THE TERRITORIAL TITLE OF THE STATE

OF ISRAL TO PALESTINE :
AN APPRAISAL IN INTERNATIONAL LAW
by

F rank L.M. VAN DE CRAEN,

Licenciaat in de R echten (UFSIA, R U G )
Licenciaat in de D iplom atieke W etenschappen (R U G )
M aster o f Laws (M cGill, M ontral)

The author wishes to express his gratitude towards several sta ff members o f
the M a x Planck Institut f r auslandisches ffentliches Recht und Vlkerrecht
in Heidelberg, where he was a guest student during the academie year
1977-1978 and where he effected the greater part o f the research fo r the present
article.

IN TRO D U C TIO N
The Camp David sum m it has again raised hopes and expectations for a
just and durable settlement o f the M iddle East probiem . However, still m ajor
questions rem ain unanswered, the newly revived and hopefully final peace
process will not only be long and difficult, b u t a succesful conclusion can only
be expected if the principal party involved, nam ely the Palestine People,
takes part in the peace negotiations.
The Governm ent o f Isral, which had up to now only com m itted itself to a
vague formula for some form o f internai self-rule (under an Israeli um brella)
in the occupied West Bank and G aza Strip (1), has now agreed to full
autonomy for these territories during a starting period o f 5 years. Howe-

(1) See e.g. C o rn u , F., la rponse dilatoire de M . Begin , le M onde, 20 June 1978, p. 1.

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FRANK L.M. VAN DE CRAEN

Isral, the G olan Heights and the Sinai, do not form part o f the subject o f this
study because they fall outside the form er m andated territory of Palestine
and do not relate to the Palestine question as such (6).

CHAPTER I. THE C O M IN G INTO BEING

OF THE STATE OF ISRAL A N D ITS CONSEQUENCES
F O R TH E ARAB PALESTINIANS
In order to offer a lgal appraisal o f Israels territorial title, we deem it,
however, first of ail necessary to briefly revisit the lgal significance o f the
birth o f the Jewish State.
A. A PROCESS O F A U TO -EM A N CIPA TIO N

The birth of Isral can the best be described by using the lgal construction
of auto-em ancipation . An examination o f the im portant events of
1947-1948 learns us that the well-known Partition Resolution, which envisaged a division of Palestine in two states a Jewish one and an Arab-Palestinian one within one economic union and with an international status for
Jerusalem, adopted by the General Assembly o f the U nited N ations on 29

(6)
U p to now it is still uncertain whether Isral will w ithdraw from the G olan Heights, this
problem has been completely left out in Cam p D avid. O n the other hand, one o f the m ajor
changes in the Israeli position has occurred vis--vis its presence in the Sinai. Isral has never
considered itself to be completely w ithout title to at least some part o f the Sinai, cf. Israels policy
on the Jewish settlemefits o f O fira (Sharm -el-Sheikh) and the Pichat Rafia area, which were
destined to rem ain perm anent Israeli settlements. Although theoretically under Egyptian sovereignty, they would be administratively connected to Isral. See T o m m e r , Y., M r Begin 's
Peace Plan, the Domeslic Reaction , the W orld Today, M arch 1978, p. 78.
This would m ean a form o f lease sine die , which would hardly be distinguishable from real
sovereignty. See also G e n d e l l , Ph. J., and S t a r k , P. G., Isra l: Conquerer, Liberator, or
Occupier within the Context o f International Law , 7 Southw. Law Rev., 1975, vol. 1, p. 225,
229-231.
Although not an affirm ation o f Israels title, a clear suggestion to that end ism ade by B l u m , Y.
Z., Secure Boundaries and Middle East Peace, Jerusalem , 1971, p. 86-87 (footnote). It has now
clearly been stated in the second accord-cadre o f C am p D avid dealing with the conclusion o f
a peace treaty between Isral and Egypt, in art. (a), th at Egypt will exercise its full sovereignty
over the entire Sinai area up to the international borders o f the form er Palestine m andated
territory. See le M onde, 20 Septem ber 1978, p. 6; N eue Z rcher Zeitung, 21 Septem ber 1978, p.
4. The future o f the Jewish settlements in the Sinai is not m entioned in this accord-cadre ,
however, it was then agreed upon by the parties that the Knesset would vote on this question
within two weeks after the signing o f the C am p D avid agreements. The gnral opinion that the
Knesset would pronounce in favour of their com plete dissolution indeed m aterialized. O n 27
September 1978 the Knesset approved by 84 to 19 with 17 abstentions th C am p D avid
agreements including the full withdraw al from the Sinai on condition o f the conclusion of a
peace treaty with Egypt. See e.g. M l l e r , C., Durchleuchtung der Camp David Dokum ente in
Isral, N eue Zrcher Zeitung, 21 Septem ber 1978, p. 3; E uropa Archiv, 25 October 1978,
Zeittafel, Isral, p. Z 189.

ISRAL AND PALESTINE

503

November 1947 (7), cannot be considered stricto sensu as the lgal basis
for the State of Isral.
Indeed, severe difficulties encountered by the U.N. organs, b e it the G e
neral Assembly, the Security Council, or even the Trusteeship Council,
combined with the self-inflicted restricted rle o f m ere peace-keeping by
the m andatory power (8), led in the spring o f 1948 to a complete im
broglio in the im plem entation process o f the U.N. independence scheme.
In extremis, when the U nited Nations was in fact faced with the British
withdrawal and renunciation of its m andatoiy responsibilities, a m inim um
compromise on basis of a m diation could be attained in the specially
convened U.N. G eneral Assembly session on the Palestine question, embodied in Resolution 186 (S-II) o f 14 May 1948. This resolution, however,
meant much more than a consenting to m diation. It would indeed tum out
to be the last act perform ed by the U nited N ations in relation to Palestine as
a m andated territory (9). Even if not explicitly stated in the Resolution, the
United Nations implicitly relinquished its responsibilities for any continuing
administration o f Palestine (10). The resuit o f ail this was that Palestine
became a terra derelicta . Indeed, the fact that any future adm inistration
was m ade virtually impossible by abolishing the only organ which could have
assumed that duty, namely the Palestine Commission; the fact that the
attitude of the U nited Nations to the future of Palestine rem ained vague and
non-committal to say the least, the best p roof for this being the appointaient
of a mediator without prcis duties; and last bu t not least the fact that the
United Nations never m ade it clear, either explicitly or implicitly, that the
territory would come under U.N. adm inistration after the British withdrawal,
an American proposai for trusteeship with the U.N. as adm inistering authority having been clearly defeated, point undubitably to a derelictio with as
resuit that a sovereignty vacuum in Palestine ensued. It was now up to the
Jewish and Arab Palestinians to fill this vacuum by proclaim ing the inde
pendence o f their respective states (11). This sovereignty vacuum only

(7) GAOR, 2nd Sess., Res. 181 (II) 29 N ovem ber 1947, (A/519), p. 131-150.
(8) It has to be clearly stated here that this policy did not m ean a rejection by the U nited
Kingdom of the U .N. Partition Resolution, see e.g. F l e c t c h e r -C o o k e , J., the United Nations
and the Birth o f Isral , 28 Int. Journal, 1972/1973, p. 612 et seq.
(9) GAOR, 2nd Spec. Sess., 1948, suppl. n r 2, Res. 186 (S-II), p. 5-6.
(10) The question can also be put here as to whether the U nited R ations was not obliged to
m aintain the international status o f Palestine. This m ust be answered in the negative. Only in the
case o f a territory not sufficiently em ancipated and n o t able to govern itself, the U nited N ations
would be compelled to assume the adm inistration as trustee . This was n o t the case with
Palestine, see e.g. S c h m id t -S ib e t h , H., die Vlkerrechtliche Problme der Entstehung des Staates
Isral, M unich University, doctoral dissertation, 1965, p. 42.
(11) See e.g. S c h m id t -S ib e t h , H., op. cit., p. 42-43; O C o n n e l l , D. P., International Law, I,
London, 1970, p. 130,445; B e r b e r , F., Lehrbuch des Vlkerrechts, I, M unich, 1975, p. 371, w here
the author correctly remarks that it was not a derelictio o f sovereignty b u t o f M andate
authority which took place. The question o f w here the sovereignty resided during the M andate
rgime has actually the best been answered by Sir M cN a ir , A. in the International Status o f S. W.

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FRANK L.M. VAN DE CRAEN

existed in the whole o f Palestine for a symbolic second, i.e. between the
termination o f the M andate and the Proclam ation of Israels independence.
After Isral came into being, the sovereignty vacuum rem ained nevertheless existent in the rest o f Palestine since no A rab Palestinian State was
established there (12).
This explains why the m ancipation o f Isral has to be depicted as one
of a special nature. The norm al process for the granting o f independence was
indeed not observed. In a norm al process o f m ancipation, the sovereignty
rights are transferred by the m other country to the colony; in the case o f a
m andated or trust territory, it is the m andatory or trustee in collaboration
with the United Nations which grants the independence. In this case,
however, Isral asserted itself its independence and was bom as a fully new
state (13). It was, as H. Schmidt-Sibeth points out, eine Em anzipation aus
eigerer M achtvollkommenheit , an auto-em ancipation (14).
The Dclaration o f the Establishment o f the State o f Isral m ust be considered stricto sensu as the lgal act by which the Jewish com m unity in
Palestine called the State o f Isral into being (15). The reference in the
Africa, Advisory Opinion, I.C.J. Reports, 1950, p. 128 at 150, where he states th a t sovereignty
over a m andated territory is in abeyence; if and w hen the inhabitants o f the territory obtain
rcognition as an independent State, sovereignty will revive and vest in the new state. See equally
B r o w n l ie , I., Principles o f Public International Law, Oxford, 1973, p. 181-182; G e r s o n , A,
Trustee-Occupant, the Lgal Status o f Israels Presence in the West Bank, 14 Harv. Int. L.J., 1973,
p. 33-35; L e v in e , A., the Status o f Sovereignty in East Jerusalem and the West Bank, 5 N.Y. Univ.
Joum . o f Int. L. and Pol., 1972, p, 490-491.
It can be argued that sovereignty in abeyance under the m andate system could be seen as a
sovereignty vacuum . However, the presence o f the m andate authority m akes such a conten
tion redundant.
(12( S c h m id t -S ib e t h , H., op. Cit., p. 73. The independence of Isral was proclaim ed some
hours before the official term ination o f the M andate, so it could not take im m ediate effect.
(13) See e.g. O C o n n e l l , D . P., op. cit., p. 130.
(14) See e.g. S c h m id t -S ib e t h , H., op. cit., p. 73; R o s e n n e , S., The Effects o f the Change o f
Sovereignty upon M unicipal Law, 27 B.Y.I.L., 1950, p. 267; K a p l a n M . and K a t z e n b a c h , N. D.,
Polilical Foundations o f International Law, London, 1961, p. 302; R p e r , E ., Rechtsfragen beider
Entstehung Israels, 18 Das Parlam ent, Beilagen, 1978, p. 20; M o s l e r H . in Strupp-Schlochauer,
Worterbuch des Vlkerrechts, III, 1962, p. 674, the coming into existence o f Isral occurred
... durch spontane H errschaftsbildung ohne Z usam m enhang m it einem bestehenden oder
untergehenden Staat .
(15) F or the textsee e.g. B a d i , J., Fundamental Laws o f the State o f Isral, New York, 1961, p.
9-10. The Supreine Court o f Isral in Ziv. v. Gubernik and Others, 2 D ecem ber 1948, and in A.
Shauki elKharbutli v. M inister o f Defence, 3 January 1949, Ann. Dig. 1948, p. 7, held i.a. th at the
Dclaration o f Independence is not a constitutional law in the light o f which the validity o f other
laws would be examined, but that it has the force o f law for the purpose o f establishing the fact of
the lgal cration o f the State.
The im portance o f the D claration o f Independence is e.g. also emphasized by the Bundesgerichtshof (Fdral Republic o f Germ any), which has said in a W iedergutm achung case :
Allgemein anerkannt sei, dass der neue Staat nach dem Auslaufen des Britischen M andats, a u f
G rund der D claration o f the Establishm ent o f the State o f Isral des Jdischen Volksrats,
vom 14 M ai 1948, am darauffolgenden Tage zur E ntstehung gelangt sei . See T o m u s c h a t , Ch.,
Deutsche Rechtsprechung in Vlkerrechtlichen Fragen, 1958-1965, Bundesgerichtshof 23 O kto
ber 1963,28 Z.A..R.V., 1968, p. 78-79.

