]onsidering . . . that the attempt to create a 'Turkish Republic of Northern Cyprus' is invalid,” the Security Council said that it “[c]onsiders the declaration referred to above as legally invalid and calls for its withdrawal; . . ." (S.C. Resolution 541 (1984).

Had the international community viewed the 1988 Palestine declaration as invalid, it would have said so loudly and clearly, given the volatility of the situation in the Middle East. It did not.

Following the 1988 Declaration and the General Assembly Resolution endorsing the Declaration of Independence, Palestine was in a short period of time recognized by eighty-nine states far more than the handful that recognized the State of Israel in the period after its Declaration of Independence. The fact that many, if not most, that recognized Palestinian Statehood were not from the western world can not invalidate

the legal consequences of such recognition. In addition, while many European states were withholding recognition out of caution, they did not necessarily contest the validity of Palestinian Statehood. Not surprisingly Israel claimed that the declaration had no meaning in reality as the declared state had no territory, no borders and with Jerusalem as the capital which was also the capital of the Jewish state. Like Israel, the arguments of the U.S. and other western states that opposed Palestinian Statehood were that the Palestinian State did not satisfy the traditional criteria for statehood under customary international law rules such as those in the Montevideo Convention.

As will be discussed below even if the Montevideo Convention criteria are still authoritative criteria in customary international law, there are contrary legal arguments that the Palestinian State does fulfill these traditional criteria under the Montevideo Convention. It should however, be kept in mind that such criteria cannot be mechanically applied to states whose full sovereignty is suppressed by belligerent occupation or are under some form of protected status or under international administration.

Palestinian Statehood and Membership in the United Nations

If the 1988 Declaration of Independence by the Palestinian National Council had been followed by admission to membership in the United Nations, given the fact that presently the majority of the world’s states have recognized the Palestinian State (including an increasing number of major world powers such as China, India, Russia and virtually all the Arab and Islamic states in the world representing the vast majority of the world’s population), the question of Palestinian statehood would have been without question even for a general determination of Palestine as a state under international law. So the question that has to be asked is why have there been persistent obstacles to Palestinian membership in the UN and its agencies?

Israel’s admittance to the UN and the occurred at a time when the emerging right of self determination was not as yet a recognized principle of international law and had not further evolved into a fundamental principle of international human rights law. This was even though the Israeli Declaration of Independence implicitly based its Declaration on the right of the Jewish people to self-determine within a Jewish

homeland. At that time there was no pressure at the UN or elsewhere to put the question of Arab or Palestinian self-determination at the UN at the same time as the acceptance of Israel’s Declaration of Independence.

The principle of self-determination evolved with the decolonization process in the UN and elsewhere after the Second World War. It was fully developed as a principle of international law and a universal human right by the time of the 1988 Palestinian Declaration of Independence.13 Indeed by that time, the UN’s response to the independence of the Congo and the unilateral declaration of Rhodesia by the white minority indicated that the criteria of self-determination legitimacy was more important than an effective government, one of the criteria used by Israel and the United States to argue against Palestinian statehood and membership in the UN and its various agencies. More recently the recognition of Bosnia in the middle of an internal civil war with a government that was inherently far from effective is also a testament that the right of self-determination is a crucial factor in the accession to statehood in international law.

However, it could be argued that the emergence of the right of the Palestinian people to self-determination did not by itself give rise to Palestinian Statehood, but enhanced that status as it existed from its beginning in the Mandate of Palestine, the Partition Plan and subsequently the 1988 Declaration of Independence as affirmed by the General Assembly Resolution 43/177.

Indeed, the U.S. utilized a peculiar interpretation of the General Assembly Resolution 43/177 of 1949 to oppose Palestinian membership in the UN. The Resolution in addition to affirming the need of the Palestinian people to exercise their sovereignty over their territory occupied since 1967 decided that as of 15 December, 1988, the designation “Palestine” should be used in the place of the designation “Palestine Liberation Organization” in the United Nations System. The U.S. declared that by this resolution the General Assembly had expressly withheld the attribution of statehood from Palestine since it was specified that the change of the designation of the PLO to “Palestine” was without prejudice to the observer status and functions of the PLO within the UN system. When a draft resolution was proposed in the General Assembly to make it clear that the intent of the Assembly was to have the designation Palestine construed as the State of Palestine, without prejudice to the acquired rights of the PLO, the resolution was not voted on, following a threat by the U.S. to withhold its assessed contribution to the budget of the UN.16

The U.S. also threatened a similar withholding of dues to the W.H.O. if Palestine was admitted as a member which resulted in the agency postponing action on the application for membership without declaring on Palestinian statehood. The Swiss government may well have faced the same pressure in determining against Palestinian accession to the Geneva Conventions of 1949 due to the uncertainty in the international community as to the existence or not of Palestinian Statehood and did not itself determine whether Palestinian Statehood existed.

