Western Sahara, the Frente Polisario, and ‘the people’

In 2016, the Court of Justice of the European Union (CJEU) ruled in Polisario Front that under established treaty law principles, EU-Morocco agricultural trade agreements cannot apply to the Moroccan-controlled Western Sahara without the consent of ‘the people of Western Sahara’. Building on that decision, the CJEU ruled earlier this year in Western Sahara Campaign UK that the same principle applied to the EU-Morocco fisheries agreement. In the latter decision, the CJEU additionally justified its holding on Article 3(5) of the Treaty on European Union (TEU), which states that, ‘[i]n its relations with the wider world, the Union shall … contribute to … the strict observance and the development of international law, including respect for the principles of the United Nations Charter.’ Rather than a prohibition, the Court applied Article 3(5) TEU as an interpretive canon requiring EU external action to be construed in conformity with basic norms of international law. By prioritizing the interpretive side of Article 3(5) TEU’s interpretative-prohibitive function, it has been observed, the CJEU ‘ensured continuity in international legal relationships and showed some deference to the EU’s ‘political branches’ in the conduct of its external action.’

Yet, in the case of Western Sahara, the CJEU’s decisions in Polisario Front and Western Sahara Campaign have not led to greater respect for international law in the Union’s external relations, suggesting that deference may have been misplaced. The European Commission has purported to obtain consent from ‘the people of Western Sahara’ through consultations with an opaquely-selected assortment of actors in the territory after finalizing negotiations over its latest trade agreement with Morocco. While understandable that the Commission would avoid the morass of defining ‘the people’ at a granular level, which has bedevilled the UN mission for the referendum in Western Sahara, MINURSO, the Commission has completely elided over the distinction between Sahrawi and Moroccan interests in the territory. Its agnosticism on the identity of ‘the people’, which it can only maintain through its questionable position on Western Sahara’s legal status, validates the effective integration of the territory into Morocco and thereby fails to show respect for Saharan self-determination.

The CJEU bears some responsibility for this state of affairs. In Polisario Front, the Court relied on treaty law principles to avoid resolving the thornier international law questions of defining ‘the people’, what constitutes its consent, and how it may obtained, an approach I would characterise as judicial minimalism. The CJEU ruled that the international law principle of the relative effect of treaties, under which a treaty must neither impose obligations nor confer rights on third States or non-State subjects of international law without their consent, prohibits the application of EU-Morocco trade agreements to Western Sahara, as a separate territory entitled to decolonisation and independence under General Assembly resolution 1514 (XV), without the consent of its ‘people’. By concluding that the agreements could not apply, as a matter of international law, to Western Sahara without such consent, the CJEU avoided deciding whether the Frente Polisario had standing to challenge the agreements’ validity. The Court thereby avoided considering the Polisario’s relationship, as the recognized national liberation movement of the Sahrawi people, to the territory of Western Sahara and ‘the people’.

Had the CJEU addressed these thornier questions, as the General Court and Advocate General Wathalet did, it might have given real effect to its finding of a consent requirement. Instead, while its minimalist approach was certainly appealing in the abstract, it was destined to fall short in practice given the established leanings of the EU’s political organs, which are reflected in the Commission’s legal position on the Moroccan presence in Western Sahara.

The Commission has consistently defined Western Sahara as a Non-Self Governing Territory (NSGT) with Morocco as its de facto administering power. The unsubstantiated assumption underlying this position is that a territory cannot be both non-self-governing and occupied. The Commission has justified this position on the absence of Security Council resolutions expressly declaring the Moroccan presence an occupation, much as the UN Legal Counsel’s opinion on the exploitation of Saharan natural resources presupposed Morocco an administering power rather than an occupying power for admittedly political reasons. The Commission’s justification is legally dubious: ‘occupation’ is not a magic word but refers to a legal situation which the Security Council has recognized, starting with resolution 380 (1975), calling upon Morocco to withdraw all participants in its ‘Green March’ on Western Sahara, including tens of thousands of its armed forces; and countless resolutions recognizing that Moroccan forces yield effective control. Further, the lack of a Council resolution expressly recognizing Western Sahara as occupied is largely down to France, which has supported Morocco’s autonomy proposals and threatened to veto any Security Council resolution favouring the independence of Western Sahara. In contrast, the Polisario claims that Western Sahara is an NSGT, with Spain remaining the de jure administrating power despite its unilateral withdrawal, under Moroccan occupation. Relevant General Assembly resolutions support this position.

A coalition of 89 Sahrawi organisations which boycotted the consultations argue that the Polisario Front ruling prohibits the EU from entering agreements covering Western Sahara ‘without the consent of the Saharawi people through its legitimate representative, the Frente Polisario.’ In contrast, the EEAS claims to have met its burden through meetings with a Polisario representative, civil society organisations that are ‘very supportive of Polisario,’ and ‘politically neutral’ organisations, as well as businesses, including Moroccan state-owned enterprises, operating in Western Sahara.

Whether the Commission’s consultations are sufficient to ascertain the will of ‘the people’ arguably depends on the role ascribed to the Polisario – essentially the standing inquiry that the General Court and Advocate General addressed, and the CJEU avoided, in Polisario Front. As the Advocate General noted, the standing in EU courts of a UN-recognized representative of the people of a non-self-governing territory posed a question of first impression for the CJEU.