ISRAL AND PALESTINE

505

Dclaration of Independence to the partition plan o f the U.N. General

Assembly is o f particular importance. T hat reference was o f rather a gnral
nature and m ade by way of a gesture of good-will; bu t this does not exclude
the fact that a clear commitment on the part o f Isral to fulfl its obligations as
a new state vis--vis the community o f nations was issued. It is certainly true
that there is no mention o f boundaries in the D claration (16). However, the
reference to the area o f the State of Isral m ust be presum ed to m ean the
area assigned to the Jewish State in the Partition Resolution (17). The only
possible lgal conclusion to be drawn from this process of auto-em ancipation
is the indisputable sovereign title o f Isral within the borders traced by the
United Nations partition plan.
To which extent Isral is justified in an international lgal perspective to
claim sovereign title to the other former Palestinian m andated territories
vis--vis the rights of a Palestine people to these territories, is actually the
core question to be answered in this study.

B. TH E STATUS O F T H E R E M A IN IN G PA RT O F T H E FO R M E R
PA LESTINE M A N D A TED T ER R IT O R Y :
A SO VEREIG NTY VA CU U M BUT N O T E R R A N U LL IU S .

A correct appraisal o f the juridical status o f the rem aining Palestine territory can only be m ade by the use o f the concept o f sovereignty vacuum .
This means that there was not only no state sovereignty vested in the terri
tory, but also that there was no administering authority (as for example a
trustee ) entitled at that time to exercise its powers. However, the right of
the inhabitants of such an area to sovereignty and independence does not
become extinct, it remains in suspension . In contrast, the concept of
terra nullius m ust be rejected (18), and this for the simple reason that, as I.
Brownlie puts it,
A territory inhabited by peoples not organized as a state cannot be regarded as
terra nullius susceptible to appropriation by individual states (in casu Isral o r the
A rab states) in case o f abandonm ent by the existing sovereign (or by the administering authorities under a m andate system) (19).

(16) See C a t t a n , H., Palestine and International Law, L ondon, 1976, p. 97, he states that this
was done deliberately in order not to be bound by a sim ilar dlination in the future. A proposai
to include the boundaries o f the State o f Isral in the D claration o f Independence was narrow ly
defeated in the Provisional Council of G overnm ent, see also B e N G u r io n , D., Isral, annes de
lutte, Paris, 1969, p. 49-50.
(17) See L a n d a u , J. in Attorney General v. el Turani, District C ourt o f Haifa, 21 August 1951,
I.L .R ., 1951, p. 164 at 166-167.
(18) Those favouring the terra nullius approach include e.g. S c h m id t -S ib e t h , H., op. cit.,
p. 73; R per , E., op. cit., p. 20; O C o n n e l l , D.P., op. cit., p. 445, relying here on a suggested
interpretatiori by the U.K. Attorney G eneral during the debate on the second reading o f the
Palestine Bill.
(19) B r o w n l ie , I., op. cit., p. 577-578.

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FRANK L.M. VAN DE CRAEN

A similar thesis is to be found in the Advisory Opinion of the International

Court of Justice on the W estern Sahara in which the Court held that :
State practice o f the relevant period indicates that territories inhabited by tribes
o r peoples having a social and political organization (as the A rab Palestinians had in
1948) were n ot regarded as terra nullius (20).

Needless to say that this equally applies to the present state practice.
1. The Arab and Israeli opinions on the sovereignty vacuum
The Arab Palestinians did not seem to consider the status of Palestine as
that of a sovereignty vacuum and o f course even less as that o f a terra
nullius . The spokesman for the A rab Higher Committee (A.H.C.), the
reprsentative organization o f the Palestine People, I. N akleh, declared in an
address to the Security Council i.a. :
Now that the M andate has ended, the People of Palestine consider themselves to
be an independent nation... (21).

However, a cablegram from the Secretary General of the League o f Arab

States to the Secretary G eneral o f the U nited Nations shows us how inde
pendent that Palestine nation was, we can inter alia read the following :
... now that the M andate over Palestine has corne to an end and leaving no legally
constituted authority behind to adm inister law and order in the country...

Further is subm itted that an intervention o f the League is necessary to fill

the vacuum , for the sole purpose o f restoring peace and order (22). Hence,
we can conclude from this A rab reaction after the expiry o f the M andate, that
they actually considered the area to be a vacuum (23). There were at first
even some Arab states, headed by Jordan, who conceived this vacuum as a
terra nullius , with as consquence that the area would be open for annexation. B. Boutros-Ghali informs us o f these different Arab appraisals of
Palestines status (24), diffrences which could only be settled after an
agreement was reached with Jordan (25).

(20) The Western Sahara Order o f 3 January 1975,1.C.J. Reports, 1975, p. 3 at 38.
(21) SCOR, 3rd Year, n r 66,292nd meeting, 15 M ay 1948, p. 8-9. See also C a t t a n , H ., op. cit.,
p. 125, he views Palestine in its globality (with a non-existent Isral) as a de facto independent
nation, which is o f course erroheous.
(22) SCOR, 3rd Year, suppl. for M ay 1948, Doc. S/745, p. 83-88.
(23) The A rab League incorrectly considered the whole o f Palestine to be a vacuum , not
recognizing the birth o f Isral which they regarded as a rebellion or an insurgence , se
supra (22).
(24) B o u t r o s -G h a l i , B ., la crise de la Ligue arabe, A.F.D.I., 1968, p. 111, the author
writes : Les Etats qui voulaient dcoloniser la Palestine... n taient pas daccord sur le statut du
futur E tat de la Palestine. La T ransjordanie appuye sur lIrak prconisait lannexation de la
Palestine p our tendre lempire hachm ite, lEgypte et lArabie Soudite au contraire dsiraient
une rpublique indpendante sous lautorit du grand m ufti de Jrusalem .

ISRAL AND PALESTINE

507

This theory of the Palestine sovereignty vacuum can also be found in

the writings of Israeli or pro-Israeli lgal authorities. They too draw a clear
distinction between the sovereignty vacuum and the terra nullius ,
explicitly stating that Palestine had not become a terra nullius (26).
However, by implicitly referring to the non-uninhabited status o f Palestine as
the basic reason for it non being a terra nullius , E. Lauterpacht (27), J.
Stone (28), and Y.Z. Blum (29) completely fail to elaborate on this key
element, namely the presence of inhabitants, the presence of A rab Palesti
nians. The theory of the sovereignty vacuum can only be upheld if it is
linked to the presence o f a population with a right to sovereignty in sus
pension . W hen it lacks this content as is obviously the case here such
theory not only becomes very artifcial, bu t also leads to an erroneous lgal
appraisal of the territorial status.
2. Is there really a sovereignty in suspension or did the Palestine People
loose ail rights to sovereignty ?
a. The non-proclamation o f the Palestine State because o f a ngation
o f the Arab Palestine right to self-determination ?
The Arab states and also the A rab Palestinians rejected any partition
solution for Palestine (30). The Palestinians viewed the cration o f Isral as a
Some Arab states did apparently not take into account that in D ecem ber 1945 a Palestine
nation had been adm itted to m em bership (although with restricted rights) of the League of
Arab States, see B o u t r o s - G h a l i , le gouvernement provisoire de la Rpublique algrienne et la
Ligue arabe, Rev. Egypt. D.I., 1960, p. 68 -6 9 .
(25) H a s s o u n a , H ., the League o f Arab States and Rgional Disputes, New Y ork, 1975, p.
33-41.
(26) S ee L a u t e r p a c h t , E ., Jerusalem and the H oly Places, L o n d o n 1968, p . 4 1 -4 2 . T h e a u th o r
s ta te s : ... th e s u g g e s tio n th a t th e re w a s a v a c u u m o f s o v e r e ig n ty d o e s n o t im p ly th a t P a le s tin e
b e c a m e a t th e e n d o f th e M a n d a te te rra n u lliu s ...a P a le s tin e to b e c a r v e d u p o n th e b a s is o f
first c o rn e first s e rv e d . S e e a lso B lu m , Y .Z ., the M issingReversioner, Reflections on the Status o f
Judea and Samaria, 3 Is ra l L .R ., 1968, p . 28 3 , a lth o u g h n o t im m e d ia te ly r e f e r r in g to a s o v e
re ig n ty v a c u u m , b u t r a th e r to a s o v e re ig n ty th a t m u s t b e lo c a te d s o m e w h e re , h e e q u a lly
stre sse s th e fa c t th a t n o m a n d a te d te r r ito r y c a n b e r e g a r d e d , o n th e te rm in a tio n o f th e m a n d a te
o v e r it, a s a re s n u lliu s o p e n to a c q u is itio n b y th e fir s t c o rn e r; s e e a lso S t o n e , J., N o Peace - No
War in the Middle East, S y d n e y (A u s tr.), 1969, p . 39.

Only dealing with the W est Bank and conspiciously silent on the other parts o f Palestine n o t
originally envisaged for the Jewish State, A. Gerson, op. cit., p. 4 2 -4 3 , not only rejects the notion
of terra nullius , but also o f sovereignty vacuum because sovereignty, according to the
author, resides in the A rab inhabitants. This requires the following prcision : sovereignty can
only be vested in a state, the right to sovereignty, however, can rsid in the A rab inhabitants, b ut
since this right is not exercised, since it is in suspension , there exists a sovereignty vacuum .
C o c t r e - Z i l g i e n , A., l imbroglio moyen-oriental et le droit, 73 R.G .D .I.P., 1969, p. 56, rejects for
different reasons the notion o f sovereignty vacuum . T he term ination o f the M andate, ac
cording to the author, enabled Isral to acquire sovereign title over the whole o f Palestine.
This second assertion is n ot true, let us just refer to the P roclam ation of the Independence of the
State o f Isral as the best proof to the contrary.
(2 7 ) L a u t e r p a c h t , E., op. cit., p . 41 -4 2 .
(2 8 ) S t o n e , J., op. cit., p . 39.
(29) Blum , Y.Z., Reflections on the Status o f Judea and Samaria, 3 Isral L.R., 1968, p. 283.

