Israel’s Legal Rights in the West Bank

Michael I. Krauss, professor at George Mason University School of Law, and J. Peter Pham, director of the Nelson Institute for International and Public Affairs at James Madison University have an important article in the July issue of COMMENTARY, entitled “Why Israel is Free to Set Its Own Borders.” (Access is available only to subscribers, but the article itself is reason enough to subscribe).

Krauss and Pham, who are both academic fellows of the Foundation for the Defense of Democracies, succinctly summarize the history and legal principles applicable to the West Bank:

With respect to Jewish settlement on the West Bank, the first document of any legal

consequence dates from the San Remo Conference of 1920, where the victorious allied powers of World War I assigned the League of Nations mandate for Palestine to Great Britain. In doing so, they recognized, in the words of the mandate, “the historical connection of the Jewish people with Palestine” and the “grounds for constituting their national home in that country.” Article 6 of the document even “encouraged close settlement by Jews on the land,” land very much including the modern West Bank.

Though the League of Nations ceased to exist after World War II, the established right of Jews to live in the territories of Palestine remained in force. When the United Nations was created in 1946, its charter specifically preserved the existing mandates of the League. A year later, in Resolution 181, the UN, facing Great Britain’s withdrawal from its mandate, recommended the partition of Palestine. Though the resolution, like all actions of the General Assembly, lacked legislative authority — and thus did not vest territorial rights in the region’s Jews or Arabs — it did express the wishes of the international community.

Or, at any rate, most of the international community.  For partition of Palestine was rejected from the start by the Arab states. As Israel prepared to claim its independence, the forces of Egypt, Iraq, Lebanon, Syria, and Saudi Arabia made ready to invade, hoping to strangle the Jewish state in its cradle. Though this act of aggression failed, it did result in Jordan’s forcible acquisition of the West Bank, in direct violation of the UN partition resolution and of the UN Charter. Jordan went so far as to purport to have annexed the area, but between 1949 and 1967, only two UN member states (Great Britain and Pakistan) recognized its sovereignty there. . . . 

What did all this mean for the West Bank’s legal status? According to Sir Elihu Lauterpacht, editor of Oppenheim’s International Law, one of the field’s authoritative reference works, no state had sovereignty over the West Bank at the onset of the 1948-49 war. Jordan certainly could not then lay legitimate claim to the territory after acquiring it through armed aggression. Nor could the UN, since its partition proposal was merely hortatory — a recommendation — and in any event the organization’s charter contains no authorization for it to assume territorial sovereignty anywhere. In these circumstances, Lauterpacht concludes, the British withdrawal from the territory of the mandate resulted in a lapse or vacancy of internationally recognized sovereignty. The West Bank was, in legal jargon, res nullius: a thing belonging to no state. In such a case, sovereignty in international law may be acquired by any state in a position to assert effective and stable control without resort to unlawful means — a situation that would not exist until 1967.

It was with the Six-Day war of 1967 that Israel first came into possession of the West Bank, bringing down upon itself the now familiar charge of being an illegal “occupier” there. But a charge does not acquire moral or legal force simply through repetition over time, even if such repetition establishes it as conventional wisdom. Like the notion that Jordan or the UN or some other entity held valid title to the West Bank after 1949, the related notion that Israel’s presence in the territory constitutes an “occupation” is utterly specious.

Krauss and Pham then summarize the rights Israel obtained as a result of a defensive war, the legislative history of UNSC Resolution 242, and the legal effect of Israel’s decades-long possession of the West Bank, and conclude that Israel has every legal right to stay, or withdraw, as it sees fit:

None of this is to suggest that Israel’s legal and historical claims to sovereignty in the West Bank require it to remain there. But neither is it required to consult either the Palestinian Arabs or the self-appointed representatives of the “international community” if it decides to withdraw from some territory and determine its own borders. . . .  If it chooses to do so, [Israel] has every legal right to act alone.

Also worth reading:  Krauss and Pham’s June 29 article on the new “implicit recognition” document between Hamas and Fatah:  “The Non-Recognition ‘Recognition’.”