The EU Council argued that the Polisario lacks capacity to initiate proceedings under Article 263(4) TFEU because it is not legally constituted under the laws of any State and lacked ‘direct and individual concern’ in the Council decision adopting the relevant EU-Morocco trade agreement. The Polisario countered that as the ‘incarnation of the sovereignty of the Sahrawi people’, its existence could not depend on the internal law of another State. Rather, the Polisario claimed ‘the international legal personality granted to national liberation movements under international law’ based on UN recognition as representative of the Sahrawi people in relation to the Western Sahara question, its internationally-recognized peace agreement with Mauritania; and on the EU plane, European Parliament resolutions urging it and Morocco to cooperate fully with the UN and ICRC. The General Court accepted that in the ‘very specific circumstances' presented, the Polisario should be regarded as a legal person under Article 263(4) TFEU; and that the legal effects of the Council decision directly and individually concerned the Polisario, as the other participant in UN-led negotiations to determine Western Sahara’s final status.

The Advocate General concluded that the Polisario has legal capacity but lacked direct and individual concern in the Council decision. Significantly, he rejected an ‘absolute identity between the territory and person … who makes claims over it’ and argued that, by General Assembly resolution 34/37 (1979), the UN had recognized the Polisario as the Sahrawi people’s representative only in the Western Sahara political process, without giving the Polisario the right or obligation to defend the commercial interests of Western Sahara. Because Spain remains the de jure administering power in Western Sahara pursuant to Article 73, the Polisario was not individually concerned as it was not the only entity with capacity to represent ‘the people‘.

The Advocate General’s approach, while logical, would seem legally and practically misguided. Accepting the Polisario’s status as representative of the Sahrawi people while denying it is therefore ‘intrinsically entitled to defend’ the territorially-based interests of Western Sahara (e.g. its natural resources) runs contrary to the emergent international law principle that recognition of a ‘people’ entitled to self-determination implies a relationship with a territory, even if that ‘people’ has been expelled from the territory and replaced on it. Thus, as Konstantinos Mastorodimos has argued convincingly, the legal personality of national liberation movements derives from the ‘people’ they represent and the separate status of the colonial territory.

Additionally, by asserting that the dispute over EU-Morocco economic dealings covering Western Sahara is not part of the political process, the Advocate General took an exceedingly narrow view of what constitutes a political process toward resolving international disputes. Having found the Polisario’s international recognition limited to the UN-led political process, the Advocate General presumably understood that process only to include negotiations under the aegis of the Secretary-General’s Special Representative or Personal Envoy, or the long-delayed and now-unlikely referendum under the aegis of MINURSO. This UN-centric view of political processes is ill-suited for the emerging global governance regime generally, and ‘frozen conflicts’ such as Western Sahara in particular, which in a renewed era of Security Council deadlock, are increasingly left to ‘groups of friends’, led in this case by the US and two EU members: France (which is partly responsible for the impasse in decisive Security Council action on Western Sahara) and Spain.

Considering that the Advocate General did not examine in depth the rights and responsibilities which the UN has ascribed to various national liberation movements, his opinion was inadvisably absolute in stating that the Polisario’s role in Western Sahara ‘does not relate at all to economic and social affairs’. This, despite the fact that the Polisario exercises responsibility for economic and social affairs, through its self-proclaimed Sahrawi Arab Democratic Republic, over the roughly one-quarter of Saharan territory that it controls and in Sahrawi refugee camps in Tindouf, Algeria. Discounting the Polisario’s responsibility for the refugee population, whom MINURSO has confirmed among ‘the people’, based on their current presence outside Saharan territory is incongruent with, e.g., the Commission’s position that Turkish Cypriots are current EU citizens although outside of Republic of Cyprus government control and notwithstanding the suspension of the Union’s acquis to Northern Cyprus, the obvious differences between the Cypriot and Saharan contexts notwithstanding.   

The Advocate General’s position in this regard was all the more curious given that he recognized ‘the legal situation of territories can certainly be affected by the provisions of an international agreement, irrespective of whether those provisions produce a direct effect,’ and concluded that the application of trade agreements with Morocco to Western Sahara ‘necessarily and inevitably implies recognition’ of Moroccan sovereignty over the territory. He thereby recognized that Morocco’s economic relations with third parties pertaining to Western Sahara could have the effect of entrenching its authority over the territory, as the ICJ recognized in the Namibia advisory opinion. Yet by indulging the legal fiction that Spain, insofar as it remains the de jure administering power, alone maintains the right and obligation to represent the commercial interests of Western Sahara, the Advocate General arguably gave the EU’s political organs a legal justification for circumventing the Polisario entirely, which the Commission has nearly done in its consultative process.

Amin M Husain has illustrated that, where a democratic mandate from the ‘people’ is impossible under colonial rule or occupation, international and regional organisations have generally extended recognition to national liberation movements by examining whether they are effectively leading the liberation struggle toward independence. The Commission’s suggestion that the Polisario’s voice should be counterbalanced with ‘politically neutral’ and pro-integration organisations in ascertaining the will of ‘the people’ is, at best, in tension with the EU’s professed commitment to the political process, and at worst is nailing its pro-integration colours to the mast.