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FRANK L.M. VAN DE CRAEN

rebellion o f the Jewish minority and consequently their first priority was
to put an end to this insurgence with the help of the befriended Arab
neighbours (31). The Palestinians refused indeed to accept the self-determination framework as worked out by the U nited Nations, which was, according to them, a ngation instead o f a realization of their right to self-determination (32).
An appraisal o f the dcision o f the U nited Nations (implicitly supported
by the M andatory) can, however, not lead to the conclusion of a ngation of
the Palestine Peoples right to self-determination. It is true that the G eneral
Assembly did not dcid on basis o f the majority rule principle, but after
a deep-going analysis of the situation, and we refer here to the fmdings o f the
U.N. Special Commission on Palestine and the Ad Hoc Committee on
Palestine of the G eneral Assembly, the U.N. G eneral Assembly had to take
into account the indisputable strength o f a distinct Jewish national identity in
Palestine, which could only express itself through the realization of a separate

(30) This could already be observed in the preparatory stage w hen the Arabs form ulated their
objections against a partition and a separate Jewish State in the Ad Hoc Com m ittee on the
Palestine Question of the G eneral Assembly, i.e. in its second Sub-Cttee, see G A O R , 2nd Sess.,
A /A C 14/32, p. 274 et seq. By the vote on the Partition Resolution the A rab states were
unanimously against. Shortly before the term ination of the M andate, on 12 M ay 1948, Am bassador el-Khoury of Syria, addressing the Security Council as official A rab spokesm an, once
more strongly rejected the partition o f Palestine, see S/PV /291, p. 14. See also T r y g v e L ie , In
the Cause o f Peace, N ew York, 1954, p. 163 et seq.
(31) See N a k l e h , I., Palestine spokesman, in his address to the Security Council, SCOR, 3rd
Year, nr66, 15 May 1948, p. 8-9; Sem inar o f Arab Jurists, op. cit., p. 101-102; H a s s o u n a , H., op.
cit., p. 245,278. Already in F ebruary 1948 the A rab League had decided to respond to the appeal
o f the A.H.C. to provide assistance to the Arab People o f Palestine. See in that sense also
statements issued by different A rab G overnm ents to justify their intervention : Egypt, SCOR,
3rd Year, 292nd meeting, p. 3;
Transjordan, SCOR, 3rd Year, suppl. for April 1948, p. 90, S/748; Saoudi-Arabia, SCOR, 3rd
Year, suppl. for April 1948, p. 96, S/772. A uthoritative A rab author B. Boutros-Ghali, however,
casted some doubts on this A rab com m itm ent to suppress the Jewish rebellion and restore peace
and order in Palestine, see supra (22).
(32) M a lliso n , W.T., the Balfour Dclaration, an Appraisal in International Law, in I. A buLoghod, the T ransform ation of Palestine, N.W . University Press, 1971, p. 110; W r i g h t, Q., the
Middle East Problem, 64 A.J.I.L., 1970, p. 277; B assiouni, M.C., Self-Determination and the
Palestinians, Proc. A.S.I.L., 1971, p. 36, in which the author states that only those people who
have a legitimate right to a given territory can exercise it there. This is a correct view point in so
far as the world Jewish com m unity did not have a right to self-determ ination, b u t only the Jews
present in Palestine, and their national identity was undubitable. See also C a tt a n , H., op. cit., p.
78-79, the authors arguments, however, rely on the incorrect premise o f a de facto Palestine
independence and the consequent sole right o f the inhabitants to dcid on their future based on
the m ajority rule. The Sem inar o f A rab Jurists, the Palestine Question, 22-29 July 1967 in Algiers,
1968, Beirut, p. 87-91, the authors argue that the self-determ ination principle was violated
because no official plbiscit was organized, o r in default o f that, because the principle that the
Jewish comm unity could not be granted m ore than an official m inority status, was n ot adopted:
A k e h u rst, M., the Arab-Israeli Conflict and International Law, 5 N ew Z ealand Univ. L.R., 1973,
p. 234-235,236, in which he states that it was : a clear sacrifice o f the interests o f the majority...
not compatible with the rights which the C ovenant o f the League o f N ations had conferred on
the population of Palestine as a whole .

ISRAL AND PALESTINE

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right to sovereignty and independence (33). W e will not indulge ourselves in

a discussion of the juridical nature o f the principle o f self-determ ination in
the early years o f the United Nations, we simply re-emphasize the fact that
self-determination and right to statehood have to be assessed here
within the scope o f the m andate system. We refer in this regard to A. Rigo
Sureda who very aptly states :
It can therefore be concluded that the G eneral Assembly, acting with the consent
o f the M andatory, can modify the status o f a m andated territory (even splitting it up
in two parts) and that, in doing so, it is com petent to dcid on claims to self-de
term ination p ut forward by comm unities living in the said territory (34).

b. Different approaches as to the continued existence o f the right to

sovereignty o f the Arab Palestinians
There is a first group o f scholars who completely leave out any discussion
on the existence o f an Arab population in Palestine. Hence, they do not have
to deal with the existence or non-existence o f their right to self-determ ina
tion, we refer in this regard i.a. to Y.Z. Blum (35), J. Stone (36), S.M.
Schwebel (37).
Adherents to a second theory acknowledge the existence o f the Palesti
nians but do not recognize their right to independence and sovereignty. They
merely accept a respect for their religious and civil rights (38), or deal in
concreto with their right to self-determ ination but only consider it as a
political or moral principle with no lgal force (39).
A third group o f lgal scholars actually recognize the right to sovereignty o f
the Arab Palestinians, but argue that this right has become extinct since it was
not exercised, in that regard S. Rosenne states :
This should be rem em bered today, w hen the right o f the A rabs o f Palestine to
self-determ ination is asserted, it was they who rejected it in 1948 (40).

Similarly Ph. J. Gendell and P.G. Stark contend that, even when the A rab
Palestinians did not proclaim the independence at the same time as the Jews
did,
(33) S ee e.g. S o h n , L., Cases on United Nations Law, N e w York, 1967, p. 419 e t seq .
(34) R ig o S u r e d a , the Evolution o f the Right to Self-determination, a United Nations Practice,
London, 1973, p. 48, see also p. 133. See e.g. also the partition o f the R uandi-U rundi trust
territory in two states (Ruanda and Burundi), G.A. Res. 1746 (XVI) o f 27 June 1962.
(35) B l u m , Y.Z., Reflections on the Status o f Judea and Samaria, 3 Isral L.R. 1968, p. 283;
B l u m , Y.Z., Secure Boundaries and Middle East Peace, Jerusalem , 1971, p. 88-89.
(3 6 ) S t o n e , J., op. cit., p . 39.
(37) S c h w e b e l , S .M ., What Weight to Conquest ?, 64 A.J.I.L., 1970, p. 346-347.
(38) C o c t r e -Z il g ie n , op. cit., p . 56.

(39) F e in b e r g , N., the Arab-Israeli Conflict in International Law, in M o o r e , J.N ., op. cit., I, p.
429; S c h m id t -S ib th , H., op. cit., p. 19-22.
(40) R o s e n n e , S., Directions for a Middle East Seulem ent - Som e Underlying Lgal Problems,
33 Law and Contemp. Probl., 1968, p. 51. See also L e v in e , A., op. cit., p. 495; L a u t e r p a c h t , E.,
op. cit., p. 18.

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FRANK L.M. VAN DE CRAEN

they m ade no apparent effort to claim title within a reasonable time. Thus, by
virtue of the doctrine o f extinctive prescription, the Palestinians have arguably lost
whatever lgal title they m ay have possessed (41).

Finally, a fourth group not only defends the right to sovereignty o f the
Arab Palestinians, bu t also upholds its continued existence hic et nunc . A.
Gerson puts forward that the Palestinian rejection of the Partition Resolution
did not represent a renunciation o f their right to sovereignty, but was rather a
non-acceptance o f the limitations on this right in the way it was conceived by
the United Nations. H e then states that this right still exists since no opportunity to exercise it has occurred up till now (42). One would expect an
explanation for this non-occurrence o f opportunity, however, the author fails
to give one (43). Equally M.C. Bassiouni defends the still actual right to
sovereignty o f the Palestine People, however, not limited to the W est Bank
and Gaza. He offers as reason for the non-proclam ation of the independence
of an Arab Palestine state in 1948, the dplacem ent of the Palestinians from
their territory on a large scale (44).
c. A loss or extinction o f the Arab Palestinians right to sovereignty
and independence ?
If the Palestinians had entirely ceased to exist as a people , be it because
of an explicit or even an implicit acceptance of, or acquiescence in, foreign
rule over their territory (45), a loss or extinction of their right to sovereignty
and independence could be said to have taken place. However, at no point in
time during the post-M andate era substantial proof for this can be furnished.
Indeed, after the term ination o f the M andate, the A rab H igher Com mittee
continued to represent the Palestine People. In July 1948 the A rab League
decided to install a provisionary civil adm inistration in Palestine and on
23 September o f the same year an all-Palestine G overnm ent was proclaimed
in Gaza. This government claimed to be reprsentative for the whole o f the
former Palestine m andated territory, rcognition was extended to it by ail
Arab League states, except by Jordan. The all-Palestine Governm ent, ho
wever, was unable to exercise any real authority over Palestine territory,

(41) G e n d e l l , Ph.j. and S t a r k , P.J., op. cit., p. 226-227.

(42) G e r s o n , A., op. cit., p. 35-36.
(43) The only possible explanation we can find is an implicit reference to the com bined
intervention o f the A rab League at the term ination o f the M andate, im peding the Palestinians to
assert their independence, however, nothing is m entioned about the Israeli intervention which
took place at the same time. It has equally to be noted that the author recognizes the right to
sovereignty o f the Palestinians over the West Bank (and G aza), but not over the other Palestine
territories allotted to them by the Partition Plan. Once again, an explanation for this incom pr
hensible distinction is not provided, ibidem , p. 36-40.
(44) B a s s io u n i , M.C., the Middle East, the Misunderstood Conflict, 19 Univ. K ansas L.R.,
1971, p. 386-388; see also A r m a n a z i , G., the Rights o f the Palestinians: the International
Dfinition, 3 J. Palest. St., n r 3, 1974, p. 90.
(45) U nder foreign rule we dot not understand Israels sovereignty over the territory
allotted her in the partition plan, since this is a perfectly lgal title.

ISRAL AND PALESTINE

511

not even over the West Bank and the G aza Strip, which rem ained respectively under Jordanian and Egyptian control, it consequently ceased to function in September 1952. The nucleus o f the Palestinians rights to sovereignty,
nevertheless, remained. Indeed, Palestine continued to be represented in
the Arab League. In 1959 the League reached a consensus on the form ation
of a newly defined Palestine entity, this plan could finally be im plem ented in
1964 when the Palestine Liberation Organization (P.L.O.) was established
and the Palestine N ational C harter was formally adopted (46). It took another five years, namely until 1969, before their right to self-determination
would be re-acknowledged by the U nited Nations (47). This m arked the start
of a new and decisive era for the Palestine People in which their right to
sovereignty would gain wide rcognition. In 1974 the P.L.O. was even granted observer status by the U.N. G eneral Assembly (48). As a resuit o f this, the
Palestinians right to sovereignty which was in suspension for over two
decades, must be re-appraised in the light of that new volution, this will be
our task in the last part o f this study.