There is evidence that the UN and the majority of the members of the UN treated Palestine as a State. In 1974 the U.N. General Assembly confirmed the self-determination rights of the Palestinian people. One jurist asserts that because the UN Security Council let it participate routinely in Security Council sessions when relevant issues were on its agenda, it was regarded as a State because under Security Council rules, only a "state" is entitled to participate. These acknowledgments of the legal personality of Palestine suggest that it is critical to have a more focused analysis of what constitutes a “state” in situations of belligerent occupation and for the purposes of such states exercising certain rights and duties.

It could well be argued that given the overwhelming geopolitical grounds as opposed to grounds based on international law principles, from the U.S. and its allies to Palestinian membership in the UN, the fact that it does not have full membership in the UN or its agencies is not substantially due to any determination of the whether Palestine qualifies as a State.

A Contrary View of the Application of the Traditional Criteria for Statehood as established by the Montevideo Convention

Many leading international law jurists assert that the Montevideo Convention of 1933 is generally regarded as representative of customary international law and referenced as such in early International Court of Justice Decisions, as regards the modern requirements for statehood.

However, there is insufficient legal analysis of this often stated thesis when one considers that the Convention was only binding on 19 Latin American state parties. To fulfill the requirements of customary international law, the Convention had to be followed, not just by state practice, but also followed out of a sense of legal obligation, the requirement of opinion juris.

As discussed extensively elsewhere, in brief, the Convention requires the following minimum standards. First, it must have a permanent population, which should be a

settled one rather than a transitory population. Second, it must have a defined territory whose size is not specified in the Convention, but probably some kind of de minimis territorial size is required, keeping in mind some of the tiniest territories, like Luxemburg, qualifies. Third, it must have an established government that has effective control, which need not be democratic. Finally, it must have capacity to enter into diplomatic relations. The problem with regarding the Montevideo Convention as applicable to any new claims of statehood is that it arose out of a meeting of independent Latin American States in 1933 that had emerged out of colonial status and eager to demonstrate their full personality to the world and counter any last vestige of claims by their former colonial masters.

As such, in practice the so called customary rules of the Montevideo Convention may not have as authoritative an application to states emerging out of the break up of existing non colonial multi-ethnic states, such as the former Yugoslavia or to States that were still struggling to break free from long standing colonial ties, such as the Congo, or from military occupation, such as East Timor and the Palestinian State. That authoritative application becomes crucial for the opinion juris requirement of customary international law. It is suggested for that reason, the primarily western doctrinal view of the applicability of the Montevideo Convention as customary international law has not been evidenced in the recognition by the international community of the Congo, Bosnia, Kosovo and East Timor where the vital minimum conditions of an effective government in control of its territory was far from clear. The cases of Bosnia and Kosovo are examined below. These more modern examples of state practice demonstrate perhaps the fact that the Montevideo Convention needs to be updated in the form of a more multilateral convention or treaty that takes into account the criteria for recognition of the growing number of secessionist movements around the world and of particular importance to the question of Palestinian Statehood, the effect of military occupation on the international legal personality of a pre-existing State. The Montevideo Convention application to these types of potentially new States is fraught with difficulty and perhaps no longer representative of customary international law.

Nevertheless, there are some who argue that even if the Montevideo Convention’s traditional criteria for statehood are still valid customary international law, Palestine does fulfill the conditions, despite the views of some western jurists.

The Contemporary Criteria for Statehood

Many positions taken by contemporary jurists as well as the recognition policy of some states tend to indicate that the traditional criteria are being extended to include the following elements: The elements cited are i) a lawful claim to statehood ii) being willing and able to abide by international law iii) viable entity iv) compatibility with the right of self-determination, v) respect for human rights and vi) constitutive theory of statehood.

However, what is often cited for this opinion is substantially the work of a small number of western jurists such as James Crawford and the work of the Israeli jurist Tal Becker.

