China defends Palestinian rights at ICJ
The right to attain self-determination by means of armed struggle
It was a remarkable moment, signaling the arrival of the People’s Republic of China to a position of leadership in international affairs, made all the more dramatic by its dignified presentation in occasionally faltering English, as the justices and the audience at the International Court of Justice listened in absorbed attention.
China declares that (1) the UN Charter and UN resolutions have legitimate authority in the international community of states and peoples; (2) the International Court of Justice has the jurisdiction to render an interpretation of international law on the Palestinian question, inasmuch as it is a question of debates in and resolutions by the United Nations; (3) Israel, in its occupation of the territory of Palestine since 1967, has violated numerous UN resolutions; (4) the illegal Israeli occupation of Palestinian territory makes the principle of self-determination applicable; (5) the people of Palestine, living in an illegally occupied territory, have the right to struggle for the attainment of self-determination; (6) in struggles for self-determination, all necessary means, including armed struggle, are legitimate, subject to the rules of belligerent conflict; (7) legitimate armed struggle for the attainment of self-determination is not terrorism; and (8) the international community has the duty to implement the two-state solution, which has been declared by numerous UN resolutions and international organizations, so that the peoples of Palestine and Israel can co-exist and live in harmony and peace.1
The statement on behalf of China was made by Ma Xinmin, Legal Advisor and Director-General of the Department of Treaty and Law of the Ministry of Foreign Affairs, on February 22, 2024, during the oral proceedings of the International Court of Justice with respect to a request for an advisory opinion on the question of the occupied Palestinian territory. It was the second time that China has participated in an oral proceeding before the International Court of Justice, the first being the issue of the independence of Kosovo in 2009.
Ma began his presentation by observing that the two-state solution has been continually eroded, inasmuch as UN resolutions have not been effectively implemented. The consequence is that the Palestinian people have little hope for the restoration of their legitimate rights. He further noted that China has consistently supported the just cause of the Palestinian people, and that China has repeatedly called for a permanent solution on the basis of two states.
Ma organized his presentation around three points. The first is the question of the Court’s jurisdiction. China submits that the Court has jurisdiction and has the authority to render an advisory opinion, because the United Nations has jurisdiction over the Palestinian question. China supports the Court in providing legal guidance to the United Nations on the question of Palestine.
Secondly, the question of the Palestinian people’s right to self-determination. This question is addressed in the context of what Ma described as the long-standing oppression of the Palestinian people in their struggle to create an independent state in the occupied territory.
Ma declared that the right of peoples to self-determination is a fundamental principle of international law, and it provides the legal foundation for the struggle of the Palestinian people to establish an independent state. Ma noted that Chinese Premier and Foreign Minister Zhou En-lai declared at the Bandung Conference in 1955 that the principal of the self-determination of peoples and nations is set forth in the UN Charter. Zhou maintained that the right to self-determination is a fundamental prerequisite to the full enjoyment of all human rights. Ma noted that Zhou’s declaration was incorporated into the final communique of the Bandung Conference.
Ma explained that the principle of self-determination only applies to two situations, namely, colonial domination and foreign occupation. The principle does not give an ethnic group within a sovereign state a so-called right to secession.
The principle of self-determination applies to the people of Palestine, inasmuch as it is a group residing in a territory under foreign domination. The application of the principle of self-determination to the situation of the Palestinian people has been reaffirmed in multiple UN resolutions, and it is recognized by most states and international organizations.
Ma further explained that the right to self-determination has five main aspects. (1) The right to preserve territorial integrity. (2) The right to maintain national unity. (3) The right to freely determine political status. (4) The right to freely pursue economic, cultural, and social development. (5) The right to permanent authority over natural wealth and resources. All states, Ma further observed, must refrain from any forceful action which deprives a people of its right to self-determination.
Ma maintained that in the pursuit of their right to self-determination, the peoples have the right to engage in struggles and to seek and receive support on the basis of this right. Various peoples, he observed, freed themselves from colonial rule and foreign oppression to attain independent statehood after World War II. Their practices served as convincing evidence for the right to struggle to attain self-determination.