Thus the paradox: the CJEU in Polisario Front and Western Sahara Campaign cleverly vindicated the separate status of Western Sahara without having to resolve, as the General Court and Advocate General attempted to, the territory’s current status or define the relationship between the territory, the Frente Polisario, and ‘the people’. But this judicial minimalism left a vacuum that the Commission has filled in a way that undermines the Polisario’s status as representative of the Sahrawi people, risks marginalising its role in the Western Sahara political process, and calls into question the EU’s commitment to the ideal embodied in Article 3(5) TEU.

Review: Eugene Kontorovich, State Practice on Economic Dealings with Occupied Territories

[from 2015]

In State Practice on Economic Dealings with Occupied Territories, Eugene Kontorovich sets out to prove that state practice does not substantiate claims of an international law norm prohibiting third-state public or private involvement in an occupying power’s economic activities in occupied territory. Other scholars have previously considered the issue and have reached that conclusion.[1]

This conclusion rests on the fact that the international law doctrine of non-recognition of de facto regimes whose sovereignty over the territory in question is internationally denied (“nonsovereign regimes”) has multiple and widely-varying interpretations. These interpretations agree only that diplomatic or consular relations with the illegal regime are prohibited and that recognition of ministerial acts of the nonsovereign regime (records of births and deaths, marriages and divorces, and ordinary commercial transactions) is permitted. Between those two extremes, there is a wide range of public and private acts (including state-facilitated private acts) that reasonably may, or may not, be understood to imply recognition of a nonsovereign regime.

The 2013 EU funding guidelines on settlement entities and activities offer a robust interpretation of the non-recognition doctrine.[2] Under this interpretation, EU funding for Israeli entities based in the oPt or Israeli activities conducted in the oPt would constitute implied recognition of Israeli sovereignty in the oPt. Kontorovich nowhere argues that the EU’s interpretation of the non-recognition doctrine is an unreasonable one. He merely claims that international law, as defined by state practice (including the EU’s own practice towards other occupation regimes), does not compel that interpretation. 

The EU does not claim otherwise. Article 1 states that the Guidelines are meant to “ensure the respect of EU positions and commitments in conformity with international law on non-recognition by the EU” of Israeli sovereignty over the OPT.[3] The guidelines bring EU practice into line with EU policies, which policies comply with – even if not strictly compelled by – international law on non-recognition.

The Crawford legal opinion, which Kontorovich cites, endorses this flexible construction of the duty of non-recognition:

[T]he obligation [of non-recognition] has an inherent flexibility that will permit (or, at least, not expressly prohibit) the acceptance of acts which do not purport to secure or enhance territorial claims, but which as a result of their commercial, minor administrative, or “routine” character, or which are of immediate benefit to the [protected local] population, should be regarded as “untainted by the illegality of the occupation.”[4]

Crawford gives as an example of a recognizable commercial act “untainted” by the illegal Israeli regime “the sale of milk from a local settlement store (whether to settlers or Palestinian persons).”[5]  Thus, for Crawford, that the store is located within an illegally-established settlement, draws water from Palestinian sources, employs settlers, or pay taxes to the government that maintains the illegal regime does not compel non-recognition of its commercial transactions. In other words, Crawford finds no duty of non-recognition towards commercial transactions that confer  indirect, routine, or unavoidable support for the illegal regime.  

For purposes of the Guidelines, the “act” in question is not the activities of settlement enterprises, but EU funding of those activities. Applying Crawford’s definition, the question is whether EU funding to entities established or operating within the occupied territories should be regarded as “untainted” by the illegal situation due to its commercial, minor administrative, or routine character. That answer is clearly no. The EU funding instruments affected by the Guidelines cannot be said to provide “indirect, routine or unavoidable” support to Israeli entities and activities in the oPt because their purpose – harmonizing Israeli law, policy, and activities with the EU acquis – clearly implies recognition of Israeli authority in the areas covered.  For example, the EU launched in March 2013 a twinning project between Israel, Italy and Germany to harmonize European and Israeli law on rural diversification and promote agricultural tourism in Israel.   Project activities funded by the EU, implemented by the Italian and German agricultural ministries, and conducted in Israeli agricultural settlements in the Jordan Valley would clearly be seen to enhance Israeli territorial claims to those areas.  Likewise, the participation of a settlement regional council in an public-administration exchange clearly presupposes recognition of the regional council’s authority over the territory it administers. Projects of these sort would clearly implicate Article 16 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts, which holds a State (or international organization with legal personality, like the EU) responsible for aiding or assisting “with knowledge of the circumstances of the internationally wrongful act.” 