Regarding the assertion that the traditional criteria have been extended as customary international law to include the contemporary criteria, there is very little state practice and the requisite opinion juris to suggest that this is the case, especially as regards the criteria of respect for human rights as a precondition for statehood as will be discussed below. One such example of a formal recognition policy cited by Becker is that the European Community had a formal recognition policy55 for the new states emerging from the break up of the former Soviet Union. However customary international law cannot be based on only the policies of the limited number of European states that is specific to the breakup of the Soviet Bloc countries.

Actual state practice in recent history would indicate that customary international law may be moving to make the traditional criteria compete for primacy with two of the contemporary criteria as the main basis of statehood, namely the compatibility with the right to self-determination and the constitutive theory of statehood as will be discussed below. Moreover, it can be strongly disputed that the claim to Palestinian Statehood fails all or most of the contemporary criteria as will be discussed in the following section.

i) Lawful claim to statehood

It can hardly be argued that the Palestinian State which is recognized by over half the world’s states should be regarded as resulting from conduct which violates international law and whose territorial integrity is confirmed by the majority of the world’s states in General Assembly resolutions and by the UN Security Council resolutions and the International Court of Justice. The fact that the Palestinian State also meets the traditional criteria under the Montevideo Convention places no obstacle to having Palestine qualify under this first contemporary criterion for Statehood. Given the history of the lawful existence of the Palestinian territory and population, it would be absurd to equate the Palestinian State with recent claims to

Statehood which were clearly unlawful such as the assertion by Russia of the new State of South Ossetia after their own military invasion of the Georgian territory.

ii) Viable Entity

The arguments against the Palestinian National Authority on this asserted ground is again based on the inability to function as a sovereign state as a matter of fact and law. These arguments again ignore the fact that such criteria can not be mechanically applied to a situation of belligerent occupation where as a matter of fact and law, the powers of the governmental entity can be severely limited, but the pre-existing state does not by that fact and law lose their sovereignty or international legal personality.

iii) Being willing and able to abide by international law

The requirement that the state be willing to abide by international law has been stated as another contemporary feature of international law. There is absolutely no foundation in any source of international law that would justify a position that a unilateral declaration to statehood by Palestine can be viewed as an illegal act due to the fact that both Israel and the PLO agreed to resolve all outstanding matters by negotiations, as arising from the Interim Agreement. The fact that the majority of the world’s states have recognized the 1988 Palestinian Declaration of Independence as legal and legitimate should have put to rest any argument on this issue. Moreover, there have been lawful declarations of unilateral declarations of independence based on legitimate self-determination assertions that did not await negotiations with the parent state. East Timor and the breakup of the former Yugoslavia into Bosnia, Croatia and Slovenia after unilateral declarations of independence are also examples.

There is an element of irrationality for anyone to suggest that the Palestinian State cannot even declare independence after the Oslo Accords expired on September 13, 2000 as it contained an obligation to refrain from doing anything to undermine the object and purpose of the Accords such as a unilateral declaration of independence. There is no international law authority supporting this position and if it was accurate, it would also call into question the legitimacy of Israel’s actions since the expiration of the Oslo Accords, given the illegal expansion of settlements in the West Bank. Moreover, the Palestinian Declaration had been pronounced long before the Oslo Accords and its permanence and legality has been recognized by over half the world’s states.

iv) Respect for Human Rights

There is a very weak argument to be made against Palestinian statehood that because human rights abuses have been allegedly committed in the territory administered by

the Palestinian National Authority along with an ineffective judiciary and widespread corruption, it is not able to comply with international law and so should be denied the status of Statehood. Clearly almost any state that has been recognized as an independent state in the past century would also have failed to qualify on this basis, including all the new Balkan states. This is clearly an absurd position.

v) Compatibility with the right of self-determination

Counter-argument will have to be made by Israel and others against the use of the Palestinian right of self-determination as the basis for recognizing their statehood as recognized by the UN Charter and the International Court of Justice. Such counterarguments would include the assertion that self-determination does not give rise as of right to unilaterally declare a sovereign state as there is no general right to statehood given that bestowal of such a status must take into account the legitimate rights of others. While contested by some writers, in the view of this author, this is an accurate position in the evolving field of international law. Moreover, the Palestinian right of self determination is not resting on the basis of its territory or as a colony belonging to another sovereign power which has violated the right of the Palestinian people to political, social or cultural self-determination which would require taking the legitimate interests of that sovereign power into account. Since the ending of the Ottoman sovereignty over Palestinian territory, the sovereignty of no other nation, including Israel, over the West Bank and the Gaza Strip has ever been recognized by the League of Nations, the United Nations General Assembly and most importantly the UN Security Council. The ICJ in the Advisory Opinion on the security wall has expressly confirmed this in the following terms:

The Court recalls that both the General Assembly and the Security Council have referred, with regard to Palestine, to the customary rule of “the inadmissibility of the acquisition of territory by war”. As regards the principle of the right of peoples to self-determination, the Court observes that the existence of a “Palestinian people” is no longer in issue, and has been recognized by Israel, along with that people’s “legitimate rights”. The Court considers that those rights include the right to self-determination, as the General Assembly has moreover recognized on a number of occasions.

