Francis A. Boyle. Palestine, Palestinians and International Law

Arab Studies Quarterly (ASQ), Summer, 2003 by Ghada Talhami

Because of U.N. Charter Article 80 (1), the League's Covenant article 22 still survives as a matter of positive international law. This is a pivotal point, since the same article adopted in 1919, and the Treaty of Lausanne in 1923, clearly recognized all the Arab territories, including Palestine, which used to be pan of the Ottoman Empire, as provisionally independent nations. Furthermore, by accepting the Partition Resolution of 1947, Israel has also accepted a Palestinian state. When the Palestinians declared their state in 1988, based on the Partition Resolution, they were in essence bowing to reality by accepting Resolution 242, which calls for the return to the 1967 boundaries, allowing for a much smaller Palestinian territory than what was designated by the Partition Resolution. Boyle goes on to demonstrate how the Palestinians can overcome the U.S. veto in their quest for U.N. membership, and how U.N. member states can sanction Israel for refusal to withdraw from Palestinian territories. By declaring themselves a state based on all that body of international law, the Palestinians could always challenge the legality of unfavorable intervening agreements, such as the Camp David Accords, which annulled their right to self-determination.

Boyle also provides legal advice as how to deal with the Jerusalem issue by taking internationally approved steps to declare the city the capital of two states. Neither Israel nor the Palestinians, in his view, have exclusive rights to Jerusalem. He reminds readers that once the Palestinians declare their state, they have the right to defend themselves against Israeli aggression under Article 51 of the U.N. Charter, which is recognized under customary international law as authorizing states to use force in self-defense. His most penetrating remarks were those expressed in a memorandum to the Palestinian delegation to the Madrid peace conference in December of 1992, against accepting assurances by the Israelis and Americans regarding the proposed peace plan unfolding on the eve of the signing of the Oslo Declaration of Principles. He particularly cautioned the Palestinians against accepting the Camp David approach which creates a false connection between an Interim Agreement and a Final Settlement, reminding them that once they accept the first proposal, they will never make it to the final stage. When Arafat finally signed the Oslo Peace Agreement, the author attacked it as precisely the Bantustan model which he had advised Arafat against. Boyle speculates that Arafat accepted this proposed settlement in order to prove good behavior for five years and then be given a state.

This book is a must reading for all those interested in the legal background of the Palestinian-Israeli conflict. It emphasizes what most students of Middle East politics and history knew all along, namely that the Palestinian claims for a national state of their own were supported by internationally recognized principles of law. Palestinians in particular must familiarize themselves with laws that support their case and there is no better way than reading this book. However, a feeling of sad resignation inevitably descends on the reader, if for nothing else but in realization of the near total absence of the rule of law in this world. One is reminded here by a recent statement made by Iraq's representative to the U.N., Muhammad Duri, who told a reporter that as a former professor of international law, he owes his students an apology. He said to tell them there is no such thing as international law, and that he has been teaching them a lie. Boyle, of course, continues to uphold the rules of international legitimacy.