Further, one suspects that Kontorovich’s exclusive focus on state practice is a concession to the sufficiency of the opinio juris identifying non-recognition as a customary international law norm.[6]

The article also contains several misleading factual statements regarding the state practice of economic relations with other occupied territories. For example, Kontorovich claims that “neither the EU nor its member states have ever suggested that European companies should not engage in commercial activities with Turkish firms involved in the occupation of North Cyprus.” (p. 13.) He fails to mention that in 2009, the High Court of England and Wales held that customary international law, as reflected in the sovereignty and territory provisions of the Chicago Convention, prohibits the British government from licensing a Turkish carrier to operate flights from the UK to occupied Northern Cyprus.[7]

Similarly, Kontorovich claims that European companies are active in Moroccan-occupied Western Sahara “with no discouragement from their home countries.” (p. 6.) Norway, concededly an EFTA member state rather than an EU member, has long maintained an official policy discouraging Norwegian business from conducting business in Western Sahara.[8] Following that policy, the Government Pension Fund of Norway has divested from several companies based on their exploitation of natural resources in Western Sahara.[9]


[1] The most notable of these studies is the James Crawford legal opinion commissioned by the British labor union TUC, entitled Third Party Obligations with respect to Israeli Settlements in Occupied Palestinian Territories (Jan. 24, 2012) (hereinafter “Crawford Opinion”).   

[2] Guidelines on the eligibility of Israeli entities and their activities in the territory occupied by Israel since June 1967 for grants, prizes and financial instruments funded by the EU from 2014 onwards, 2013/C 205/05, 19 July 2013 (“Guidelines”).

[3] Id., art. 1.

[4] Crawford Opinion at p. 22, para. 51.

[5] Id.

[6] The opinio juris is borne out in the following instruments:

●      1949 International Law Commission Draft Declaration on the Rights and Duties of States, art. 11 (“Every state has the duty to refrain from recognizing any territorial acquisition by another State acting in violation of Article 9”);

●      1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, para. 10 (“No territorial acquisition resulting from the threat or use or force shall be recognized as legal.”);

●      General Assembly Resolution 3314 on the Definition of Aggression, art. 5, para. 3 (“No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.”); and

●      2001 International Law Commission Draft Articles on the Responsibility of States for Internationally Wrongful Acts, art. 41(2) (“No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40 [jus cogens violations], nor render aid or assistance in maintaining that situation.”).

[7] Kibris Türk Hava Yollari v. Secretary of State for Transport [2009] EWHC 1918 (Admin) (July 28, 2009).

[8] Government Pension Fund of Norway – Global, Petroleum Fund Council on Ethics,  Recommendation on exclusion from the Government’s Pension Fund’s investment universe of the company Kerr-McGee Corp., http://www.regjeringen.no/pages/1662901/KMG%20eng%2011%20april%202005.pdf (April 11, 2005), at 3 (“The [Norwegian] Ministry for Foreign Affairs has also, on several occasions, expressed the view that Norwegian companies should avoid participating in economic enterprises in this area because such involvement might be seen to make Moroccan claims on Western Sahara more legitimate.”)

[9] These companies include the US-based oil exploration firm Kerr-McGee (excluded in 2005 and reinstated in 2006 after the company discontinued the offending operations) and two phosphate producers, US-based FMC Corporation and Canadian-based Potash Corporation of Saskatchewan (excluded in 2011). 

Kurdistan and constitutional self-determination

Iraq’s Kurdistan Regional Government has scheduled a non-binding independence referendum for 25 September 2017. Among several interesting questions of international law raised by the referendum is whether Iraqi Kurdistan independence would represent an exercise of constitutional self-determination, and if so, within what boundaries that right could be exercised.

Marc Weller has observed that since the 1990s, international law has given effect to self-determination claims derived from constitutional orders that gives separate legal personality to a constituent part or parts of the state. This doctrine of constitutional self-determination developed in response to the ‘negative, disenfranchising’ effect of the classical doctrine of self-determination, which was available only to peoples seeking independence within existing colonial boundaries, but not to peoples, such as the Kurds, who opposed their integration at the point of decolonization and ‘see[k] to reply its decision.’ According to Weller, a claim of constitutional self-determination may arise through an express constitutional provision granting the right to self-determination, as with Ethiopia and Liechtenstein, or may be implied from the recognized ‘nationhood’ of a constitutionally-defined territory, as with Quebec and Scotland.[1]

The 2005 Iraqi constitution does not give regions an express right of secession. However, the constitutional order, including the special status and treatment it accords the Kurdistan region, suggests an implied constitutional self-determination status. Previously defined as a unitary state of indivisible territory[2], the 2005 constitution recognizes Iraq as a state of multiple nationalities and brought together in ‘free union.’[3]

The constitution recognizes the Kurdistan region as it has existed since 1992, including its authorities and its laws,[4] while all other regions were to be established anew in accordance with the constitutional framework. Further, the constitution requires the central government to complete the process established in the 2004 transitional administrative law to reverse the Baath regime’s ‘Arabization’ of northern Iraq, facilitated through its systematic repression of Iraq’s Kurdish and other non-Arab populations. This process specifically includes remedies for forced population transfers, including repatriation of the non-Arab population, and changes to administrative boundaries altered during the Baath era.[5] The constitution stipulates that the process should culminate by the end of 2007 with a census and referendum in Kirkuk and other territories disputed by the Kurdistan region and the central government (the boundaries of which were left to a committee to decide and remain in controversy) ‘to determine the will of their citizens’.[6]

This constitutionally-mandated remedial program, including the census and referendum, has not been implemented. In lieu of a referendum, Stefan de Mistura, then head of the UN mission in Iraq, proposed that part but not all of the Kirkuk district be incorporated into the Kurdistan Region. The Iraqi government rejected the proposal. Although the current Iraqi prime minister has said that he supports holding the referendum once the security situation allows, that’s almost certainly empty rhetoric. A vote in favor of Kirkuk’s integration into the Kurdistan region would raise the stakes of Kurdish separatism. In all likelihood, the Iraqi government will never hold the Kirkuk referendum, which all significant external stakeholders oppose, including the US, Turkey, Iran and Saudi Arabia.

