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Case Analysis 17 January, 2013

Settlements or Colonies: Misleading Statistics in the Occupied Territory of the de jure State of Palestine

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Basheer AlZoughbi

Basheer AlZoughbi research interests and specialization cores at public international law branches especially international human rights law, international humanitarian law (the laws of armed conflict), international criminal law, state responsibility law, and international diplomatic law. He has pursued his postgraduate studies at four different universities in the E.U and as a corollary obtained an LL.M in European Union Law (Reading-UK), M.A in Human Rights Law (Malta), M.A in International Relations Management (Milano-Italy) and a postgraduate certificate in Peace Studies (Innsbruck- Austria). He has worked with several local and international organizations, inter alia, Facilitate Global (UK) and the Applied Research Institute-Jerusalem (Palestine) and Human Rights Information and Documentation Systems, International (HURIDOCS) –Switzerland. In addition, he taught a postgraduate course on public international law at Birzeit University (Palestine) for M.A students. He has written several short papers on Legal Reflections on Count Folke Bernadotte’s Proclamation on the Exodus of Palestinian Refugees , The International Law on State Responsibility and the Exodus of Palestinian Refugees, The Legal Consequences arising from the Construction of Civilian Tramway (Light Railway) in the Occupied Section of Jerusalem , The de jure State of Palestine under Belligerent Occupation: Application for Admission to the United Nations and Deportation and Forcible Transfers under International Law.

Territories traditionally regarded as colonies were described in Chapter XI (Articles 73 and 74) of the United Nations Charter as Non-Self-Governing Territories.[1] According to Article 73e, member States must transmit statistical and other information about the Non-Self-Governing Territories for which they are responsible to the Secretary-General of the UN. The fourth of the principles given in resolution 1541 (1960) which guide mem­ber States in determining whether or not an obligation exists to transmit the information called for under Article 73e, states that "Prima facie there is an obligation to transmit information in respect of a territory which is geographically separate and is distinct ethnically and/or culturally from the country admin­istering it". However, the definition of "geographically separate" cannot be restricted to colonies located in overseas territories, as colonization can and does occur when a State colonizes a contiguous territory. In addition, the definition of a colony has traditionally included not only Non-Self-Governing Territories but other territories in colonial situations.

In United Nations resolution 2073 of 1965, Oman, which had never been placed in the category of Non-Self-Governing Territories, was considered to have the status of a colony.[2] Similarly, Algeria was never defined as a Non-Self-Governing Territory, but the General Assembly in its resolution 1573 of 1960 recognized the need to implement the right to self-determination "on the basis of respect for the unity and territorial integrity of Algeria," it being understood that Algeria was a French colony.[3] The 1967 territory of the de jure state of Palestine is also not included within the category of Non-Self-Governing Territories but still constitutes a colonial situation.

As Andrés Rigo Sureda states, "within the context of colonialism, self-determination has become a peremptory norm of international law whereby a state's title to a territory having a colonial status is void".[4] The General Assembly has gradually developed an exercise of competence to decide whether or not the people of a territory have implemented self-determination or whether or not they should implement it.[5] In this respect, therefore, the General Assembly has been actively involved in deciding whether a territory is or is not a colony, and has been concerned with situations of racial discrimination, traditional colonialism, and the use of force.[6] In its Legality of the Threat or Use of Nuclear Weapons advisory opinion, the International Court of Justice pointed out that:

"General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule."[7]

The General Assembly has affirmed that the 1967 territory of the de jure state of Palestine, which is under occupation, constitutes a colonial situation. For example, its resolution 3092 of 1973 "calls upon Israel to desist immediately from the annexation and colonization of the Arab territories occupied by it since 1967". Furthermore, resolution 3525 (1975) "urges all States to refrain from any action which Israel will exploit in carrying out its policy of colonizing the occupied territories," and resolution 34/44 (1979) "reaffirms the inalienable right of the peoples of Namibia and Zimbabwe, of the Palestinian people and of all peoples under colonial and alien domination to self-determination". General Assembly resolution 1514 (XV) of 1960, entitled "Declaration on the Granting of Independence to Colonial Countries and Peoples," is applicable to the 1967 Occupied Palestinian Territory and its people; and in the preamble to resolution 34/44, the General Assembly reaffirmed the importance of the implementation of resolution 1514.[8] The 1967 occupied territory of the de jure state of Palestine thus has colonial status, because the Palestinian people have not exercised the right to self-determination, a right that it is their due to exercise. The "Declaration on the Granting of Independence to Colonial Countries and Peoples" declared that "immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations".

The question then arises, given that portions of the occupying power's civilian population have been transferred into the Occupied Palestinian Territory: should this population be considered settlers living in settlements or colonists living in colonies?

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[1] Andrés Rigo Sureda, The Evolution of the Right of Self-Determination: A Case Study of U.N. Practice (Leiden: A.W Sijthoff, 1973), 102. Colonies have also often been understood to be located across "salt water" and the "salt water theory" of colonialism interprets colonies to be located only overseas; see ibid., 105.

[2] See ibid., 62- 64.

[3] Ibid., 64.

[4] Ibid., 353.

[5] Ibid., 65.

[6] Ibid., 238.

[7] International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (1996), Paragraph 70, 226.

[8] The use of the expression "Occupied Palestinian Territory" in this paper is without prejudice to the legal fact that it is the de jure state of Palestine that is under colonial occupation.