User talk:Harlan wilkerson/The Real Meaning of the Declarations
The reason that so many UN resolutions deal with the Question of Palestine is that the UN has always had a little-known treaty relationship with Palestine that it doesn't have with any other states or regions. The UN, itself, is still legally responsible for human rights in Palestine.
- The UN Secretariat noted that the General Assembly had established a formal minority rights protection system as an integral part of UN GAR 181(II) the 'Plan For The Future Government of Palestine'. It was cataloged during a review of Minority Rights Treaties conducted in 1950: see UN Document E/CN.4/367, 7 April 1950.
- UN GAR 181(II) is also listed in the Table of Treaties, on Page xxxviii, of Self-determination and National Minorities, Oxford Monographs in International Law, Thomas D. Musgrave, Oxford University Press, 1997, ISBN 0198298986.
The modern-day Chairman-Rapporteur of the UN Working Group on Minorities subsequently advised in the late 1990s that no competent UN organ had made any decision which would extinguish the obligations under those instruments. He added that it was doubtful whether that could even be done by the United Nations. see the discussion in Justifications of Minority Protection in International Law, Athanasia Spiliopoulou Akermark, pages 119-122.
When the UN General Assembly referred the human rights questions posed by the construction of the wall to the ICJ, its resolution ES-10/14 Recalled "relevant General Assembly resolutions, including resolution 181(II) of 29 November 1947, which partitioned mandated Palestine into two States, one Arab and one Jewish" but it didn't specifically enumerate any other General Assembly resolutions at all. see the recitals in paragraph 1 of the judgment.
In the Status Quo Agreement between the Jewish Agency and the World Agudat Federation, David Ben Gurion was explaining a minimum legal requirement (not a political problem) when he said that "the establishment of the state requires the approval of the United Nations, and this will not be possible unless the state guarantees freedom of conscience for all of its citizens and makes it clear that we have no intention of establishing a theocratic state.The Jewish State will also have non-Jewish citizens - Christians and Muslims - and full equal rights for all citizens and the absence of coercion and discrimination in religious affairs or other matters clearly must be guaranteed in advance. see Status Quo Agreement and compare MKs debate protection of 'equality' in future constitution
The General Assembly has the requisite legal authority to make legally binding decisions under Article 18 of the Charter and to conclude international agreements with regard to non-self governing peoples and territories. The term "resolution" does not appear in the UN Charter. Resolutions containing trusteeship decisions are mixed legal instruments that are equal parts international treaty and constitutional conventions.
The protection of religious and minority rights has been a matter of international concern and the subject of international protection ever since the days of the Peace of Westphalia. see Essays on International Law and Organization, Leo Gross, BRILL, 1984, ISBN 0941320154, page 5
The concept of granting title to a territory on the basis of acceptance of minority rights obligations started with the Treaty of Berlin of 1872. It required that the rights of the Muslim communities of Serbia, Montenegro, and Romania be guaranteed. see Defending the Rights of Others, Carole Fink, page 37
Minority, religious, and women's rights in Palestine were placed under permanent UN guarantee and the compulsory jurisdiction of the International Court of Justice by resolution 181(II) C. Declaration, Chapters 1, 2, and 4. The new states had to acknowledge those international undertakings in a Declaration, which according to precedent was tantamount to a treaty. See International Human Rights in Context, Henry J. Steiner, Philip Alston, Ryan Goodman, Oxford University Press US, 2008, ISBN 019927942X, page 100
The UN in-turn acknowledged the declarations of both states in General Assembly Resolution (273/III and 43/177) which said "Recalling its resolutions of 29 November 1947 and 11 December 1948 and taking note of the declarations and explanations made by the representatives of the Government of Israel before the Ad Hoc Political Committee in respect of the implementation of the said resolutions" and "Recalling its resolution 181(II) of 29 November 1947, in which, inter alia, it called for the establishment of an Arab State and a Jewish State in Palestine... ...Aware of the proclamation of the State of Palestine by the Palestine National Council in line with General Assembly resolution 181 (II) and in exercise of the inalienable rights of the Palestinian people,.... & etc
At the Versailles Peace Conference the Supreme Council had established 'The Committee on New States and for The Protection of Minorities'. All the new successor states were compelled to sign minority rights treaties as a precondition of diplomatic recognition. It was agreed that although the new States had been recognized they had not been 'created' before the signatures of the final Peace Treaties. see THE JEWS AND MINORITY RIGHTS, (1898-1919), OSCAR I. JANOWSKY, COLUMBIA UNIVERSITY PRESS, 1933, page 342
French Prime Minister Clemenceau noted in an aide-memoire attached to the Polish treaty that the minority protections were consistent with diplomatic precedent:
This treaty does not constitute any fresh departure. It has for long been the established procedure of the public law of Europe that when a State is created, or when large accessions of territory are made to an established State, the joint and formal recognition of the Great Powers should be accompanied by the requirement that such States should, in the form of a binding International convention undertake to comply with certain principles of Government. In this regard I must recall for your consideration the fact that it is to the endeavors and sacrifices of the Powers in whose name I am addressing you that the Polish nation owes the recovery of its independence. It is by their decision that Polish sovereignty is being restored over the territories in question, and that the inhabitants of these territories are being incorporated into the Polish nation.... ...There rests, therefore, upon these Powers an obligation, which they cannot evade, to secure in the most permanent and solemn form guarantees for certain essential rights which will afford to the inhabitants the necessary protection, whatever changes may take place in the internal constitution of the Polish State. see Sovereignty, Stephen D. Krasner, Princeton University Press, 1999, ISBN 069100711X, page 92-93
