Status of Settlements in International Law by Talia Einhorn

9. Conclusions

  1. Israel’s position that Judea and Samaria (the West Bank) are not “occupied territories” under international law, since they were not taken from any foreign sovereign power, is well-founded. Even though Israel has not actually annexed those territories and has not applied its sovereignty to them, it has a priority claim of right to sovereignty over them, which prevails over any Palestinian or Arab adverse claim. According to a French proverb, Adieu le passé, c’est aussi adieu la posterité [to bid farewell to the past is also to bid farewell to posterity]. The Jewish people have not forgotten their past.
  2. The claim that the Palestinians have a right to an independent state in all areas of Judea, Samaria and Gaza (Yesha), while Jewish settlement in Yesha is prohibited, has no basis in international law. According to international law, Israel does not have to agree to the establishment of a sovereign Arab state to the west of the Jordan River, nor cancel, or even freeze, their settlement by Jews.
  3. The historical connection of the Jewish people with Eretz Israel/Palestine was recognized by the international community in the British Mandate for Palestine, which granted political rights only to the Jewish people. Those rights were approved and reconfirmed in Article 80 of the United Nations Charter.
  4. United Nations resolutions are non-binding recommendations and hence devoid of legal validity. Their validity is conditional on their acceptance by the parties. Regarding the General Assembly’s Partition Plan, after Israel had declared its willingness to sign the declaration accept the obligations embedded in the resolution, whereas the Arab nations rejected it outright, the United Nations did nothing to enforce it. Consequently, it remained devoid of validity, and Israel was accepted to the UN without being required to accept the boundaries proposed in that resolution.
  5. The Security Council resolutions made with respect to the Arab-Israeli conflict are not binding on the parties, since they were made within the framework of the Council’s powers, under Chapter VI of the United Nations Charter to make recommendations to the parties with a view to a pacific settlement of the dispute. Security Council Resolutions 242 and 338 do not mandate the establishment of a separate Palestinian state in Jerusalem, Judea and Samaria, and the Gaza Strip.
  6. The Interim Agreements signed between Israel and the PLO did not settle the question of sovereignty over those territories.
  7. Israel’s unilateral withdrawal from the Gaza Strip in August-September 2005, further to the Israeli government’s Disengagement Program, did not resolve the matter of sovereignty.
  8. Upgrading the status of Palestine at the United Nations to that of a Non-Member Observer State does not affect the question of sovereignty over the territories of Yesha (Judea, Samaria and the Gaza Strip).
  9. The Advisory Opinion of the International Court of Justice also changed nothing in this matter. The Advisory Opinion was drafted on shaky foundations from both the factual and legal points of view. In any event, like any advisory opinion of the Court, it is not binding.
  10. In the existing legal situation, only a permanent status agreement can settle the issue of sovereignty in Yesha. In order to draft a permanent status agreement, it is necessary to know who the Palestinians that are party to that agreement are – firstly, whether their popular support is given to a representation by Hamas, by the PLO, or by some other representation, and secondly, whether the agreement will cover only residents of Yesha, or will include, as specified in the Palestinian National Charter, all generations of descendants of Palestinian parentage, wherever they may be located today, regardless of whether they have acquired citizenship of other countries, and regardless of the question of which side of the Green Line they live on. These questions must be answered in order to assess the feasibility of signing an agreement at all, and to determine whether the territory of the Palestinian state must include also the land to the east of the Jordan River, which constituted the majority (ca. 76 percent) of the land allocated originally to the British Mandate for Palestine.
  11. Israel has the right and duty to defend itself, its civilians and its residents. The dangers threatening Israel from the establishment of a Palestinian state on land to the west of the Jordan River should deter anyone, desiring and seeking a true peace, from supporting such a “solution” to the Arab-Israeli dispute, before the conditions to peaceful co-existence are met. The Oslo Accords were meant to bring about “a just, lasting and comprehensive peace.” Yet since they came into effect, Israel has witnessed not peace but violence of the worst kind since the establishment of the State of Israel. The establishment of the Palestinian Authority should serve as a guide to the grave risks posed by such an Arab state, which may eventually lead to the destruction of the Jewish state. Any agreement must take into account Israel’s need to live in peace within secure boundaries, free from threats or acts of force, as provided in Security Council Resolution 242.
  12. The preconditions for a true peace require the Palestinians to lay down their arms and renounce terror and violence; to draft a new charter to replace the Palestinian National Charter of 1968; to recognize Israel as the state of the Jewish people and put an end to incitement against it and to anti-Jewish hate propaganda. Arab democratic institutions must be established; Arab governance must become transparent and accountable; the reformed Arab legal system must respect and protect human rights and fundamental freedoms, and subject its authorities to open criticism. Private law being the charter of a free society, and private sector initiative the key to economic prosperity, they require legal rules that govern property rights, their transfer and the settlement of disputes by an independent judiciary. The rules must be transparent, stable and enforceable in a fair and efficient manner. Above all, the Palestinians must be ready for true peace and mutual respect in speech and deed. As long as these conditions are not fulfilled, the coming into effect of any agreement should be suspended on grounds of ordre public international.
  13. Until a peace treaty, concluded by the parties, comes into effect, Israel is entitled, under international law, to continue the settlement of the territories of Judea and Samaria, fulfilling the principles laid down by the League of Nations in the original Mandate Document.

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