JUSTICE - No. 71

15 Spring 2024 Geoffrey Watson noted, the problem with this argument is that the content of the right of self-determination is indeterminate. In particular, there is little consensus on what, if any, remedy exists for impingement of a people’s right of selfdetermination . . . this variegated practice might lead one to conclude that there is no meaningful right of self-determination at all.17 Writing more recently, Malcolm Shaw explained that self-determination continues to evolve as a principle of international law. However, the precise nature and scope of the right have yet to be clearly defined. Although the UN has taken a very broad view of self-determination as a “right of all peoples,” Shaw criticized the formulation as unworkable.18 In any event, the most important legal point is that the Palestinians negotiated at Oslo for no more than the possibility of future self-determination. Antonio Cassese admits the Declaration of Principles makes no provision for “external” self-determination: [T]he determination of the international status of the Palestinian territories currently occupied by Israel will be the subject of negotiations between the democratically elected Palestinians and the Israeli authorities . . . Everything is left to the agreement of these two parties. In particular, the declaration does not spell out the possible final options: independent statehood free from any military or territorial servitudes; independent statehood subject to a set of servitudes or disabilities in favour of Israel (e.g., right of passage for Israeli troops or nationals, Israeli jurisdiction over Israeli settlements, the maintenance of Israeli military bases, the obligation for the Palestinians not to militarize certain areas, etc.); free integration into another State; or free association with another State.19 The Oslo Accords remain in full force and effect. Thus, there are no “legal consequences” arising from the absence of self-determination during the interim period, even though the interim period has lasted longer than originally contemplated. Moreover, UN Security Council Resolution 242 did not address the issue of Palestine or recognize any Palestinian right of self-determination. Occupation of the Palestinian Territories The General Assembly resolution asked the ICJ to determine the legal consequences arising from Israel’s “prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967.” The Oslo Accords and Resolution 242 once again determine the answers to this question. The Palestinians knowingly, voluntarily and willingly agreed to allow the occupation to continue until such time as a permanent status deal would be reached. The Palestinians further agreed that the settlements could remain in place pending the completion of the permanent status negotiations. Although the time taken to conclude the permanent status negotiations has run longer than originally contemplated, neither party has rescinded or revoked the Accords based on the lapse of time, or indeed on any other basis. To that end, the concept of “prolonged” occupation is unknown in international law. The Hague Regulations of 190720 and the Fourth Geneva Convention of 194921 set forth the legal framework for maintaining the status quo ante of occupied territory until such time as a peace agreement or other means of ending the occupation may be reached. However, neither instrument sets forth any time limit for occupation. Moreover, Security Council Resolution 242, which called for Israel to withdraw from territories “occupied in the recent conflict,” placed no time frame or deadline by when the withdrawal should occur. Indeed, the conditions specified in Resolution 242 for Israel’s withdrawal have not yet occurred, as Lebanon, Syria, 17. Geoffrey Watson, THE OSLO ACCORDS (Oxford; New York: Oxford University Press, 2000), 270-71. 18. Shaw, supra note 7, at 233. 19. Antonio Cassese, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL (Cambridge; New York: Cambridge Univ. Press, 1995), 239. 20. Hague Convention (IV) Respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, Second International Peace Conference, The Hague (Oct. 18, 1907). 21. Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, International Committee of the Red Cross, Geneva, 153-221 (Aug. 12, 1949).

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