The new treaties gave minorities the right to petition the League or UN General Assembly. see Summary of the work of the League of Nations, January 1920-March 1922, League of Nations Union, 1922, page 4 and United Nations General Assembly Resolution 181, Part I. - Future Constitution and Government of Palestine, C. Declaration When the British Mandate said that it did not prejudice the rights and political status of Jews in any other country it meant these minority rights treaties. The reason that publicly condoning or trivializing reports of racist behavior is because that's what happened in the inter-war years in cases like the BERNHEIM PETITION
An authority on international law recently noted that several international law norms developed in the inter-war years by the League of Nations are still in use today. She cited the Palestine Partition Plan as one of several post-war examples of the European public law practices of promoting regional economic unions, territorial partition, conducting plebiscites, and conditioning recognition of statehood on human rights, democracy, and minority protection guarantees. see the discussion on pages 97-98 and footnote 353 in Managing Babel: The International Legal Protection of Minorities in the Twentieth Century, Li-ann Thio, Martinus Nijhoff Publishers, 2005, ISBN 9004141987
Palestine had been liberated from the Ottoman Empire through the assistance of the Great Powers. The UN resolution contained a plan of partition, an plan for an economic union, a Minority Protection Plan, a plan for plebiscites to elect constituent assemblies, and requirements that each state adopt a democratic constitution.
The resolution stated that "the stipulations contained in the declarations are recognized as fundamental laws of State, and no law, regulation or official action shall conflict or interfere with these stipulations, nor shall any law, regulation or official action prevail over them." see http://www.yale.edu/lawweb/avalon/un/res181.htm United Nations General Assembly Resolution 181, November 29, 1947, C. Declarations Chapters 1, 2, and 4. The resolution also required that the Constitution of each State embody the rights contained in the Declaration.
Abba Eban said that the rights stipulated in section C. Declaration, chapters 1 and 2 of UN resolution 181(II) had been constitutionally embodied as the fundamental law of the state of Israel as required by the resolution. The instruments that he cited during the hearings were the Declaration of the Establishment of the State of Israel, and various cables and letters of confirmation addressed to the Secretary General. Mr. Eban also declared that Israel would not assert its domestic jurisdiction under Article 2 of the UN Charter. See The Palestine Question, Henry Cattan, page 86-87 and the verbatim record, FIFTY-FIRST MEETING, HELD AT LAKE SUCCESS, NEW YORK, ON MONDAY, 9 MAY 1949 : AD HOC POLITICAL COMMITTEE, GENERAL ASSEMBLY, 3RD SESSION, A/AC.24/SR.51, 01/01/1949. Mr. Eban's explanations and Israel's undertakings were noted in the text of General Assembly Resolution 273 (III) Admission of Israel to membership in the United Nations, 11 May 1949.
The declaration stated that the State of Israel would ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex, and guaranteed freedom of religion, conscience, language, education and culture. However, the Knesset maintains that the declaration is neither a law nor an ordinary legal document.see the The Proclamation of Independence Knesset website The Supreme Court has ruled that the guarantees were merely guiding principles, and that the declaration is not a constitutional law making a practical ruling on the upholding or nullification of various ordinances and statutes. Whenever an explicit statutory measure of the Knesset leaves no room for doubt, it is honored even if inconsistent with the principles in the Declaration of Independence. see The Declaration of the Establishment of the State of Israel Israeli Ministry of Foreign Affairs
During the US Senate Judiciary Committee hearings on the The Colonization Of The West Bank Territories By Israel in 1977. The legal status of the partition plan and the minority rights provisions were addressed by Dr W. Thomas Mallison. He stated that territory was only allocated by the UN on condition that certain duties imposed upon each state to be established in Palestine were carried out. He said the legal obligations contained in section 10(d) of part IB were particularly important. It provided that each of the states to be set up in Palestine shall have a constitution which includes provisions: "Guaranteeing to all persons equal and nondiscriminatory rights in civil, political, economic, and religious matters and the enjoyment of human rights and fundamental freedoms, including freedom of religion, language, speech and publication, education, assembly, and association." Dr. Mallison stated "In most civilized legal systems it is recognized that legal rights may only be exercised conditioned upon compliance with legal duties. The refusal of the State of Israel to comply with the nondiscriminatory requirements of the Palestine partition resolution, its main claim to title, puts in serious jeopardy its claim to legal title to the limited territory allocated to it by the resolution."
I plug this information into various articles from time to time. Anyway I hope this helps explain the amount of attention that has been given to the 1988 Declaration, the General Assembly's acknowledgment, and the pressure to draft and adopt a Palestinian Constitution. harlan (talk) 23:56, 5 August 2009 (UTC)