Furthermore, numerous resolutions and international conventions have recognized the legitimacy of struggling by all necessary means to realize the right of self-determination, including armed struggle, by peoples under colonial domination or foreign occupation. Armed struggle in this context is distinguished from acts of terrorism, a distinction that is acknowledged by several international conventions. For example, the Arab Convention For The Suppression Of Terrorism of 1998, affirms “the right of peoples to combat foreign occupation and aggression by whatever means, including armed struggle, in order to liberate their territories and secure their right to self-determination and independence.” And Article 3 of the OAU Convention on the Prevention and Combating of Terrorism of 1999 states that “the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces shall not be considered as terrorist acts.”2
Ma emphasized that the use of force by any entity or individual in the name of exercising the right of self-determination outside the context of colonial domination or foreign occupation is not legitimate. Moreover, in legitimate armed struggles by peoples, all parties must refrain from engaging in acts of terrorism,
In the case of Palestine, Ma observed, the Palestinian people declared the establishment of the state of Palestine in 1988, which has been recognized by over 130 countries. Accordingly, in pursuit of its right to self-determination, the use of force by the Palestinian people to resist foreign oppression and to complete the establishment of an independent state is an inalienable right well founded in international law. At the same time, “Israel’s oppressive policies and practices throughout its prolonged occupation of Palestinian territory have severely undermined and impeded the exercise and the full realization of the Palestinian people’s right to self-determination.” These are well-documented and well-recognized facts, Ma declared.
Thirdly, there is the issue of international law in relation to the Israeli occupation of Palestinian territory, which has two dimensions, namely, the legality of the occupation and the legality of Israel’s actions during the occupation.
With respect to the first dimension, Ma maintains that the occupation itself is illegal, in that the prohibition against the acquisition of territory by force is firmly established by international law. The use of force to occupy and to maintain such occupation for the purpose of territorial acquisition, or to annex an occupied territory by force, are illegal. Therefore, Israel’s occupation has been explicitly recognized as unlawful by several UN resolutions following Israel’s occupation of the Palestinian territories in 1967.
With respect to the second dimension, the United Nations recognizes the right of self-defense of all states, and this means that an occupying power has the right to self-defense in the case of attacks in its territory. However, the occupying power must exercise this right in accordance with principles, including proportionality.
The use of armed struggle, Ma maintains, by an oppressed people in the exercise of its right to self-determination is considered as establishing an international armed conflict, which means that all parties are bound by the rules of belligerent occupation. Belligerent occupation is governed by principles, such as the principle of temporary administration, in which the occupying power exercises jurisdiction provisionally, necessary for law, order, and public life. In its temporary administration, the occupying power is obliged to respect and protect civilians and property. It should serve the interests of the people in the occupied territories and refrain from plundering the resources and property, forcefully transferring or deporting inhabitants, practicing apartheid, or adopting discriminatory legislation. Moreover, under the rules of belligerent occupation, the occupying power is bound by the principle of non-alteration of the territorial sovereignty of the occupied territory, which underscores the non-sovereign nature of belligerent occupation.
These principles indicate that Israeli practices and policies during its occupation of Palestinian territory have violated international law. Under the rules of belligerent occupation, the occupying power cannot acquire sovereignty over the territory during the occupation.
Ma concluded by reminding that fifty-seven years have passed since Israel began its occupation of Palestinian territories. “Justice has been long delayed,” he declared, “but it must not be denied.” He called upon the international community to work toward the implementation of the two-state solution, so that the peoples of Palestine and Israel can co-exist and live together in harmony and peace.
In making these declarations before the International Court of Justice in defense of Palestinian rights, China reaffirms its commitment to the right of the colonized peoples to struggle to attain self-determination, which includes, as noted above, the preservation of territorial integrity; the unhindered pursuit of economic, cultural, and social development, the most important of all human rights; and permanent authority over natural wealth and resources.
Ma’s reference to the Bandung conference shows China’s historic support for the principle of self-determination as well as her support for the struggles of Third World peoples and states for self-determination and national sovereignty, which today forms the backdrop for China’s foreign policy of promoting South-South cooperation and mutually beneficial relations among states. The Bandung Conference provided the foundation to the establishment of the Non-Aligned Movement in 1961, an international organization that today has 120 member states and that continues to reaffirm the principles of Bandung. In referring to the Bandung conference, China is strengthening the legal status of the declarations of the Non-Aligned Movement.
I have observed that in the terminology of international resolutions, the right of self-determination does not include the broader rights of neocolonized states and peoples to full and equal sovereignty in international affairs. Such rights are expressed in different terminology as the rights of nations to sovereignty, to equality, to freely decide on their political-economic-social-cultural systems, to development, to non-interference in their internal affairs, and to control over their natural resources. Like the right of self-determination, the rights of nations to equal sovereignty and to development have been reiterated in numerous international resolutions and conventions. In the case of Palestine, however, the right to self-determination applies, because Palestine is an illegally occupied territory.
At the same time, China, in reaffirming the two-states solution, is recognizing the right of the nation and people of Israel to exist and to enjoy peace, even though Israel has violated international law in its occupation of Palestine.
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This succinct summary and the commentary are based on a You Tube video of Ma’s statement, which I linked through the X account of Arnaud Bertrand (@RnaudBertrand).
The quotations from the cited documents are taken from a February 23 post in the X account of Arnaud Bertrand (@RnaudBertrand).