CHAPTER II. ISRAELS TITLE TO TH E TERRITORIES

SEIZED OUTSIDE THE TERM S O F THE PARTITION
PLAN. JO R D A N S A N D EG Y PTS JU R ID ICA L POSITIONS
IN PA L E ST IN E
A. THE JU RID ICA L STATUS O F ISRA ELS PRESEN C E IN T H E TER R ITO R IES
SEIZED IN EXCESS O F TH E PA RTITIO N RESO LU TIO N

The intervention of the Arab League in Palestine and the war with Isral in
1948-1949 resulted in profound changes o f the m ap of Palestine . W hen in
1949 the armistice agreements were signed between Isral and its four Arab
neighbours (Jordan, Lebanon, Syria, Egypt), not only had Isral expanded its

(46) See e.g. B o u t r o s - G h a l i , B., la Ligue des E tats arabes, 137 Rec. Cours, 1972, III, p. 34-35;
H a sso u n a , H ., op. cit., p. 264-269, 287-290; F ish e r , R.A., Following in A nothers Footsteps:
International Lgal Standing by the Palestine Liberation Organization, 3 Syracuse Journ. Int.
L.C., vol. 1,1975, p. 232-233; B a s s io u n i , M.C., Self-Determination and the Palestinians, Proc.
A.S.I.L., 1971, p. 34-35. See also B e r t e l s e n , J.S., Non-State Nations in International Politics, the
Palestinian Arabs, New York, 1977, esp. p. 13-18 on the emergence o f the Palestine nation
(1956-1967).
(47) A r m a n a z i , G., op. cit., p. 92, speaks in this regard o f a breakthrough in the U .N .
practice vis--vis the Palestine Question (Res. 2535 (XXIV) o f the G eneral Assembly).
(48) See for the P.L.O. observer status, G A OR, Res. 3237 (XXIX), 22 N ovem ber 1974, 29th
Sess. suppl. 31 (1), (A/9631), p. 4. On the U.N. practice as to the Palestinians right to self-de
termination, see e.g. C a t t a n , H ., op. cit., p. 217-221, however, his interprtation o f the U.N.
resolutions as rejecting the existence o f the state o f Isral cannot b e ad h ered to. See in this regard
the most recent position on Palestine by the U nited Nations, G.A. Res. 32/40,15 D ecem ber 1977
and the most recent report o f the U.N. Cttee on the Exercise o f the Inalinable R ights o f the
Palestine People, GAOR, 32nd Sess., suppl. 35 (A /32/35), esp. p. 11-13.

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FRANK L.M. VAN DE CRAEN

territory beyond the borders foreseen in the Partition Plan, but Egypt occupied the Gaza Strip and Jordan was in the process of annexing the W est Bank
of the Jordan River.
The armistice agreements were no peace treaties and could as such not
establish de jure borders between Isral and its neighbours. The lgal
significance of these agreements is nothing more than an obligation for the
parties involved to respect the dm arcation lines and to refrain from revising
them unless they consent to such rvision by drawing up a perm anent peace
settlement (49). The intention to use the words of the Jordanian U.N.
reprsentative on the eve o f the 1967 Six D ay W ar was to bring about a
situation frozen by an armistice agreem ent (50).
Although the Palestine People were not a party to the armistice agree
ments, this does not prejudice their right to sovereignty. It is exactly this right
that grants the armistice agreements their full effect and significance of
merely establishing dmarcation borders. If the Palestinian fact had been
non-existent, it would have been perfectly correct to consider the dm arca
tion borders as de ju re boundaries. After ail, Isral, Jordan, and Egypt
would only have occupied a terra nullius .
However, since the Palestinian fact (this inclusive their right to sove
reignty) was never non-existent, the terra nullius concept has to be rejected, as we have examined earlier. Authoritative Israeli or Israel-oriented
scholars of international law also reject this thesis. But the rejection of the
terra nullius concept fits very well into their defense or justification
framework for Israels title over the territories seized in excess o f the area
allotted her by the Partition Plan. A terra nullius would indeed have
meant that the area was open to occupation for every entrant, including the
Arab neighbours (51). Seen the fact that the presence of the Palestinian
population couldnt be flatly denied, the very vague and actually empty
non-uninhabited terminology to characterize the status o f the said terri
tories is uniquely used by Israel-oriented sources to prove that Isral was

(49) H ig g in s , R., United Nations Peace Keeping, 1946-1967,1, London, 1969, p. 33-49.
Each of these four agreements contains a clause stating that the rights, claims, o r positions of
the parties concerned in a final peaceful settlem ent shall not be prejudiced by the armistice
agreements, the provisions in the agreements are exclusively dictated by m ilitary considration.
(50) U.N. Doc. S/PV 1345 o f M ay 31, 1967, p. 47.
(51) G e r s o n , A., op. cit., p. 42, footnote 124, states that the diffrence betw een terra
nullius and the non-uninhabited terminology is m ere semantic juggling. We can agree to
this , but the author interprets it erroneously in that sense that equally in case of a terra
nullius only the legitimate entrant can acquire title to the territory.
In case o f terra nullius , the question o f legality or illegality o f entry is not at the
discussion, see e.g. B e r b e r , F., op. cit., p. 368-369, on the conditions for occupation of terra
nullius .

ISRAL AND PALESTINE

513

indeed entitled to extend its sovereignty thereover, because it acted in lgal

self-defense and consequently cannot be term ed but a legitimate entrant
(52).
Is it now possible to speak of lgal self-defense or of legitimate entry in
such a state of affairs ?
I. What are the lgal consquences ofthis so-called legitimate entry by Isral ?
We agree on the fact that is so far as IsraePs neighbours wanted to
destroy the young state there existed an act o f aggression (53). However,
the error m ade by Israeli or pro-Israeli scholars o f international law is that
they view the Arab intervention in the context o f an aggression, not only
against Isral, but equally against Palestine or Eretz Yisrael (the land
given to Isral) as a whole. Y.Z. Blum defends this thesis by specifically
referring to individual statements by the U.N. reprsentatives o f the two
superpowers (Tarasenko, Ukraine-USSR and Austin, USA), but he fails to
take into account the gnral policy of the Security Council who kept com
pletely silent on this question o f aggression or non-aggression (54). The
(52) See supra(26), see e.g. S c h w e b e l , S .M ., op. cit., p. 346, he writes : But the attack (o f the
neighbouring A rab states) did justify Israeli defensive m easures, both within and, as necessary,
without the boundaries allotted her by the partition plan... ; similarly L a u t e r p a c h t , E ., op. cit.,
p. 45, submits : By provoking this Israeli m ovem ent (because o f their aggression) outside the
boundaries o f the Jewish State, the A rabs themselves legitimized the process by which Isral
filled the vacancy in sovereignty in the areas (outside her borders as envisaged by the partition
plan) which, in order to save their kin, the Israeli forces were obliged to defend and therefore to
occupy .
(53) See the statements of the Secretary G eneral o f the A rab League, SCOR, 3rd Year, suppl.
ftr May 1948, p. 83-88, S/745; of the A rab spokesm an in the Security Council, Syrian Am bassador el-Khoury, SCOR, 299th meeting, n r 71, 25 M ay 1948, p. 13-14; and o f the reprsentative
of the Arab Palestinians, N a k l e h , I., SCOR, 3rd Year, 292nd m eeting, nr 66, 15 M ay 1948, p.
8-9. In ail these statements the cration o f the State o f Isral was described as a rebellion or an
armed insurrection which had to be suppressed. In so far as this suppression was directed against
Isral itself, these statem ents were a clear indicator o f an Arab aggression. See also A k e h u r s t ,
M., op. cit., p. 236-237, in which the author erroneously considers the A rab intervention as a n aid
against a subversion . Firstly, the cration o f Isral was not a subversion; secondly, Palestine
was not an independent State and the A.H.C. was not its legitimate governm ent which could call
upon foreign aid.
(54) B l u m , Y.Z., Reflections on the Status o f Judea and Samaria, 3 Isral L.R., 1968, p.
284-286. On the attitude o f the U nited Nations, see M a r t in , P .M ., le conflit isralo-arabe, Paris,
1973, p. 66-80; H a s s o u n a , H ., op. city., p. 329-330.
The Security Council sent a questionnaire to the A rab countries i.a. asking them to subm it a
defence for their intervention in Palestine. In their reply the A rab countries basically relied upon
art. 52 o f the U.N. Charter, which was as a m atter o f fact not directly applicable. Instead they
should have based their case on the sovereignty vacuum theory, which created the possibility
for lgal entry into Palestine, however, not for attacking Isral, see SCOR, 3rd Year, 30lst
meeting, 22 May 1948, p. 7-15.
Similarly adhering to this erroneous theory o f an A rab aggression against Palestine , see
S t o n e , J., op. cit., p. 39; S c h w e b e l , S.M., op. cit., p. 346; L e v in e , A., op. cit., p. 492; S h a m g a r ,
M ., the Observance o f International Law in the Administered Territories, in M o o r e , J.N., op. cit.,
II, p. 374-75.

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FRANK L.M. VAN DE CRAEN

greater part o f Palestine still constituted a sovereignty vacuum , which

could be freely occupied by foreign powers, b ut over which no sovereign title
could be established. As a resuit o f this, both Isral and the Arab countries
could move into the other part o f Palestine allotted to the not established
Arab Palestine state, bu t could not acquire sovereign title over those areas.
The distinction between a legitimate and illegitimate , or more precisely expressed lgal or illgal entry, was as such not posed.
2. The impact o f the Palestinian right to sovereignty in this seizure by Isral
The situation in the 1948-1949 W ar was generally characterized by a lack
of deeper insight in the factual lgal status o f Palestine , nam ely that of a
sovereignty vacuum . Isral did not initially claim outright sovereignty
over these seized territories, instead she left this question open (55). The
United States, as Israels principal ally, m aintained the view that Isral could
not annex those territories or at least not ail o f them, so it exercised a strong
pressure on the Jewish State to make territorial concessions (56). The U nited
Nations refrained from commenting upon the legality or illegality o f the
Israeli and Arab entry into Palestine and its juridical consquences for a
possible acquisition o f title over the area. Only U.N. m ediator Bernadotte
suggested that the disposition o f territories allotted to the Arab Palestine state
should be left to the states of the A rab League, bu t this in full consultation
with the Arab inhabitants of Palestine (57).
However, soon after the armistice agreements were concluded, Isral moved to fully incorporate the territories not allotted her in the partition plan,
although she never officially declared the location o f her borders (58).