However, opponents of the existence of a Palestinian State would argue that because the terms of the expired Oslo Accords and the Interim Agreement set out a framework that would result in a negotiated settlement, neither Israel nor Palestine can pursue rights unilaterally outside the agreed framework. This has not hindered Israel in terms of the expansion of the settlements and the building of the Wall which

indicates that there were unclear expectations in practice as to whether any obligations would outlast the expired negotiations.

The strongest argument against this asserted legal argumentation, is that nowhere in the Oslo Accords or the Interim Agreement did the Palestinian National Authority give up the Palestinian right of self-determination going back to the Mandate of Palestine, the Partition Plan, the 1988 Declaration of Independence and the various General Assembly resolutions together with the recognition of Palestine as a State recognized by the majority of the world’s states that affirmed the Palestinian right of self-determination. The Palestinian negotiators in the Oslo process never renounced their claim to Statehood on the basis of the Mandate for Palestine and the Partition Plan.

It should not be forgotten that Israel too bases its right to statehood on a unilateral declaration of independence and the fact that the Palestinian unilateral declaration has been recognized as legitimate and lawful by a majority of the nations of the world.

PERMANENT SOVEREIGNTY OVER NATURAL RESOURCES (PSNR) FROM A HUMAN RIGHTS PERSPECTIVE

While international law reserves a cardinal position to State sovereignty in the governance of natural resources, it also recognizes a human rights corpus that refers to the peoples’ right to self-determination. That right proclaimed in numerous UN resolutions 42 and confirmed in common Article 1 of the 1966 International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR) 43, considers peoples as holders of a right to freely participate in the governance of their polity and to decide their own economic, social and cultural policies. Common Article 1 identically phrased in the two covenants holds that:

1. 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.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.

The early drafts of Article 1 ICCPR recognized that the right of peoples to self-determination also included a reference to permanent sovereignty over their natural wealth and resources. The inclusion of a peoples’ right to PSNR was, however, strongly opposed. It was emphasized that the principle “was a dangerous concept because it would sanction unwarranted expropriation or confiscation of foreign property and would subject international agreements and arrangements to unilateral renunciation.”

Consequently, the inclusion of a right of PSNR was rejected. States nevertheless agreed on the inclusion of a paragraph in Article 1 recognizing the right of peoples to freely dispose of their natural wealth and resources and their right not to be deprived from their means of subsistence.

Despite its prominence in international law, the right of peoples to freely dispose of their natural wealth and resources - sometimes labelled as economic or natural resource self-determination - has been remarkably inconsistent in its application.

This may be explained by the conflation of two distinct topics: the human right to self-determination and the principle of state sovereignty. While in human rights law, the beneficiary of PSNR is peoples by virtue of their right to self determination, the doctrine of PSNR has evolved towards promoting the understanding that control over natural resources is reserved for States. The assertion that PSNR is an attribute of State rather than a right of the peoples is the result of an ambiguous phrasing of most documents referring to PSNR in international law which underlines the right of peoples and nations to permanent sovereignty over their natural wealth and resources but at the same time confer on States the right to exercise sovereignty. The doctrine of PSNR has evolved over the years from a rights-based to a qualified concept encompassing duties as well as rights. Those duties are framed in the interstate relationship and do not include the obligation of the State towards its population. As a consequence, the exercise of PSNR remains purely State-centric and leaves little space to define the States duties in such a way as to exercise PSNR for the well-being of the peoples. This stands in stark contrast with international human rights law which confers on peoples the right to freely dispose of natural resources vis-à-vis their State.

The negative impact of natural resources exploitation and concerns regarding the inequitable distribution of resources inside State borders, have brought several scholars to defend a revitalization of the right to control natural resources from a human rights perspective. Most advocate for revisiting the resource dimension of the right to self-determination as a means to more effectively realize human rights.

