When Doc Evatt Did a Job on Palestine 3

The Question of UN Competence

This question did not interest me quite so much as the more personal one of Evatt's bias and the influences on Evatt - also I am no expert on international law. However this is, of course, the more important question in terms of legal principles. I will merely attempt to raise some of the issues and quote from some contemporary critics.

Certainly the Arabs have never accepted UN competence any more than they accepted the legality of the Balfour Declaration and the British mandate over Palestine. As the Arab states saw it, legality was subverted at each step along the road to the partition resolution. Nor were the Arabs alone. Many legal experts and diplomats agreed. Ambassador Loy Henderson, Director of the US Office of Near Eastern & African Affairs, wrote a confidential memorandum to the State Department in November 1947: "What is important is that the Arabs are losing confidence in the integrity of the United States and the sincerity of our many pronouncements that our foreign policies are based on the principles of the Charter of the United Nations." (22. Henry Cattan, Palestine & International Law, 1973, p vii)

Or international legal expert Pitman Porter, writing for the American Journal of International Law in 1948: "The United Nations has no right to dictate a solution in Palestine unless a basis for such authority is worked out, such as has not been done thus far... it might be held that the Mandate is still in force and that supervision thereof has passed to the United Nations, which is somewhat hazardous juridically. The Arabs deny the binding force of the Mandate, now or ever, as they deny the validity of the Balfour Declaration on which it was based, and again they are quite correct juridically." (23. Cattan, p 77)

Palestine was referred to the UNGA under Article 10 of the UN Charter, which empowers the UNGA to discuss questions and to make recommendatins, but does not empower the UNGA to create new states or to recommend the partitioning of a country. Decisions as to the future form of government clearly lay with the people of Palestine, if we are to take seriously Article 1 (2) of the UN Charter.

After the League of Nations was dissolved, the UN Charter became the paramount instrument of international law. At the San Francisco Conference which framed the Charter, Evatt had been happy to support the inclusion of the phrase "based on respect for the principle of equal rights and self-determination of peoples" as a basis for Article 1(2) of the Charter. (24. Hassan bin Tallal, Palestinian Self-Determination, 1981, p 81) In spite of some argument over obscurities in the formula, subsequent practice has treated self-determination as a right, and of course it was later enshrined in the two Covenants of 1966.

Cattan has written: "In accordance with the principle of self-determination of peoples recognised by the Charter, the people of Palestine were entitled to affirm their national identity and to preserve the integrity of their territory. The carving out of a substantial area of Palestine for the creation of a Jewish state and the subjection of part of the original inhabitants to its dominion was a patent violation of this principle." (24. p 79)

Evatt himself had previously spoken out in support of the principle of self-determination in 1945, in support of the case for Indonesian independence from Dutch rule. He then stated: "Political aspirations of peoples who are fit for self-government... Not only have the sympathy of the vast majority of the peoples of the democracies but the Charter of the United Nations recognises the legitimacy of the claim for Self-Government... and imposes on the present Nations a sacred trust to assist them." (25. Renouf, p 167)

There was never an attempt to argue that the Palestinian population of 1947 was unfit for self-government and in fact the old Class A Mandate which the British operated gave Palestine "provisional recognition" as an "independent nation."

Obviously the inhabitants of Palestine in 1947 should have decided by referendum which for of government they would choose to live under- there is no other way to implement the principle of self-determination. It is inconceivable that Evatt could have been unaware of the ways in which the partition resolution circumvented the very principles espoused by international law and by himself personally. The case of Palestine was a complex one, admittedly- for all manner of reasons. Therefore - by way of introduction to the final section - it seems all the more strange that the matter never went before the highest level of authority of the UNO- the body set up to deliberate on precisely such important problems of international law- the International Court of Justice (ICJ).

Next installment: Failure of the Special Committee to Refer to the ICJ