(55) See C a t t a n , H., op. cit., p. 128-129, he cites Israeli dclarations m ade in the U nited
Nations.
A like attitude was taken by Isral w hen it signed the protocol o f L ausanne (12 M ay 1949),
actually an historie docum ent since it was the only occasion on which Isral and its Arab
neighbours could be brought together by the U.N. Conciliation Commission on Palestine and
acquiesced in the 1947 U.N. partition plan as a basis for a peace solution, see F o r s y t h e , D.P.,
United Nations Peace M aking, London, 1972, p. 50-52; F e in b e r g , N., On an Arab Jurists
Approach to Zionism and the State o f Isral, Jerusalem , 1971, p. 80-85, in which the author
explicitly refers to the Israeli rservations and to the protocol itself where the parties reserved
their rights to m ake territorial adjustm ents . It is however doubtful w hether we can still
consider the Israeli extension o f sovereignty over ail the territories seized during the 1948-1949
W ar as a territorial adjustm ent . A part from that we m ay not forget to take into account the
suspended right to sovereignty o f the Palestinians.
(56) See C a t t a n , S., op. cit., p. 128; the author also points o ut that Israels flexible position as
regards the seized territories only lasted until she was adm itted to m em bership o f the U nited
Nations.
(57) See ibidem, p. 126-127; the m ediator actually favoured an incorporation into T ransjor
dan. See for the U.N. attitude esp. G.A. Res. 194 (III), 11.12.1948, G A O R, 3rd Sess., suppl.
A/810,1 part, p. 21-25.
(58) B l u m , Y.Z., Zion Was Redeemed by International L aw , 27 H a Praklit, 1971 (in
Hebrew), p. 317. See also the letter o f 27 Oktober 1949 sent by Isral to the U.N. Conciliation
Commission on Palestine, U.N. Doc. A / 1367, p. 53-54.

ISRAL AND PALESTINE

515

Formally, there is still a distinction in status between these territories and the
actual part of Palestine foreseen for the Jewish State in the partition plan,
nevertheless, this distinction does not alter Israels claim to full sovereignty
over the whole area within the 1949 armistice boundaries (59).
Israels sovereignty claims can only be appraised in relation to the Pales
tinians right to sovereignty in suspension , consequently, a sovereign title
is impossible. Indeed, there is even no gnral rcognition of the additional
territory occupied in excess o f the partition plan (60). But even if Isral does
not hold sovereign title over these seized areas, it is not, as e.g. H. C attan
contends, a mere belligerent occupant either (61). Belligerent occupation can
only occur in a territory which is under an established authority bu t whose
authority has been ousted. A sovereignty vacuum is per dfinition not
subjected to an established authority. It should be added that an esta
blished authority does not ipso facto m ean a sovereign authority . As a
resuit of this, Isral can actually only be considered as a trustee , and while
enjoying that status, it is entitled to exercise the supreme authority, but not
the sovereignty, over the said territories (62).

(59) See especially J.L., the International Status o f Palestine, 90 J.D.I., 1963, p. 972-974, in
which the author writes : T he area o f Jurisdiction and Powers Ordinance, 1948... rendering
Israeli Law applicable to territory under Israeli m ilitary occupation, incorporated a distinction
between the area o f the State o f Isral as such and any p art o f Palestine which the M inister
of Defence has defined by Proclam ation as being held by the Defence Army of Isral . The
Distinction between the two areas has been w om away in Israeli jurisprudence, the A rea of
Jurisdiction and Powers Ordinance enabling Israeli Courts to apply Israeli lgislation to the
territory originally under m ilitary occupation (thus the 1948-1949 seized territories), although
the division between the two portions has continued to exist, if no m ore than formally, o n the
statute books .
E. Lauterpacht equally defends the sovereign title of Isral, he views this question indepen
dent from the armistice agreements which actually created, according to Lauterpacht, de ju re
boundaries, see L a u t e r p a c h t , E., op. cit., p. 45. This once m ore proves the artificiality o f his
sovereignty vacuum concept which can actually be equated with that of a terra nullius .
See also F e in b e r g , N., On an Arab Jurists Approach to Zionism and the State o f Isral,
Jerusalem, 1971, p. 29; the author states that the only answer to the question o f the lgal status of
these territories is the strict adherence to the status quo , however, he leaves wide open the
question o f annexation or simply adm inistration by Isral.
(60) W r ig h t , Q., Lgal Aspects o f the Middle East Situation, 33 Law and Contem p. Probl.,
1968, p. 18.
(61) C a t t a n , H., op. cit., p. 129.
(62) In a territory held on trust , as we studied above, sovereignty is in abeyance or in
suspension , although the right to sovereignty belongs to the inhabitants. It will revive w hen the
trusteeship ends and the population is enabled to exercise its right to sovereignty. The situation
here in Palestine is in that sense unique in that the greater n um ber o f the inhabitants do
not rsid in the area.
The concept o f trusteeship, which we use here, is o f course not tnat described in C hapter X II of
the U.N. Charter since there is as such no U.N. co-responsibility. T hat does not take away the
fact that certain parallels can be drawn, we refer especially to art. 76 (b) o f the C harter where the
promotion o f self-government and independence is emphasized. T h at of course requires a
positive attitude on the part o f Isral as to the Palestinians right to sovereignty, to which extent
this will be complied with, will be discussed later.

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FRANK L.M. VAN DE CRAEN

B. TH E LEGAL STATUS O F JO R D A N IN T H E W EST BANK

W hat has been stated on the position o f Isral in the territories not allotted
her by the Partition Plan, grosso m odo also applies to Jordans lgal
position in the West Bank. Jordan occupied the West Bank and subsequently
annexed it, but this did not happen without problems. After the proclam ation
of the all-Palestine Governm ent in Septem ber 1948, not everybody in Pa
lestine favoured this government, definitely not those who supported King
Abdullah o f Transjordan. They organized a N ational Palestine Congress in
lericho in October 1948, where about 5000 notables o f the W est Bank
convened, to denounce the all-Palestine Governm ent and to call upon King
Abdullah to take Palestine in his protection (63). In the spring of 1949 a civil
government was installed in the West Bank and in Decem ber 1949 the
lectoral laws were changed so that equally reprsentatives from the West
Bank could get elected for the Jordanian parliam ent. The official merger
with Transjordan was then approved by the newly elected parliam ent on 24
April 1950 (64).
The key problem to be assessed here is whether or not the Arab Palestinian
inhabitants of the West Bank agreed to be part of Jordan, A. Gerson stated in
that respect :
... nothing however would have precluded Jordan from succeeding to Palestinian
sovereign rights, h a d the Palestinian A rabs chosen to cede such rights... (65).

Indeed, serious doubts arise as to the democratie consent expressed by the

West Bank population vis--vis the Jordanian annexation. Moreover, the
Arab League unanimously denounced Jordans annexation as violative of
the Leagues policy, which had always furthered the principle that the mili
tary intervention should be temporary and devoid o f any character of occu
pation or partition o f Palestine . Especially because of the Leagues atti
tude, Jordan found itself in a very uncomfortable position and came even on
the brink o f exclusion. In extremis an agreem ent could be reached with the
Hachemite Kingdom, which contained an explicit assurance by Jordan that
the annexation was without prejudice as to the final settlem ent o f the Pales
tine problem (66).

(63) K ir k , G ., Survey o f International Affairs, the Middle East, 1945-1950, London, 1954, p.
286.
(64) S c h m id t -S ib e th , op. cit., p . 74-76; D avis , H ., Constitutions, Electoral Laws, Treaties o f
States in Near and Middle East, D u r h a m , N.C., 1953, p . 253-266. N e v e r th e le s s , th is a n n e x a tio n
d id n o t a p p e a r to b e fin a l. I n d e e d , s e c tio n 2 o f th e a n n e x a tio n la w re a d s : ... th is u n ity s h a ll in
n o w a y b e c o n n e c te d w ith th e f in a l s e ttle m e n t o f P a le s tin e s j u s t c a u s e w ith in th e lim its o f
n a tio n a l h o p e s , Arab c o o p r a tio n , a n d in te r n a tio n a l ju s tic e . S ee a lso W h it e m a n , M., 2 Digest
o f International Law, W a s h in g to n , 1963, p . 1166. H o w e v e r, th is a lo n e w o u ld p r o v e to b e a n
in s u ffic i n t f o r m u la tio n fo r th e A rab L e a g u e s ta te s .

(65) G e r s o n , A., op. cit., p. 36.

(66) See on this Jordan crisis H a s s o u n a , H ., op. cit., p. 33-41; G e r s o n , A., op. cit., p.
37-38. See for Jordans acceptance o f the Leagues policy, M inutes o f the Leagues Council, 12th
Ordinary Sess., 7th meeting, 12 Juny 1950, p. 293-294.

ISRAL AND PALESTINE

517

The Arab League, as only instance up to now, gave a correct lgal appraisal
of Jordans juridical position when it stated that Jordan was only entitled to
hold the West Bank on trust (67). Jordan can, however, not be considered
as a trustee-occupant as A. Gerson describes it (68). The concept of
trustee-occupation is, equally as that o f belligerent occupation, typical for a
state of belligerency, which was clearly not the case in the West Bank, at least
not before the Six Day W ar. The territories occupied and so-called annexed
by Jordan (and similarly by Isral) were not territories belonging to an
established state and occupied in a war against that state, but territories that
constituted a sovereignty vacuum with the suspended right to sove
reignty vested in the Arab Palestinians. F or identical reasons, nor Jordan or
Isral can be considered as belligerent occupants, whether lawful or unlawful
(69).
While Isral considers itself fully sovereign in the territories seized in
excess of the Partition Resolution, contrary to its actual status in international
law, the attitude of Jordan, since it is bound by its own annexation procla
mation and its subsquent commitment to the A rab Leagues policy, was for

(67) See e.g. H a s s o u n a , H ., op. cit., p. 41-43.

(68) G e r s o n , A ., op. cit., p . 39-40; S a u s e r -H a l l , G ., w h ile a p p ra is in g th e l g a l s ta tu s o f
G e rm a n y a fte r th e u n c o n d itio n a l s u r r e n d e r a t th e e n d o f W o r ld W a r II, p ro v id e s u s w ith a n
in te re s tin g s tu d y o n tru s te e -o c c u p a tio n , loccupation de lAllemagne par les puissances allies,
3 A n n . su isse D.I., 1946, p . 36-53. T h e a d m in is tra tiv e m e a s u re s ta k e n b y th e f o u r A llie d P o w e rs
w e re d e m o n s tra b ly in ex cess o f th e p o w e rs o f a b e llig e re n t o c c u p a n t u n d e r th e H a g u e R g u l a
tions, n e v e rth e le s s , d e p ic tin g th e s ta tu s a s th a t o f a d e b e lla tio w ith a d v o lu tio n o f s o v e
re ig n ty c o u ld n o t b e a d h e r e d to e ith e r. C o n s e q u e n tly , th e s ta tu s o f tru s te e - o c c u p a n t c o rre c tly
e x p resses th e l g a l p o s itio n o f th e A llie d P o w e rs in G e r m a n y a t th a t tim e .