Thus, the Iraqi constitutional order recognizes the ‘nationhood’ of the Kurdish population, the autonomy of the Kurdistan region,[7] and its free association in a federal Iraq. A right of constitutional self-determination within the recognized borders of the Kurdistan region might be implied on this basis.

But the Iraqi constitutional order goes further. It obligates the federal government to take measures towards restoring the pre-existing demographic character of northern Iraq, and thereafter to facilitate the internal self-determination of the citizens of the disputed territories claimed by the Kurdistan region. Effectively, the constitutional order recognizes as illegitimate the existing internal boundaries of northern Iraq for self-determination purposes and directs the federal government to reconstitute legitimate internal self-determination units. Insofar as constitutional self-determination gives effect to a domestic constitutional order on the international plane, one might argue that Kurdish territorial ambitions should not be constrained by the principle of uti possidetis unless the Iraqi government first meets its constitutional obligations towards reconstituting the Kurdish self-determination unit.  

Whether a right of constitutional self-determination extends to the disputed territories may require revisiting whether international law recognizes a right of remedial secession, a controversial proposition that the ICJ avoided in the Kosovo advisory opinion. Assuming such a doctrine exists, would the ancien regime’s persecution of Iraq’s Kurdish and other non-Arab populations, coupled with the current regime’s failure to implement agreed remedial measures, give rise to the right? If so, would the exercise of remedial secession justify commandeering the Iraqi government’s constitutional prerogative to hold the referendum? And would a referendum held while the territory is under the control of Kurdish forces (albeit with the acquiescence, at least for now, of the international community and the Iraqi government) represent a legitimate expression of self-determination?

To be continued


[1] Constitutional self-determination may also result from the effective dissolution of a federal state, as occurred in the former Yugoslavia.

[2] 1925 Iraqi constitution, art. 3.

[3] 2005 Iraqi constitution., art. 3 and preamble.

[4] Id., articles 117, 141.

[5] Id., art. 140(1). Specifically, article 140(1) requires the federal executive to fulfil the obligations set forth in the 2004 Transitional Administrative Law, namely ‘to take measures to remedy the injustice caused by the previous regime's practices in altering the demographic character of certain regions, including Kirkuk, by deporting and expelling individuals from their places of residence, forcing migration in and out of the region, settling individuals alien to the region, depriving the inhabitants of work, and correcting nationality.'

[6] Id., art. 140(2).

[7] Although Kurdish autonomy in Iraq has existed de jure since 1970, the territory of the autonomous area and the degree of autonomy ebbed and flowed with the Baathist regime's ability to 'pacify' northern Iraq. 

recognition and diplomatic protection

To date, 137 UN member states have extended recognition to the State of Palestine. Over 100 of these states recognized Palestine following the PLO’s declaration of independence in 1988, when Palestine undeniably did not satisfy the internationally-recognized criteria for statehood.

While General Assembly resolution 67/19 represented an act of collective recognition, that collective recognition did not correspond precisely with existing bilateral recognition of Palestine. Several states which voted in favor of resolution 67/19 distinguished their vote on Palestine’s UN status as a non-­member state from official recognition of Palestinian statehood. On the other hand, several states that had previously recognized Palestine but abstained from the vote on resolution 67/19 made clear that they had not rescinded that recognition. Further, several states that have not recognized Palestine maintain diplomatic relations with the PLO and host Palestinian diplomatic missions or general delegations.

Thus, it cannot be assumed that each state which has recognized Palestine would accept a claim of international protection brought by the Government of Palestine on behalf of a putative Palestinian national (whether resident in the occupied Palestinian territory or the diaspora), nor that each state which has withheld recognition would reject such a claim. As John Quigley has noted, ‘determining the actual content of any of the 100­-plus recognitions requires scrutiny of the relevant documents and analysis of the recognizing state’s conduct towards the PLO.’ 

To my knowledge, neither the Government of Palestine nor anyone else has done that research, which should be a national priority. But without knowing actual state practice, what should that practice be?   

The ILC Draft Articles on Diplomatic Protection provide that, in cases of state succession, a successor state should enact legislation on nationality without undue delay, while recognizing that it may be unrealistic or even impossible for states ‘born as a result of a turbulent process’ to enact nationality legislation at the time of their emergence. In this regard, the Commentaries to the Draft Articles note that Israel did not adopt its Nationality Law until nearly four years after its declaration of establishment. During the period between the state’s emergence and enactment of nationality legislation, the Draft Articles provide that persons having their habitual residence in the territory are presumed to have acquired the nationality of the new state on the date of such succession.  Assuming that the State of Palestine is a successor state to Mandatory Palestine, it would seem to follow that oPt Palestinians are putative nationals of the State of Palestine as of the date of its establishment, including for purposes of diplomatic and consular protection. Is is unclear whether the Government of Palestine is attempting to exercise these functions, and if so, to what effect.