The development of indigenous peoples’ rights in international law supports the growing understanding that self determination includes the right to dispose freely of natural resources and imposes certain obligations on States. This view is supported by the Human Rights Committee which has referred several times to Article 1(2) ICCPR in relation to indigenous peoples. The reference to Article 1(2) ICCPR in the context of indigenous peoples confirms the interpretation of the right to self-determination as conferring natural resources rights to them and a correlative duty on States to respect and protect these rights. More recently, the indigenous peoples’ right to self-determination has explicitly been recognized at the international level with the UN Declaration on the Rights of Indigenous Peoples. This Declaration develops further the indigenous right to control and dispose of their natural resources and confirms the shift in emphasis when exercising sovereignty over natural resources. It imposes and clarifies a State duty to respect, protect, and promote the interests of indigenous peoples in natural resources exploitation.

Brief History into “Permanent Sovereignty over Natural Resources”

The General Assembly adopted resolution 1803 (XVII) on the “Permanent Sovereignty over Natural Resources” on 14 December 1962 by 87 votes in favour to 2 against, with 12 abstentions. The resolution had resulted from the General Assembly’s focus on, firstly, the promotion and financing of economic development in under-developed countries and, secondly, in connection with the right of peoples to self-determination in the draft international covenants on human rights.

In 1952, the General Assembly requested the Commission on Human Rights to prepare recommendations concerning international respect for the right of peoples to self-determination. The Commission on Human Rights recommended the establishment of a commission to conduct a full survey of the right of peoples and nations to permanent sovereignty over their natural wealth and resources, having noted that this right formed a “basic constituent of the right to self-determination”. In accordance with this recommendation, the General Assembly established the United Nations Commission on Permanent Sovereignty over Natural Resources on 12 December 1958 under resolution 1314 (XIII). In 1961, this Commission adopted a draft resolution outlining principles, concerning permanent sovereignty over natural resources. Following consideration of this draft resolution by the Economic and Social Council and the Second Committee of the General Assembly, the General Assembly adopted resolution 1803 (XVII).

Resolution 1803 (XVII) provides that States and international organizations shall strictly and conscientiously respect the sovereignty of peoples and nations over their natural wealth and resources in accordance with the Charter of the United Nations and the principles contained in the resolution. These principles are set out in eight articles concerning, inter alia, the exploration, development and disposition of natural resources, nationalization and expropriation, foreign investment, the sharing of profits, and other related issues.

Permanent Sovereignty over Natural Resources

•Each state has exclusive jurisdiction within its territory and people to adopt laws (legislative sovereignty), enforce them, administer the territory, judge disputes that arise therein, exclude other states from exercising sovereign rights (unless agreed on by contract)

•Natural Resources/economic principle

•Conflict of interest between capital exporting and capital importing nations

• Focus on natural resource management, UN Resolution 1803 (1962): “the right of peoples and nations to permanent sovereignty must be exercised in the interest of their national development and of the well-being of the people of the State concerned”, “The exploration, development and disposition of such resources as well as the import of the foreign capital required for these purposes, should be in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable”; “inherent and overriding right of a state to control the exploitation and the use of its natural resources”

Rights under the Principle

– to dispose freely of the natural resource

– to freely explore and exploit natural resources

– to regain effective control and to compensation for damage

– to use natural resources for national development

– to manage natural resources pursuant to national environmental policy

– to an equitable share in benefits of transboundary natural resources

– to regulate foreign investment

– to expropriate or nationalize foreign investment (right to determine the conditions of nationalization and the amount of compensation)

Duties under the Principle:

• Exercise permanent sovereignty over natural resources for national development and the well-being of the people (UN Res. 1803/XVII, 1962)

• Respect the rights and interests of indigenous people

• Equitable sharing of trans-boundary natural resources

Further Reading/References:

● www.un.org/ga/61/second/item40summary.shtml

● www.un.org/press/en/2015/gaef3439.doc.htm

● repository.un.org/handle/11176/152561

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www.unwatch.org/wp.../11/Permanent-sovereignty-in-OPT-EJ-and-Golan-2nd.pdf

● www.ohchr.org › OHCHR › English › Professional Interest

www.securitycouncilreport.org/atf/cf/.../Golan%20Heights%20A%2065%20542.pdf

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www.rug.nl/research/portal/files/3265507/h5.pdf

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https://unispal.un.org/pdfs/AAC183L2Add36.pdf

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www.palestine-studies.org/sites/default/files/jps-articles/2537178.pdf

https://www.icc-cpi.int/.../OTPErrolMendesNewSTATEHOODANDPALESTINEFOR

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...