(69) For Isral as belligerent occupant, see C a t t a n , H ., supra (61). See also the Fjeld, Prize
Court o f Alexandria, 4 N ovem ber 1950,1.L.R., 1950, p. 348-349. The C ourt refused to consider
Isral as a state , instead it regarded her as an insurgent m ovem ent o f the Jewish p opula
tion in Palestine. In doing so, the C ourt failed to give a correct lgal appraisal o f the concept of
insurgent m ovement , which is always linked to the presence o f an established state authority,
such authority was clearly not present in Palestine . This is once again an additional pro o f for
our sovereignty vacuum theory in relation to the territories foreseen for the A rab Palestine
State, and for Israels effective sovereign title to the area allotted her in the Partition Plan.
On the other hand, for Jordan as a belligerent occupant, see B l u m , Y.Z., Reflections on the
Status o f Judea and Samaria, 3 Isral L.R., 1968, p. 283-293. The author indeed correctly subm its
that Jordan was not entitled to annex the W est Bank, but consequently concludes that Jordan
was nothing more but an (unlawful) belligerent occupant. This fallacious interprtation rests on
a double basis; frstly on a mis-interpreted non terra nullius status, see supra (26), secondly,
on a m is-interpreted Jordanian aggression , see supra (54). The author equally attacks Jor
dans annexation o f the W est Bank on the basis o f the armistice agreements, ibidem, p. 288, but
he neglects to refer to the fact that this freeze o f the situation imposes the same restrictions on
Isral. Finally, the author bases the belligerent occupation on the correct lgal assum ption o f the
ousting o f the legitimate sovereign , but he fails once m ore to point out that legitimate
sovereign which was (unlawfully) ousted by Jordan in order that itself could becom e the
(unlawful) belligerent occupant in the West Bank, ibidem, p. 293.
The same erroneous appraisal o f Jordan as belligerent occupant , on virtually identical
grounds, is m ade by e.g. S t o n e , J., op. cit., p. 39; S c h w e b e l , S .M ., op. cit., p. 346; S h a m g a r , M .,
op. cit., p. 374-375; L e v in e , A., op. cit., p. 492-494; G e n d e l l PI i .J. and S t a r k , P .G ., op. cit., p.
222-223, 227; M a r t in , P .M ., le conflit isralo-arabe, Paris, 1973, p. 274-276.

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FRANK L.M. VAN DE CRAEN

a long time not that clear. It could the best have been described as that o f a
de facto sovereignty (70). That this de facto sovereignty could hardly
be distinguished from a de jure sovereignty (with Jordan in the position of
an ousted sovereign after the Six D ay War), was i.a. clearly shown in 1972
when King Hussein presented its plan for a final territorial settlem ent in the
form of a fdral Kingdom of Jordan (71). It was only during the im portant
Rabat summit o f the Arab League at the end of October 1974 that Jordan
consented to the cration o f an independent Palestinian state comprising i.a.
the West Bank (72).
C. TH E LEGAL STATUS O F EG Y PT IN TH E GAZA STRIP

The 1947 partition plan forsaw that the area commonly known as the G aza
Strip be part o f the proposed A rab Palestine state. This area came subsequently under Egyptian adm inistration in the 1948-1949 War. Egypt, contrary to Jordan or Isral, did not move for annexation. The Egyptian adm i
nistration could, until the Six Day War, be considered as the only one who
acted in concert with the juridical status of the area, which was that o f a
trust territory . In the view o f Egypt, the Gaza Strip rem ained part of
Palestine and therefore Palestine might be said to have retained an actual
existence, albeit in a somewhat truncated form (73). It would be erroneous to

(70) U nder de facto sovereignty we understand that there is actually an exercise of

sovereign powers, but this w ithout prejudice as to the ultim ate disposition of the territorial title.
Only two states, namely Pakistan and the U nited Kingdom , recognized Jordans title over the
West Bank.
F or the U nited Kingdom see Debates, h.c., vol. 474, cols. 1137-1139. It should also be
mentioned here that certain lgal scholars defend a de ju re sovereign status for Jordan over
the W est Bank, see e.g. S c h m id t -S ib e t h , op. cit., p. 74-76; R p e r , E., op. cit., p. 21.
(71) The Arab states rejected the Hussein proposais as not in accordance with its trus
tee status in the W est Bank, see 1 J. Palest. St., nr 4, 1972, p. 166-170 (Hussein proposai),
ibidem, p. 155-161 (Arab and Palestinian reactions).
(72) See for the text of the so-called Palestine Resolution , 4 Journ. Pal. St., vol. 2, 1975, p.
177-178. The resolution speaks o f the exclusive Palestine (P.L.O.) authority over any liberated
part of Palestine, w ithout precising to which p art o f Palestine the Palestinians can claim sove
reignty. It is not immediately clear in the Resolution whether it equally relates to Israels original
territorial title (partition plan of 1947). W e can, however, definitely interpret the R esolution as
clearly referring to the W est Bank and the G aza Strip. See also F ish e r , R.A., op. cit., p. 245;
K yle , K., the Palestinian Arab State, Collision Course or Solution, the W orld Today, Sept. 1977,
p. 346; G e n d e l l Ph.J. and S t a r k , P.G., op. cit., p. 227, footnote 127, subm it that the Jordanian
parliam ent embodied this waiver o f claims in a constitutional am endm ent. However, the constitutional amendm ents o f Novem ber 1974, in so far as they related to the Palestine question,
only entitled the Sovereign to re-organize the Kingdom in order to de-Palestinize the branches of
government, see F is h e r , W.B., the Middle East and North Africa, 1975-1976, L ondon, 1975, p.
453,463.
(73) J.L., op. cit., p. 982-984. Since 1948 the Courts have continued to apply Palestinian law
(basically M andatory law). The executive authority was vested in the G overnor-G eneral appointed by the Egyptian M inister o f Defence. Advisory lgislative powers were exercised by a
partly elected, partly appointed council. The G overnor-G eneral issued ordinances and decrees

ISRAL AND PALESTINE

519

simply describe the Egyptian presence as that o f a belligerent occupant, not

only were the conditions under which Egypt entered the G aza Strip the same
as those under which Jordan entered the West Bank, ipso facto excluding a
possible belligerent occupancy, but Egypt in actual fact assumed its task of
trustee (74).
D. TH E STATUS O F JERUSALEM , T H E D IV ID ED CITY

Other than for the Palestine M andate stricto sensu , the U nited N ations
had not renounced its responsibility for Jerusalem, which was destined to be
placed under an international rgime as corpus separatum (75). The
Trusteeship Council o f the U nited Nations, which had been instructed to
work out an appropriate statute, adopted its final plan on 4 April 1950 (76).
In the meanwhile, and this as a direct result o f the 1948-1949 W ar, the city
had been split in two parts, a western and an eastern sector, respectively
occupied by Isral and by Jordan. Both countries subsequently proceeded to
incorporate their respective parts o f the city into their state territory (77).
in the Palestine Gazette to supplem ent existing enaetments, so did the first, nam ely the Law nr
621 of 1953, provide i.a. for the continuation o f the Palestine O rder in Council o f 1922 and o f ail
Palestine laws in force. In a constitutional Decree, signed by President N asser on 5 M arch 1962,
we can read as follows in C hapter 1 (art. 1) : The G aza Strip is an insparable p art o f the land
o f Palestine and its people are a p art o f the A rab N ation . T hat the area was not u nder Egyptian
sovereignty is i.a. m ade clear by the British Foreign Secretary Selwyn Lloyd, M arch 1957, H.C.
Debates, vol. 566, col. 1320.
(74) Erroneously assessing Egypts status in the G aza Strip as that o f a belligerent occupant,
see e.g. M a r t in , P.M., op. cit., p. 276-277; S h a m g a r , M ., op. cit., p. 373; G e n d e llP I i.J . and
S t a r k , P.G., op. cit., p. 224-225. The Egyptian adm inistration could not simply be viewed as a
mere military adm inistration see also J.L., op. cit., p. 982-984.
(75) See S h e p a r d -J o n e s , S., the Status o f Jerusalem, Som e National and International Aspects,
33 Law and Contemp. Pr., 1968, p. 177-179.
(76) A modified statute for Jerusalem s status worked out by the U .N . Conciliation
Commission for Palestine, which proposed extensive co-gestionary powers for both Isral and
Jordan, was rejected, see GAOR, Ad Hoc Polit. Cttee, annex, vol. 1, p. 10, U.N. Doc. A /973,
1949. See for the final plan, Special R eport o f the Trusteeship Council, U.N. Doc. A / 1286, 1951.
The Council re-emphasized in this final plan the principles o f a far-reaching internationalization
under U.N. administration. See also V a n D u s e n , M., Jerusalem, the Occupied Territories, the
Refugees, in M. Khadduri, M ajor Middle Eastern Problem s in International Law, W ashington,
1972, p. 39-41; A k e h u r s t , M., op. cit., p. 237-238.
(77) See e.g. J.L., op. cit., p. 974-976, in which the author states that, as far as Jerusalem (west
sector) is concerned, the annexation by Isral and the subsquent proclam ation o f Jerusalem as
Israels capital, has not gone unchallenged. Indeed, several countries (w hereunder the USA,
G reat Britain, France, the USSR, Belgium...) refuse to recognize Israels sovereignty over the
New City (West Jerusalem). They have not moved their embassies to Jerusalem and m aintain a
single Consulate or Consulate-General for both sectors o f the city. See in this regard the
Consulate-General o f Belgium in Jerusalem and the Consul-General o f Belgium in Jerusalem,
District Court o f Jerusalem, 30.3.1953, 13.7.1953,1.L.R., 1953, p. 391-400. As for the Old City
(East Jerusalem), Jordans annexation in April 1950 as p art o f the incorporation o f the W est
Bank into its state territory, rem ained virtually non-recognized by other states, only G reat
Britain and Pakistan granted rcognition and the British G overnm ent did it only de facto .

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FRANK L.M. VAN DE CRAEN

However, the city of Jerusalem was not a sovereignty vacuum , contrary to

the status of the other Palestine territories. It cannot be argued that the
proposed international rgime would have m ade Jerusalem an independent
entity, a city-state , therefore the internationalization proposai went too
far (78). The United Nations could have been considered as being invested
with the supreme title over the city if the corpus separatum statute had
been implemented. This would have m eant the emergence of a sui-generis concept in international law, nam ely a fully internationalized territory,
over which the U.N. could to a large extent actually exercise the powers of a
sovereign , leaving only a form of internai autonom y for the inhabitants
(79).
The envisaged international rgime for Jerusalem was o f course not destined to be perpetual, the right to ultimate sovereignty rem aining vested
in the inhabitants. In a referendum after 10 years under the rgime, the
population could have expressed its wishes as to modifications o f the rgime
(80).
Itis true that the United Nations only possesses limited inherent powers of
government, and as D.P. OConnell states :
It is doubtful if it has the powers of lgislation implied in the exercise o f sove
reignty... .

Nevertheless, the author makes an implicit exception for the proposed

status of Jerusalem (81). Indeed, the United Nations not only enjoys those
powers expressly conferred upon it by the Charter, bu t has also the powers
and comptence which may reasonably be deduced or implied from its
purposes and functions. It is based upon this thesis, which fnds increasing
acceptance in the practice o f the U nited Nations and in the interprtation of
the Charter by the International C ourt of Justice, that the conferring o f such
far-reaching powers upon the U nited Nations taking into account of
course that rather unique situation of an envisaged international Jerusa
lem after the relinquishm ent of the m andatory powers can be adhered to
(82).
The fact that such an international rgime was never im plemented, the fact
that the U.N. never constituted the administering authority in the city, and
last but not least the graduai exhaustion of U.N. interests in internationali(78) See e.g. B r o w n l ie , I., op. cit., p. 64-65.
(79) The raction of the Israelis and the A rabs vis--vis the international rgime for Jerusalem
was rather negative, see e.g. V a n D u s e n M., op. cit., p. 39.
We re-emphasize that the U .N., as only rem aining authority for Jerusalem after the M andate
renunciation by the U nited K ingdom , was entitled to draw up an appropriate statute for the city
of Jerusalem, taking into account the right to self-determ ination of its inhabitants (an approximately equal num ber o f A rabs and Jews) and the citys international spiritual vocation.
(80) See e.g. C a t t a n , H., op. cit., p. 179.
(81) O C o n n e l l , D.P., op. cit., p. 104-105.
(82) See for this theory o f the implied powers, e.g. K e l s e n , H., Principles o f Public
International Law, New York, 1967, p. 284-285.

