Allen Z. Hertz
Not every people has a right to full, independent statehood!
The gloomy period after the “razor thin” Federalist victory in the 1995 Quebec Secession Referendum was a tough time for Canada. Although the separatists failed to win the referendum, there was international consensus that Canada’s days were probably numbered. This pessimism was mostly based on the fact that the newly self-identified “Québécois” were clearly “a people,” and a mistaken belief that, under the doctrine of the self-determination of peoples, the Québécois would have a solid right to a fully independent State, if that is what they wanted—for example, as demonstrated by a “50% plus one” vote in a future secession referendum.
In those dark days, the Chrétien government sought help from a group of distinguished international lawyers from a variety of countries. Their clear conclusion was that the newborn Québécois people did not have an unqualified right to break up Canada. They said that the Québécois already exercised their self-determination right via full and free participation in the existing constitutional and democratic structure of the Canadian Federal State. This international conclusion caused consternation among separatists. They had falsely imagined that, under public international law, every people has an unqualified self-determination right to opt for full, independent statehood.
Moral and legal preconditions for full, independent statehood
Left liberals and so many others mistakenly imagine that the newborn “Palestinian” people has an unqualified self-determination right to full, independent statehood. However, the real moral and legal truth is that the doctrine of the self-determination of peoples cannot justify a fully independent State for Palestinians, without regard to compelling moral and legal preconditions.
Specifically, the Palestinians do not have a right to full, independent statehood for a flagrantly immoral and illegal purpose. Who says this? John Rawls (1921-2002), the greatest American legal philosopher of the 20th century. In The Law of Peoples (1993), Rawls says a nascent people’s right to national self-determination is neither absolute nor sufficient to justify a morally repugnant purpose: “The right to independence, and equally the right to self-determination, hold only within certain limits… Thus, no people has the right to self-determination, or a right to secession, at the expense of subjugating another people.” Even more so, no people has the right to self-determination for the purpose of annihilating another people. Thus, the newborn “Palestinian” people is morally and legally disqualified from full, independent statehood, if sought for the immoral and unlawful purpose of destroying Israel and killing the close to seven million Jews there.
Aboriginal Rights of the Jewish People
A lot rests on the fact that the Jewish people is historically well and truly the aboriginal people between the Jordan River and the Mediterranean Sea. Apart from anything else, the Jewish People has aboriginal rights in its ancestral homeland. What are these millennial aboriginal rights that Jews have persistently exercised for at least two thousand years? Firstly, the right of entry. Secondly, the right of pilgrimage to visit holy places. Thirdly, the right of settlement.
Palestinians have no right to wage a war of national liberation against Jews, because today Jews are “fair and square” the majority between the Mediterranean Sea and the Jordan River. There never was anything illegitimate or colonialist about Jewish settlement in Eretz Yisrael. Between 1917 and 1924, the millennial Jewish right of settlement—specifically between the Jordan River and the Mediterranean Sea—was internationally recognized in a series of declarations, resolutions, and treaties, with legal effect that survives today. Pertinent treaties are the premier source of public international law.
In the immediate post-WW2 era, the United States and the Soviet Union recognized the urgent need for Jewish refugees to go to Palestine. Quickly getting one hundred thousand Jewish refugees into their ancestral homeland was the principal political rationale for creating the United Nations Special Committee on Palestine (UNSCOP). To eliminate barriers to Jewish immigration and settlement, the UNSCOP Report (September 3, 1947) suggested trisecting Mandate Palestine into three proposed jurisdictions—an internationally governed Corpus Separatum of Jerusalem, a Jewish State, and an Arab State.
This UNSCOP recommendation was endorsed by General Assembly Resolution 181 of November 29, 1947. This resolution explicitly called for immediately opening the door to mass Jewish immigration—at the very least, into the proposed territory of the suggested Jewish State, but also eventually into the proposed territory of the suggested Jerusalem Corpus Separatum. These General Assembly recommendations were enthusiastically welcomed by Jews, but frustrated mostly due to stubborn non-cooperation by the United Kingdom (UK) which governed Palestine. Moreover, the trisection proposals were bitterly condemned by Arabs, both locally and generally. The UK unilaterally abandoned sovereignty on May 15, 1948.
Let there be no confusion! With respect to Jewish settlement between the Jordan River and the Mediterranean Sea, there is no way that Jews could have lost their millennial aboriginal rights and their 20th-century treaty rights, just because the Hashemite Kingdom of Jordan twice volunteered to launch unlawful wars of aggression, in flagrant violation of the UN Charter. The first unprovoked Jordanian attack was on May 15, 1948. Despite urgent Jerusalem pleas to keep the peace, Jordan attacked a second time, on June 5, 1967.
What about the newborn “Palestinian” People?
After the 1967 Six-Day War, a particular Arab population, for the very first time, came to commonly self-identify with the distinct name “Palestinian.” To the extent that this particular Arab population was then living between the Jordan River and the Mediterranean Sea, this newly minted “Palestinian” people can be deemed “indigenous”—namely, a new people born in the land. This ethnogenesis occurred in the second half of the 20th century. But, rebranding themselves as “Palestinian” does not make them “aboriginal.” Nor does it render them today’s majority between the Jordan River and the Mediterranean Sea.
The Palestinian People lacks a right to full, independent Statehood!
The legal reasoning of John Rawls dictates that a newborn people cannot rely upon the doctrine of self-determination to claim full, independent statehood, for an immoral and unlawful purpose. Thus, the Palestinians cannot invoke the doctrine of the self-determination of peoples to claim full, independent statehood, for the unlawful and immoral purpose of annihilating the aboriginal Jewish people there.
Between the Jordan River and the Mediterranean Sea, the Jewish people and the State of Israel enjoy clear historical priority. The aboriginal Jewish people has a moral and legal right to life. Jews have the right to live safely in their ancestral homeland. There, self-identified “Jews” have lived, in greater or lesser numbers, continuously for three thousand years. The right to life is implemented and guaranteed via the right to self-defence—juridically and politically, nowhere more salient than in the dangerous and blood-soaked Mideast. Palestinians also have a right to life, but certainly no right to full, independent statehood, for the purpose of enhancing their ability to kill Jews.
The key point we derive from John Rawls might be irrelevant, if practice under the UN Charter actually lived up to its bold claim to abolish violent aggression. But the exact contrary is true. Increasingly, the international use of force stubbornly persists in the harsh reality of the world of States. Thus, we cannot accept as moral or lawful that the newborn Palestinian people, in Eretz Yisrael, has a right to full, independent statehood, as a steppingstone towards destroying the aboriginal Jewish people there.
Allen Z. Hertz was senior advisor in the Privy Council Office serving Canada’s Prime Minister and the federal cabinet, including with respect to aboriginal issues. He formerly worked in Canada’s Foreign Affairs Department and earlier taught history and law at universities in New York, Montreal, Toronto and Hong Kong. He studied European history and languages at McGill University (B.A.) and then East European and Ottoman history at Columbia University (M.A., Ph.D.). He also has international law degrees from Cambridge University (LL.B.) and the University of Toronto (LL.M.).