With regard to stateless diaspora Palestinians, the Draft Articles limit the right to exercise diplomatic protection of stateless persons and refugees to the State in which the stateless person or refugee is ‘lawfully and habitually resident.’ Other leading instruments also require that the stateless person or refugee have a continuous residence in the protecting State. Obviously, stateless diaspora Palestinians cannot be habitual resident in Palestinian territory due to circumstances beyond the control of the Government of Palestine, as putative protecting state. The contributors to the Draft Articles on Diplomatic Protection acknowledge that ‘the requirement of both lawful residence and habitual residence sets a high threshold’ and ‘leads to a lack of effective protection for some individuals.’ This lack of effective protection is acute for stateless Palestinians, who have historically faced arbitrary revocation of their residency rights.

If Palestine is unable to assert diplomatic protection on behalf of stateless diaspora Palestinians, then this obligation falls upon the international community. Compensation claims by Palestinians resident in Kuwait at the time of the Iraqi invasion and occupation were presented to the UN Compensation Commission (UNCC), albeit inadequately, by UNRWA and UNDP with the cooperation of Arab host states.

The Syrian conflict presents the Government of Palestine with a morally-compelling opportunity to espouse diplomatic protection on behalf of diaspora Palestinians. Over 50 percent of the 560,000 registered Palestinian refugees in Syria have been displaced by the hostilities. Assuming that the conflict’s ultimate resolution includes a claims settlement process, displaced Palestinian refugees, like Syrian nationals, will have claims for forced displacement, death or personal injury, and the loss of real and personal property. The UNCC experience cautions against leaving diplomatic protection of stateless Palestinians to the international community. Under lex lata, Palestine lacks the legal capacity for diplomatic espousal with respect to stateless Palestinians. But if it has the political will, moral imperative and the lack of satisfactory options may work in Palestine’s favor. In the process, it could herald a progressive development in the law of diplomatic protection.  

occupation and the two concepts of non-recognition

In the context of occupation, the term 'non-recognition' is used to describe two discrete concepts, one broad and one narrow, which are often conflated. The broad conception postulates that because the authority of an occupying power is severely circumscribed relative to that of a sovereign, to preserve the rights of the lawful sovereign, third parties must not recognize or give effect to acts that exceed that authority. The narrow conception is that codified in Article 41(2) of the ILC Articles on State Responsibility: the duty of states not to recognize as lawful, nor render aid or assistance in maintaining, a situation created by a serious breach of a preemptory norm of international law.

Neither conception is satisfactory, in theory or in practice. The broad conception is too broad: not every ultra vires act of an occupying power can or should trigger international obligations. The narrow concept is too narrow: international obligations should not be limited to serious breaches of a handful of recognized preemptory norms.

I would argue that the inadequacy of both conceptions is attributable to the limitations of IHL in defining the legal consequences of systemic ultra vires acts.[1] The law of occupation is (for good reason) agnostic on the legality of the use of force resulting in the occupation. It applies as long as the occupying power retains effective control, irrespective of demographic or legal changes made by the occupying power in respect of the occupied territory. In terms of the protection of civilians, IHL’s virtue is that an occupying power cannot ‘shake it off’ through even the most blatant or systematic violations. But this same trait is a liability when it comes to vindicating fundamental norms of the international order perverted through occupation – the self-determination of peoples and the sovereign equality of states.

Although IHL defines the legal consequences of grave breaches (erga omnes effect), it does not define the consequences of the systemic or persistent commission of such violations. While the settlement of the occupying power’s nationals in occupied territory is a grave breach giving rise to an erga omnes duty to cooperate towards its suppression, IHL does not define the legal consequences arising once a sustained practice of establishing settlements ultimately destroys, in demographic rather than legal terms, the separate and distinct status of the occupied territory, and with it the prospect of restoring (at least external) self-determination.

Thus, IHL is not equipped to define the legal consequences of systematic ultra vires acts of the occupying power. Such acts may have enduring or even permanent consequences for the self-determination of the people of the occupied territory. As such, they would seem to implicate a recognized preemptory norm. Yet preemptory norms are defined in the first instance by their legal consequences, consequences IHL do not provide.[2] A more satisfactory conception of non-recognition thus demands either an evolution in the law of occupation or an untethering from it. 

[1] The literature on IHL's inadequacy to address prolonged and transformative occupations, and by extension conquest under the guise of occupation, is growing and includes, e.g., ICRC, Expert Meeting: Occupation and Other Forms of Administration of Foreign Territory (2012); Orna Ben-Naftali et al., “Illegal Occupation: Framing the Occupied Palestinian Territory,” 23 Berkeley J. Int’l L. 551 (2005); Aeyal Gross, The Writing on the Wall: Rethinking the International Law of Occupation (forthcoming, 2017).