A brief glimpse:

www.iceland.is/iceland-abroad/.../hrc28-item7-self-determination-a_hrc_28_l32.pdf

General Assembly resolution 1803 (XVII) of 14 December 1962, "Permanent sovereignty over natural resources"

The General Assembly,

Recalling its resolutions 523 (VI) of 12 January 1952 and 626 (VII) of 21 December 1952,

Bearing in mind its resolution 1314 (XIII) of 12 December 1958, by which it established the Commission on Permanent Sovereignty over Natural Resources and instructed it to conduct a full survey of the status of permanent sovereignty over natural wealth and resources as a basic constituent of the right to self-determination, with recommendations, where necessary, for its strengthening, and decided further that, in the conduct of the full survey of the status of the permanent sovereignty of peoples and nations over their natural wealth and resources, due regard should be paid to the rights and duties of States under international law and to the importance of encouraging international co-operation in the economic development of developing countries,

Bearing in mind its resolution 1515 (XV) of 15 December 1960, in which it recommended that the sovereign right of every State to dispose of its wealth and its natural resources should be respected,

Considering that any measure in this respect must be based on the recognition of the inalienable right of all States freely to dispose of their natural wealth and resources in accordance with their national interests, and on respect for the economic independence of States,

Considering that nothing in paragraph 4 below in any way prejudices the position of any Member State on any aspect of the question of the rights and obligations of successor States and Governments in respect of property acquired before the accession to complete sovereignty of countries formerly under colonial rule,

Noting that the subject of succession of States and Governments is being examined as a matter of priority by the International Law Commission,

Considering that it is desirable to promote international co-operation for the economic development of developing countries, and that economic and financial agreements between the developed and the developing countries must be based on the principles of equality and of the right of peoples and nations to self-determination,

Considering that the provision of economic and technical assistance, loans and increased foreign investment must not be subject to conditions which conflict with the interests of the recipient State,

Considering the benefits to be derived from exchanges of technical and scientific information likely to promote the development and use of such resources and wealth, and the important part which the United Nations and other international organizations are called upon to play in that connection,

Attaching particular importance to the question of promoting the economic development of developing countries and securing their economic independence,

Noting that the creation and strengthening of the inalienable sovereignty of States over their natural wealth and resources reinforces their economic independence,

Desiring that there should be further consideration by the United Nations of the subject of permanent sovereignty over natural resources in the spirit of international co-operation in the field of economic development, particularly that of the developing countries,

I

Declares that:

1. The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned.

2. The exploration, development and disposition of such resources, as well as the import of the foreign capital required for these purposes, should be in conformity with the rules and conditions which the peoples and nations freely consider to be necessary or desirable with regard to the authorization, restriction or prohibition of such activities.

3. In cases where authorization is granted, the capital imported and the earnings on that capital shall be governed by the terms thereof, by the national legislation in force, and by international law. The profits derived must be shared in the proportions freely agreed upon, in each case, between the investors and the recipient State, due care being taken to ensure that there is no impairment, for any reason, of that State's sovereignty over its natural wealth and resources.

4. Nationalization, expropriation or requisitioning shall be based on grounds or reasons of public utility, security or the national interest which are recognized as overriding

purely individual or private interests, both domestic and foreign. In such cases the owner shall be paid appropriate compensation, in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law. In any case where the question of compensation gives rise to a controversy, the national jurisdiction of the State taking such measures shall be exhausted. However, upon agreement by sovereign States and other parties concerned, settlement of the dispute should be made through arbitration or international adjudication.

5. The free and beneficial exercise of the sovereignty of peoples and nations over their natural resources must be furthered by the mutual respect of States based on their sovereign equality.

6. International co-operation for the economic development of developing countries, whether in the form of public or private capital investments, exchange of goods and services, technical assistance, or exchange of scientific information, shall be such as to further their independent national development and shall be based upon respect for their sovereignty over their natural wealth and resources.

7. Violation of the rights of peoples and nations to sovereignty over their natural wealth and resources is contrary to the spirit and principles of the Charter of the United Nations and hinders the development of international co-operation and the maintenance of peace.

8. Foreign investment agreements freely entered into by or between sovereign States shall be observed in good faith; States and international organizations shall strictly and conscientiously respect the sovereignty of peoples and nations over their natural wealth and resources in accordance with the Charter and the principles set forth in the present resolution.