ISRAL AND PALESTINE

521

zation, can indeed lead to the conclusion that the U nited Nations has relinquished its compeience for Jerusalem (83). This would, however, be a
premature interprtation o f the U.N. position in Jerusalem. The U nited
Nations may have acquiesced in the status quo o f the city, respectively
under a de facto Israeli and de facto Jordanian sovereignty (Jordan is
an ousted de facto sovereign since the 1967 War), but it never, either
explicitly or implicitly, endorsed any final partition, nor any other altration
in this status quo (84).
Consequently, a thesis of sovereignty for Isral and mere belligerent
occupation for Jordan (85), or a thesis o f sovereignty for both Isral and
Jordan (86), or even a thesis o f belligerent occupation for the two aforementioned countries (87), have to be rejected. While Jordans official posi
tion was that of a de facto sovereign (88), Isral has always considered
itself as fully de jure sovereign in West Jerusalem (89), contrary to its
status of de facto sovereign under international law. This de facto
sovereignty status may, however, not prejudice an ultim ate solution which
must take into account the right to self-determ ination o f both the Jewish and
the Arab Palestinian People.

(83) See e.g. L a u t e r p a c h t , E., op. cit., p. 23-33.

(84) This attitude was well voiced in the im m ediate U.N. reaction to the Israeli occupation
- incorporation of East Jerusalem in June 1967 and has always reflected its policy, notw ithstanding m any years o f silence on the status o f Jerusalem , see G.A. resolutions 2253 (4.7.1967)
and 2254 (14.7.1967), 5th Emerg. Spec. Sess., suppl. 1, (A/6798), 1967, p. 4. See also A k e h u rs t,
M., op. cit., p. 238, in which the author writes that there still exists a vestige o f title to Jerusalem in
the United Nations, C a t t a n , H., op. cit., p. 182-183; S h e p a r d Jones, S., op. cit., p. 178; the
official position of the Belgian Government, see the answer by the M inister o f Foreign Affairs to
a question by E. Glinne, M.P., Bull. Q.R., Ch., 6 April 1971, 1069, in which the M inister stated
that Jerusalem is still considered as a de ju re international territory, this in accordance with
the U.N. practice.
(85) See e.g. L a u t e r p a c h t , E., op. cit., p. 37-47; L e v in e , A., op. cit., p. 492-495; M a r t in ,
P .M ., op. cit., p. 268-270.
(86) S e e e.g. S c h m id t -S ib e t h , H., op. cit., p. 73-76; B e r m a n , S .M ., Recrudescence o f the
Bellum Justum et pium Controversy and Israels Runification o f Jerusalem, 7 I n te r n . P r o b l.,
n rs 1-2, 1969, p. 30,35.
(87) See e.g. C a t t a n , H., op. cit., p. 179-180, 183.
(88) See for the annexation law, e.g. W h it e m a n , M., 2 Digest o f International Law,
Washington, 1963, p. 1166.
(89) The Area o f Jurisdiction and Powers Ordinance o f 1948 has also been applied in respect
of Israels jurisdiction over its sector o f Jerusalem.

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FRANK L.M. VAN DE CRAEN

CHAPTER III. TH E SIX DAY W AR OF JU N E 1967

AND ITS AFTERM ATH, CONSEQUENCES
FO R ISRAELS TERRITORIAL STATUS
A. ISRA L AS BELLIG EREN T O CCU PA N T

W hether or not the Six D ay W ar must be considered as a war o f aggression

or as a war of self-defence on the part o f Isral, the one prohibited under art.
2 (4) of the U.N. Charter, the other perm itted under art. 51 o f that same
Charter, is difficult to judge upon (90). Indeed, the arguments had to be
examined as part o f a sequence o f Byzantine complexity, consequently, the
United Nations Security Council refrained from expressing its opinion on the
matter (91).
1. No territorial acquisition as the resuit o f the use offorce
It is generally recognized in international law that no acquisition o f territoiy by belligerent actions is possible, whether it be a w ar of self-defence or a
war of aggression. Only the U.N. Security Council possesses the necessary
authority to appraise the aggressive or non-aggressive character of a war,
however, it often refrains from expressing itself seen the very controversial
nature o f a factual apprciation (92). This basic principle of la Victoria no
da derechos is not only inherent in the rules of customary international law,
defining military occupation and permitting acquisition of territory only by
annexation following a generally recognized complete conquest or debellatio (93), or by a cession o f territory in a peace treaty term inating the
state o f war (94), but it is equally embodied in the C harter of the U nited
(90) See e.g. for the thesis that Isral was the aggressor, H a s s o u n a , H ., op. cil., p. 333-334;
C a t t a n , H ., op. cit., p. 167-176; the Sem inar o f Arab Jurists, op. cit., p. 105; B a s s io u n i , M.C.", the
Middle East, the Misunderstood Conflict, 19 Univ. K ansas L.R., 1970-71, p. 393-396; S h ih a t a , I.,
the Territorial Question and the October War, 4 J. Palest. St., n r 1, 1974, p. 44-46.
See for the thesis that Isral acted in self-defence, e.g. S t o n e , J., the Middle E ast under Cease
Fire, in M o o r e , J.N., op. cit., II, p . 52-64; S h a p ir a , A., the S ix Say War and the R ight to
Self-Defence, 6 Isral L.R., 1971, p. 65-80; S c h w e b e l , S .M ., the M iddle East, Prospects for Peace,
in M o o r e , J.N., op. cit., II, p . 136-137; D in s t e in , Y ., the lgal Issue o f Para War and Peace in the
Middle East, 44 St. Johns L.R., 1969-1970, p . 466,468-470.
(91) Neither in Security Council Res. 242 of 22 N ovem ber 1967, SCOR, 1967, p. 8-9, or in S.C.
Res. 338 o f 22 October 1973, SCOR, 1973, p. 10, the two basic Resolutions on the M iddle East
question providing i.a. a lgal appraisal o f the state o f belligerency, an indication can be found as
to the aggressive or the self-defensive character o f the Six D ay W ar.
(92) See the dfinition o f aggression , G.A. Resolution 3314 o f 14 D ecem ber 1974, G A OR,
29th Sess., suppl. 31, (A/9631), p. 143, which re-emphasizes that it is the Security Council which
dtermines in accordance with art. 39 o f the Charter the existence of an act o f aggression.
(93) Debellatio in the actual practice o f international law only rem ains a theoretical
possibility, see O C o n n e l l , D.P., op. cit., p. 441.
(94) A cession in a peace treaty is only valid if it is not concluded under the threat to, or the
use o f force, see the Convention ofV iennaon the Law ofTreaties, art. 52, 63 A.J.I.L., 1969, p. 875;
W r ig h t , Q., the Middle East Problem, 64 A.J.I.L., 1970, p. 272.

ISRAL AND PALESTINE

523

Nations in art. 2 (4) and in the im portant Dclaration on Principles of

International Law Concerning Friendly Relations in G.A. Resolution 2625
(XXV) of 24 October 1970 (95).
Taking into considration this basic principle, Isral cannot assert sove
reign title over East Jerusalem, the West Bank, or the G aza Strip by simply
relying on its military conquest.
2. Does Isral possess a better title to the Palestine
occupied territories ?
It is argued by Israeli and pro-Israeli lgal scholars that Isral actually
possesses a better title than respectively Jordan and Egypt to the West
Bank and the Gaza Strip. These contentions are based upon the thesis that
both Jordan and Egypt were mere belligerent occupants there, who have
been ousted in the Six Day War, m aking it possible for Isral to legitimately in state o f self-defence enter into these territories. This entry is not
regarded, however, as that of a simple belligrant occupant either, still
according to this theory, the ousted belligerents cannot claim reversionary
rights as the holders o f sovereign title can. Consequently, in the absence of
these reversionary rights there is actually no other state which has a better
title than Isral to these territories, which could even m ake Isral the
potential sovereign over the West Bank and the G aza Strip (96).
(95) See also M cD o u g a l M.S. and F e l ic ia n o , F.P., Law and M inim um World Public Order,
New Haven, Conn., 1961, p. 732-739; O C o n n e l l , D.P., op. cit., p. 433; W r ig h t , Q., the M iddle
East Problem, 64 A.J.I.L., 1970, p. 270-271; S c h w e b e l , S.M., What Weight to Conquest ?, 64
A.J.I.L., 1970, p. 345. This principle is equally adhered to by leading Israeli scholars o f interna
tional law as e.g. B l u m , Y.Z., Secure Boundaries and M iddle E ast Peace, Jerusalem , 1971,p. 83;
R o s e n n e , S., Directions fo ra Middle East Peace, 33 Law and Contem p. Probl. 1968, p. 59-60, this
last author, nevertheless, states that m any effects in the political m ap o f the world would follow
from an unquestioning acceptance o f this principle.
It is true that the no acquisition o f territory by w ar principle is not p art o f classical
international law, but is one o f the leading principles o f contem porary international law which
developed after World W ar I. In this regard we refer i.a. to the Covenant o f the League of
Nations, the Briand-Kellogg Pact, the Stimson Doctrine and last b u t not least the whole U.N.
practice. See also the extensive U.N. practice specifically pertaining to the no weight to
conquest principle in the M iddle East question, e.g. S.C. resolutions : 242 (22.11.1967), 252
(21.5.1968), 267 (3.7.1969), 298 (25.9.1971), 338 (22.10.1973), 381 (30.11.1975), D claration o f
11.11.1976, Report of the S.C. (1976-1977). e.g. G.A. Resolutions 2628 (XXV), 2799 (XXVI),
2949 (XXVII), 3331 (XXIX), 3414 (XXX), 31/6 (26.10.1976), 32/40 (15.12.1977).
T h e re a re n e v e rth e le s s s till a d h e r e n ts to th e th e o ry o f ju s tif le d te r r ito r ia l e x p a n s io n f o r th e
v ic to r in w a rs o f s e lf-d e fe n c e , se e B e r m a n , S .M ., op. cit., p . 35-37; M a r t in , P .M ., op. cit., p .
261-265. S u c h c o n te n tio n s , h o w e v e r, a re n o t o n ly c o n tr a r y to th e ru le s o f c o n te m p o r a r y i n te r
n a tio n a l la w , b u t th e y w o u ld a lso o p e n th e g a te s f o r a r b itr a r y a c tio n s u n d e r th e p r e te x t o f b e in g
the v ic tim o f a n a g g re ss io n .