[2] See Georges Abi Saab, The Uses of Article 19, 10 Euro J. Int’l L. 339, 349 (1999) (advocating for the ultimately-abandoned draft Article 19 of the Articles of State Responsibility, which would have recognized “crimes of state” (as opposed to ordinary “international delicts”) defined substantively rather than by their legal effects, on the basis that to “define jus cogens in the context of state responsibility in this substantive manner … would resolve the problem of tracing the ambit of the aggravated or triangular regime of responsibility.”)


on the UN's permanent responsibility for the question of Palestine

It is with good reason that the General Assembly annually reaffirms “the permanent responsibility of the United Nations with regard to the question of Palestine until the question is resolved in all its aspects in accordance with international law and relevant resolutions.”[1]

The Assembly’s first special session, called by the United Kingdom in April 1947, established the Special Committee on Palestine (UNSCOP) to prepare a report and submit “such proposals as it may consider appropriate for the solution of the problem of Palestine.”[2] The Special Committee report recommended that the Assembly submit eight questions to the ICJ relating to Palestine’s administration under League of Nations mandate and its potential partition or trusteeship by the United Nations, including:  

Whether the United Nations, or any of its Member States, is competent to enforce or recommend the enforcement of any proposal concerning the constitution and future government of Palestine, in particular, any plan of partition which is contrary to the wishes, or adopted without the consent of the inhabitants of Palestine.[3]

The Assembly voted against referring any of the questions and forthwith adopted the partition recommendation as Resolution 181.[4] At the time, the legal effect of the resolution split opinion,[5] but in retrospect, Resolution 181 is recognized to have been non-binding, if not ultra vires, as “it is doubtful if the UN has a capacity to convey title.”[6] Regardless, the Security Council failed to take the enforcement measures requested in Resolution 181, including a determination that “any attempt to alter by force the settlement envisaged by this resolution” constituted a threat to the peace, breach of the peace, and/or act of aggression, and the imposition of remedial measures under Articles 39 through 41 of the Charter.[7]

Writing on the Partition Plan in 1968, Nabil Elaraby, then an diplomat in the Egyptian UN mission and later an ICJ judge, remarked that “the complete dereliction by the United Nations of its duty toward the legitimate interests of Palestinians is directly responsible for the bloodshed that has distressed the area for over twenty years.”[8] It is bitterly ironic that nearly 70 years after the UN recommended Palestine’s partition, the limits of its authority to recommend, or impose, a territorial settlement in Palestine remain far from clear.       


[1] A/RES/70/15 (2015).

[2] UNGA Res. 106 (S-1), UN Doc. A/310 (1947), op. para. 6.

[3] Nabil Elaraby, Some Legal Implications of the 1947 Partition Resolution and the 1949 Armistice Agreements, 33 Law & Contemp. Probs. 97, 101-102 (1968), citing U.N. GAOR Ad Hoc Comm. on the Palestinian Question, Annex 25, at 300-01, U.N. Doc. A/AC.14/32 and Add. 1 (1947). See also Valentina Azarov, The Trickle-down Effects of Normative Power: The Role of International Courts in Advancing Palestine’s Actual Independence, 17 Palestine Y.B. Int’l L. 83, 89 (2014) (surveying proposals for ICJ referrals on the question of Palestine) .

[4] The question quoted above was defeated by a vote of 21 against, 20 in favor, with 13 abstentions. The vote on the other seven questions was 25 against, 18 in favor, 11 abstained. See Elaraby, op. cit., at 102.

[5] See James Crawford, The Creation of States in International Law (2d ed. 2006) 431 (“It was responsibly argued at the time that the resolution was binding by virtue of the Assembly’s own authority with respect to Mandates and of the referral of the Mandatory”) and 426 n. 8 (observing the view of the Soviet Union and the UN Secretary-General that Resolution 181 constituted a binding disposition of territory).

[6] Brownlie’s Principles of Public International Law (8th ed. 2012) 246; Henry Cattan, Palestine and International Law (1973) 64; Elaraby, op. cit, at 1021-03 (“the Assembly's powers according to Articles 10, 11, 12, and 14 of the Charter are only recommendatory and without binding force on Member States. Hence, the Arab states did not contravene their Charter obligations when they, responding to the will of the Palestine Arab majority, rejected the Partition Plan.”) But see James Crawford, The Creation of States in International Law (2d ed. 2006) 430 (“The view that the resolution was ultra vires derives from a general implication as to the dispositive powers of the General Assembly. However, even earlier practice suggested that United Nations organs can make binding dispositions of territory in appropriate circumstances, pursuant to a delegation of powers from States concerned or otherwise. This view has been twice reaffirmed, in the context of the Mandate system, by the International Court in the Status Opinion and the Namibia Opinion. There is no basis for treating the resolution as ultra vires.”) and 431 (“The conclusion must be that the that the partition plan, though valid, was intended as no more than a recommendation.”)

[7] UNGA Res. 181, UN Doc. A/RES/181(II) (1947), op. para. (a)-(c). See also Crawford, op. cit., at 424.

[8] Elaraby, op. cit., at 102. 

would a parameters resolution 'make' international law?

excerpts from a draft of a forthcoming law journal article: 

As recently outlined by Nathan Thrall in the New York Review of Books, a Security Council resolution recommending parameters for an Israeli-Palestinian peace agreement, whatever its impasse-breaking potential, poses a dilemma for the Palestinian side. While international law is "one of the only realms in which they once held some advantage," that advantage is strictly theoretical insofar as “the price of gaining American backing for international law would be that the US will have it rewritten in Israel’s favor” in the following ways:  

Settlements that existing Security Council resolutions call to dismantle would gain legitimacy as parts of a potential land swap. European and UN Security Council calls for a just and agreed solution to the refugee problem would be transformed into a strongly implied denial of a Palestinian right of return. And, for the first time in a Security Council resolution, the international community would offer some sort of recognition of Israel as a Jewish state, which the Quartet had previously refused to do.

