And when I complete this posting, we still will not be done.
_______________________
A quick note aside. Trump and Bibi have met, Trump has put out his plan and Bibi has in essence accepted it although it still has to be brought to the Cabinet. Because there is too much yet floating in the air – most significantly the response of Hamas, I do not intend to address this here. There will be time, as the situation clarifies.
_______________________
In my last posting I considered the terrorist connections and the dubious history of the Palestinian Authority, all of which render it unfit to be a “state.”
In this post I consider legal aspects.
Both my last post – https://arlenefromisrael.info/the-many-fronts-israel-faces/ – and this one merit broad sharing.
~~~~~~~~~~
It may come as a surprise to some, but the recognition of “a Palestinian state” by other states does NOT confer legal sovereignty on the Palestinian Authority. That recognition is, in fact, legally irrelevant. This is according to international law, as spelled out in the Rights and Duties of States in the Montevideo Convention, 1933.
There are four specific requirements for a state codified in the Convention:
[] a permanent population
[] a defined territory
[] a government
[] the capacity to enter into relations with other states
~~~~~~~~~~
According to Louis René Beres, an emeritus professor of international law, the Palestinian Authority fails to qualify with regard to all four requirements.
https://www.jpost.com/opinion/article-868812
But what I would like to focus on is the requirement of “defined territory.” Exactly where is the Palestinian Authority?
Can we say it exists in area A of Judea & Samaria, which was designated by the Oslo Accords as an area to be administered by the PA both with regard to civil and security matters? It would seem that we cannot, because this designation was temporary, pending a final resolution to be determined by negotiations. As I described in my last posting, the PA was not willing to complete negotiations and achieve a resolution because it would have meant signing off on end of hostilities and recognition of the State of Israel.
In this map, we see Area A designated in the lighter blue-gray: it does not constitute a contiguous region. And so, in any event, it would be difficult to define a state according to the territory of Area A.
And here we come to the heart of the matter. The Palestinian Authority has been building illegally in Area C for years. We are speaking of many tens of thousands of buildings, some quite substantial. It is only recently that enforcement by the Israeli Civil Administration has become more serious and larger numbers of illegal structures are being taken down.
For more on this: https://www.regavim.org/category/battle-for-area-c/
The PA has not been doing this because there is no room for housing in Areas A or B, but because they want to establish a de facto Palestinian state according to the Fayyad plan. For a state, contiguity is necessary. That is why when Israel attempts to build anywhere in Judea & Samaria that would interfere with Arab continuity (as in E1) there is a furor raised.
And so we see, at a minimum, that the Palestinian Authority seeks ultimately to claim Judea & Samaria – over which Israel has not yet applied sovereignty – as theirs. And it seems quite clear that much of the world has been sold on this notion and embraces it eagerly.
~~~~~~~~~~
But again, we must look at both the history and the law. There has never been a Palestinian state. Not in Judea & Samaria. Not anywhere. Prior to the founding of Israel, Arabs in the area identified as part of the Arab people or part of Greater Syria, not as “Palestinians.”
~~~~~~~~~~
Judea & Samaria are at the very heart of the heritage of the Jewish people. The ancient Jewish cities mentioned in the Bible were in this area. Key examples:
Hevron, in Judea, is the second holiest city for Jews after Jerusalem. It is there that the first Jewish property in the land of Israel was acquired when Avraham purchased the Machpelah Cave as a burial site for Sarah. That purchase is described in detail in the Torah. Subsequently Abraham, Isaac, Jacob, Rebecca and Leah were buried there.
David began his reign in Hebron after the death of King Saul, and was first anointed king there. He reigned from Hevron for seven years before moving to Jerusalem.
Ancient Shilo, in Samaria, was the major Israelite place of worship before the Temple was built in Jerusalem. Joshua Ben Nun led the people there and had the Tabernacle erected, where it remained for over 300 years.
~~~~~~~~~~
The connection of the Jewish people to this land was not missed by British Prime Minister Lord Balfour, when he sent a letter on behalf of “His Majesty’s Government” in 1917 to Lord Rothschild, a “declaration of sympathy with Jewish Zionist aspirations.”
The League of Nations, when establishing the Mandate for Palestine, referred directly to the Balfour Declaration. “…the Mandatory [Britain] should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty…
“…recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.” (Emphasis added)
https://avalon.law.yale.edu/20th_century/palmanda.asp
The Mandate was assigned by the League of Nations in San Remo in 1920 – when the Balfour Declaration was transformed into a binding international treaty.
b
The Mandate then came into force on September 29, 1922, by unanimous vote of the League. This was established in international law.
The borders of the Mandate originally included what subsequently became Transjordan. (Britain, without authority to do so, cut that area from Palestine and awarded it to the Hashemite dynasty, from Saudi Arabia).
At that point, Palestine was recognized as being from the Jordan River to the Mediterranean Sea.
Let it be clearly understood, there was no differentiation between Judea & Samaria and the rest of the area that became Israel.
Nor was there any mention of Palestinian Arabs or a Palestinian state within this legal Mandate.
~~~~~~~~~~
There is a principle of customary international law called Uti Possidetis Juris that defines as the borders of a newly established state the same borders it had prior to independence. Thus, on the day Israeli independence was declared, the new state had the same borders as the Mandate.
During the War for Independence, which began immediately, Jordan illegally seized Judea & Samaria, which was renamed the “West Bank” by the Jordanians. Israel liberated Judea & Samaria in 1967. Sovereignty was not applied at that point (which many regret), but this area remained within the original defined borders of Israel.
~~~~~~~~~~
One final point made by Prof. Beres that I would like to share here.
There is a suggestion made sometimes that a Palestinian state might be established as demilitarized.
However, “A sovereign state of ‘Palestine’ could evade pre-independence security promises made to Israel, including those made in alleged good faith. Because treaties are binding only on states, any agreement between a non-state Palestinian Authority and a sovereign State of Israel would have no foreseeable effectiveness.” (Emphasis added)
~~~~~~~~~~
Yom Kippur, the holiest day on our calendar, begins Wednesday night. I do not expect to post again before this.
And so, I now extend wishes to each of you for a year of blessings, and to all of Am Yisrael.
Gmar Chatima Tova!
~~~~~~~~~~
Please, pray for all of Am Yisrael.
©Arlene Kushner. This material is produced by independent journalist Arlene Kushner. Permission is granted for it to be reproduced only with proper attribution.
