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Aug 11 2005

Israel’s Legal Rights and Title to Judah, Shomron and Azza

Posted by smoothstone

On the site called Israel-Arab Conflict FAQ, there is an introduction and it reads:

“Israel has been losing the media war in regards to the Israeli-Arab conflict. This simple ‘Question and Answer’ formatted document is meant to help people argue and debase Arab and Palestinian claims.”

Question #17 on the FAQ is: What are Israel’s legal rights and title to Yehuda, Shomron and Azza?

The answer to this question outlines the (at least) triple underpinning of sovereignty Israel has in Judea, Samaria, and Gaza. (In east Jerusalem, Israel has no less than a quadruple underpinning of sovereignty, since its annexation under the Jerusalem Proclamation (Extension of Municipal Boundaries) of June 28, 1967. )

Attorney Howard Grief’s original thesis is “that sovereignty over all of the Land of Israel or Palestine was vested in the Jewish People as a direct result of the adoption of the San Remo Resolution by Britain, France, Italy and Japan on April 24-25, 1920.”

The San Remo Resolution was inserted into the preamble of the Palestine Mandate and confirmed by 52 states.

This view finds support in Israeli constitutional law and the Declaration of the Establishment of the State of Israel [See Howard Grief, "A Petition to the Supreme Court of Israel Challenging the Legality of the Oslo Accords," International Journal of Statesmanship (Foundation for Constitutional Democracy), Vol. I, No. 2, Summer 1996, Part 1, Division A, Chapter 5.].

Even though the Palestine Mandate was terminated in 1948, the rights that it gave to the Jewish people to develop “close settlement” in Yehuda, Shomron and Azza remain intact. Howard Grief explains, “Under the principle of acquired legal rights, though the international instrument upon which those rights were founded did indeed expire, the rights themselves conferred on the Jewish People remained in force. This principle of international law is now codified in Article 70(1)(b) of the Vienna Convention on the Law of Treaties.”

Unlike the previous view, ignored in each of the following analyses is the interpretation of de-facto sovereignty abated during Jordan and Egypt’s occupation and reserved for the Jewish people (Cf. Alan Levine, “The Status of Sovereignty in East Jerusalem and the West Bank,” New York University Journal of International Law and Politics, Vol. 5, No. 3, Winter 1972, p.495.):

“They include: (1) The rule that would attribute sovereign title in Judea and Samaria (the West Bank) and Gaza to Israel, by virtue of the fact that Israel is the state in lawful possession of territory affected by a “sovereignty vacuum” (view of E. Lauterpacht); (2) The rule that in a situation of disputed sovereignty that state is entitled that can establish the best title thereto, a rule well recognized by the International Court of Justice; (3) The rule that a state in lawful possession of territory to which no other sovereign has a supportable claim of sovereignty is entitled to take the step of formal annexation” (Julius Stone, Israel and Palestine: Assault on the Law of Nations. The Johns Hopkins University Press, Baltimore, 1981, pp. 168-169.). The first two of these views “conclude that under international law, sovereignty is already vested in Israel” (Ibid., p. 116.).

For a comprehensive treatment of these and related issues, an excellent online resource is Israel White Paper.

One Response to “Israel’s Legal Rights and Title to Judah, Shomron and Azza”

  1. Jew With A View Says:

    Another great post :)

    I’m going to link to your blog at my own blog. And I totally agree with you that Israel is losing the media war – and has been for a long, long time.

    I wrote something about this here, if you get a minute, take a look :)
    http://emetnews.org/weblog/the_war_of_words_that_israel_must_start_winning.html

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