A few thoughts on this matter. 

First, a parameters resolution would not “become” law in the sense of displacing general international law. The Security Council must conform with international law when acting under Chapter VI. Under article 1(1) of the Charter, the Council must exercise its responsibility under Chapter VI for the pacific settlement of disputes “in conformity with the principles of justice and international law,” while it is not so limited in discharging its responsibility under Chapter VII for preventing and removing threats to international peace and security. Only when acting under Chapter VII can the Council “alter legal obligations by fiat.” Even then, the ICJ has only provisionally recognized the Council’s authority under Chapter VII to violate general international law. 

While Resolution 242 was also adopted under Chapter VI, it is considered binding by virtue of its eventual acceptance by all relevant parties. But despite its central role in Middle East peacemaking for half a century, Resolution 242 cannot be said to have changed the law in the sense of displacing general international law. The terms of the resolution that were subsequently incorporated into Arab-Israeli peace agreements either reflected general international law (freedom of navigation through international watercourses) or were interpreted by the parties in a manner consistent with international law (complete withdrawal to internationally-recognized boundaries). 

Further, there is rule of construction against interpreting Council resolutions as lex specialis that displaces general international law. As Sean Murphy has observed, “in circumstances where the Council’s resolution is ambiguous or open-textured, it seems likely that the special rules of the resolution are meant to be applying general international law rather than modifying, overruling or setting aside that law.”

Thus, Resolution 1244 (1999) effected sweeping limitations on Serbia's exercise of sovereignty over Kosovo, denying Serbia the right to exercise its military and police powers in the territory and establishing an international administration with provisional self-governing institutions. Arguably, the Council had thereby “‘entered the field’” sufficiently so as to displace the relevant rules of general international law. Yet the ICJ rather asserted that Resolution 1244 should be “understood and applied” against the background of general international law regarding the lawfulness of declarations of independence. Because, the Court found, general international law does not prohibit unilateral declarations of independence, had the Council meant in Resolution 1244 to prohibit the Kosovar Albanians from declaring independence, it would have made that restriction explicit.

However, a resolution accepting land swaps would, in practical if not legal terms, be seen to interpret or amend Resolution 242 in Israel’s favor. While a Chapter VI resolution cannot displace general international law, arguably its effect in this instance would be to interpret (or amend) Resolution 242’s withdrawal and termination-of-belligerency provisions in light of a dispute, real or invented, expressed in prior negotiations regarding the application of these principles in the Palestinian context. Understood this way, recognition of land swaps would to some degree legitimize the Israeli position that these provisions of Resolution 242 apply differently to the occupied Palestinian territory than to the recognized states in the region at the time of 242’s adoption, such that implementation of the resolution through Israel’s peace treaties with Egypt and Jordan are nonprecedential with regard to Palestine.

Also, Palestine's inability to realize the theoretical advantage of bargaining positions aligned with international law is not simply attributable to US dominance of the peace process. The Security Council, too, has not insisted on fidelity to international law in its peacemaking efforts, even with respect to legal norms as elemental as the prohibition on the acquisition of territory by force. While that prohibition is widely recognized as a preemptory norm (ius cogens), that status and the legal consequences thereof have not factored into the Security Council’s actions. 

For example, in responding to intercommunal violence in Cyprus in 1963-64, the Council considered Article IV of the 1960 Treaty of Guarantee, wherein the United Kingdom, Greece and Turkey each reserved the unilateral right to use force to restore Cyprus’ independence, sovereignty and security. Cyprus alone asserted that Article IV violated ius cogens and thus that the Treaty was void ab initio. States supporting the Cypriot position argued only that Article IV was unlawful as a matter of general international law, with some states, including the United States and the United Kingdom, signaling their continued endorsement of the Treaty. The Council ultimately adopted Resolution 186 (1964), which references the Treaty without declaring it a violation of article 2(4) of the Charter or general international law, let alone a ius cogens violation.

The Council arguably ratified the acquisition of territory by force in Bosnia-Herzegovina by endorsing the Dayton Peace Accords in Resolution 1031 (1993). And in Resolution 1023 (1998), the Council endorsed monitoring agreements which the Federal Republic of Yugoslavia (FRY) concluded with the OSCE and NATO, respectively, after NATO mobilized for military action against the FRY without Council authorization. This threat of unlawful force would otherwise have constituted coercion and would, under Article 52 of the Vienna Convention on the Law of Treaties, have voided the agreements. The Council has thus endorsed territorial settlements imposed through the threat or use of force, notwithstanding Article 2(4) of the Charter and its supposedly preemptory character.  

A sober assessment of the trade-offs involved in the parameters resolution thus requires a honest appraisal of the Council's commitment in peacemaking efforts to give effect to the prohibition on the acquisition of territory by force.