(96) See for this theory on the better title e.g. B l u m , Y.Z., Secure Boundaries and Middle
East Peace, Jerusalem, 1971, p. 90-91; S t o n e , J., N o Peace - No War in the Middle East, Sydney,
1969, p. 38-40; S c h w e b e l , S .M ., What Weight to Conquest, 64 A.J.I.L., 1970, p. 346-347;
L a u t e r p a c h t , E., op. cit., p. 48 (specifically then for East Jerusalem ); L e v in e , A., op. cit., p.
495-496, the author suggests here that Isral could change its public posture to that of a
sovereign in order to create clarity, ibidem, p. 498.

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FRANK L.M. VAN DE CRAEN

We cannot but reject the thesis o f better title since its premises are
clearly incorrect. We have extensively examined the lgal status o f Jordans
and of Egypts presence in Palestine and came to the conclusion that both
had to be considered as trustees in the territories under their respective
administration. Consequently, ' trustees cannot be dealt with in the same
way as belligerent occupants , they clearly have reversionary rights (97).
It is now contended by e.g. A. Gerson that Jordan and Egypt as trustees
(incorrectly called trustee-occupants) would not be entitled to reversionary
rights since they did not only mismanage their trust , but equally used it as
a permanent threat o f aggression against Isral (98). The first argum ent has
to be dismissed because it relates to the domestic affairs o f both countries, it
can only be of relevance in the case of an obvious and generally condemned
non-fulfilment of their responsibilities, to that end no proof can be furnished
(99). The second argument concerning the goal o f the trust m ust also be
rejected, because stating that the trust shall last until a final settlem ent for
the Palestinians right to self-determination can be worked out, cannot be
equated with a destruction o f Isral, as A. Gerson ail too easily interprets it.
Consequently, there can be no question of an unlawful custodianship, Jor
dans and Egypts reversionary rights remain intact. Ail this leads us to
conclude that Isral can only acquire the status o f a belligerent occupant,
while Jordan and Egypt m aintain their rights as ousted trustees , and the
Palestine People still possess their ultimate claims to sovereignty and inde
pendence.
3. Does Security Council Resolution 242 of 22 November 1967 provide Isral
with an extra title to certain territories ?
The well-known S.C. Resolution 242, definitely a key element in the search
for a peaceful settlement in the M iddle East, has been the subject of many
studies and unavoidably also o f different interprtations. Nevertheless, if we
re-capitulate its contents, we actually discover two m ajor principles : firstly,
the prohibition of territorial enrichm ent by the use of force; secondly, the
necessity of secure and recognized boundaries for every state in the M iddle
However, under the actual Israeli G overnm ent led by M enachem Begin this necessary elarity
has not been brought forward, see C o r n u , F., la rponse dilatoire de M. Begin , le Monde, 20
June 1978, p. 1, 3. Even after the Cam p D avid accords-cadre for peace in the M iddle East,
this necessary elarity has not been brought forward, see also supra (3).
(97) See e.g. G e r s o n , A., op. cit., p. 40, as to the reversionary rights o f the trustee-occu
pants respectively the trustees .
(98) Ibidem, p. 41, the author only deals with the W est Bank, b u t it is well understood th at the
same applies to the G aza Strip.
(99) A parallel can be drawn with the N am ibia M andate; here the U nited N ations revoked
the M andate because o f a fundam ental breach o f the m andate contract by South Africa, which
persisted in depriving the population o f their right to self-determ ination, see G.A. Res. 2145
(XXI) of 27 October 1966. See also the I.C.J. Advisory O pinion on N am ibia, I.C.J. Reports, p. 6
at 46-47, 50. Such a breach o f their trustee obligations has definitely not occurred in the case
of Jordan, nor in the case o f Egypt.

ISRAL AND PALESTINE

525

East. That there was no direct reference to the rights of the Palestine People
can be deplored but that was soon adjusted in the U.N. practice. As to the
first principle, we simply refer to our exam ination above o f the no weight to
conquest principle. As to the second principle, it re-affirms the position of
the United Nations in favour of the statehood o f Isral, but it does not
prcis where Israels de jure boundaries have to be situated. It is exactly
here that an interprtation dispute arose between the French and English
version of the Resolution, respectively stating : withdrawal from the territo
ries (retrait des territoires occups) and withdrawal from territories occupied
in the Six Day War. If we take into account the wording process of the
Resolution, the English version carries indeed the m ost weight (100). In
addition to this, it has been argued that S.C. Resolution 242 was not destined
to be binding because it was taken under C hapter VI of the U.N. C harter
(peaceful settlement of disputes) and not under C hapter VII (measures of
peace enforcement) (101). However, this S.C. Resolution, containing basic
principles for a durable settlement of the M iddle East question, is so widely
accepted and referred to that we may well state that it gained the rang of
binding document in international law (102).
The principles enum erated in the Resolution have also to be assessed
within the framework of gnral international law, in which the no terri
torial gains as the resuit of war principle is of a prim ordial importance,
meaning that the prerequisite of secure and recognized boundaries for
Isral does not automatically include an extension of its territory. Reading
into the Resolution a concept of perm itted territorial expansion on basis of
self-determined security requirements, would definitely m ean an inno
vation in international law, for which no authoritative confirmation can be
found (103). Secure and recognized boundaries can only be established by
(100) See for a convincing argumentation, e.g. H o t z , A.J., Lgal Dilem m as, the Arab-Israel
Conflict, 19 S. D akota L.R., 1974, p. 255-259.
(101) See e.g. S t o n e , J., No Peace - No War in the Middle East, Sydney, 1969, p. 23-24, 26-27;
R o s e n n e , S., Directions for a Middle East Peace, 33 Law and Contem p. Probl., 1968, p. 57.
S h a pir a , A ., the S.C. Resolution o f November 22,1967, its Lgal Nature and Implications, 4 I s ra l
L .R ., 1969, p. 229-241.
This does not m ean that ail S.C. resolutions taken under C hapter VI o f the C harter are ipso
facto non-binding, see e.g. the Lgal Consquences for the States o f the Continued Presence o f
South Africa in Namibia notwithstanding the S.C. Rsolution 276(1970), I.C.J. Reports, 1971, p. 6
at 53-54. See also H ig o in s , R., the Advisory Opinion on Namibia, which U.N. Resolutions are
binding under art. 25 o f the Charter ?, 21 I.C.L.Q., 1972, p. 270 et seq.
(102) See e.g. S h ih a t a , I., op. cit., p. 48-49; the principles of S.C. Resolution 242 were again
emphasized 6 years later in S.C. Resolution 338, and they rem ain a constant factor in the U .N .
practice.
(103) Favouring the thesis that security requirem ents perm it unilatral territorial adjustments, so-called based on international law, see esp. B l u m , Y.Z., Secure Boundaries and Middle
East Peace, Jerusalem, 1971, p. 71-79; S to n e, J., No Peace - No War in the Middle East, 1969, p.
28; R ostow , E., the United Nations and the M iddle East, Proc. A.S.I.L., 1970, p. 69.
Reference to such a theory cannot be found in contem porary international law, see e.g.
B r o w n l ie , I., op. cit., p. 130-174; O C o n n e l l , D.P., op. cit., p. 405-447.
See also P e r r y , G., Security Council Resolution 242, the Withdrawal Clause, 31 M iddle E ast J.,
1977, p. 413-433, the Resolution m ust be read in its entirety, not only emphasizing secure
borders, but equally no weight to conquest , and the territorial inviolability.

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FRANK L.M. VAN DE CRAEN

multilatral or bilatral agreements with ail the parties concerned, including

the Palestine People. Only these agreements can possibly contain certain
territorial adjustments, but then on the basis of the generally accepted inter
national law principle o f cession .
4. Does the concept o f uti possidetis facilitate Israels acquisition o f title to
Palestine occupied territories ?
This lgal maxim is i.a. used by Y.Z. Blum who suggests that there exists a
fait accompli o f occupation and that the uti possidetis would enable
Isral to establish its sovereignty over parts of the occupied territories by a
mere subsquent agreement with the Arab neighbours (104). A definitely
more direct, but clearly erroneous apprach, is pu t forward by S. Berm an
who considers the uti possidetis as a key element to justify an outright
annexation o f occupied territory, hereby appraising the ceasefire agreements
as terminating the state of war and as an acquiescence by Jordan (and Egypt)
in the fait accompli of the occupation (105). The uti possidetis
principle should be used with great care, it originated in ancient Rom e
(decree of the Preator) and it actually reads : uti possidetis, ita possideatis
(as you possess, so m ay you possess). This concept was used by the Latin
American republics in the 19th century to delineate their m utual borders,
because not always clear border lines had been drawn between the former
Spanish administrative units. Hence, they merely resorted to a feasible
practice for their own convenience (106). The uti possidetis principle has
hardly been accepted in international law (107) and may definitely not be
understood as a fait accompli of occupation enabling sovereign title to be
vested in Isral by mere subsquent agreement with the neighbouring coun
tries (108).
5. Can Isral rely upon natural and historie rights to claim title to
Palestine occupied territories ?
Certain circles defend the thesis that Isral, supported by such rights, is
entitled to acquire sovereignty over the entirety of the form er Palestine

(104) B l u m , Y.Z., Secure Boundaries and Middle East Peace, Jerusalem , 1971, p. 83-84. See
also S t o n e , J., No Peace - No War in the Middle East, Sydney, 1969, p. 29, 32. However, this
author does not interpret the principle in such a far-going way and relies i.a. on the uti
possidetis to justify Israels continuing presence in the occupied territories.
(105) B e r m a n , S.M., op. cit., p. 31, 35.
(106) See e.g. H y d e , Ch., International Law, Boston, 1947, p. 501; S c h a u m a n n W. in St r u p p -S c h l o c h a u e r , Worterbuch des Vlkerrechts, III, 1962, p. 483-484; see also G e r s o n , A.,
op. cit., p. 6, footnote 15.
(107) Even B l u m , Y.Z. admits this, see Historie Titles in International Law, T he H ague, 1965,
p. 341-342.
(108) See e.g. B r o w n l ie , I., op. cit., p. 138, the author refers to its contem porary meaning
which embodies the gnral principle that pre-independence boundaries (in Africa or in Asia),
set up by the colonial power, rem ain in being.
Consequently, uti possidetis obviously does not relate to post-independence situations of
belligerent occupation.

ISRAL AND PALESTINE

527

M andate (Eretz Yisrael) (109). Even recent statements by the Israeli G o

vernment point in that direction (110). However, in so far as the lgal nature
of such claims is concerned, they lack any basis whatsoever in international
law (111).
6. Does Isral possess rights to Palestine as a successor to the M andatory ?
Some (isolated) scholars answer this question in the affirmative, however,
the theory of Isral as a successor to the U nited Kingdom has been clearly
rebuked by Israels own jurisprudence (112).

B. IM M ED IATE OR N O N -IM M ED IA TE W ITH D RA W A L

F R O M O CCU PIED T ER R IT O R IE S ?

Another im portant controversy in the A rab-Israel conflict is centered

around the continuing presence o f Isral in the occupied Palestine territories. The principle o f no territorial gains by the use o f force, well esta
blished in international law, cannot be equated with the principle o f the
non-continuation o f belligerent occupation and the obligation to immediately withdraw, without first having juridically appraised the actual situ
ation (113). The nature itself of the belligerent occupation plays a prom inent

(109) See the stand taken by the national religious party, M. Brecher, the Foreign Policy
System o f Isral, London, 1972, p. 172-174. See also the reactions o f that sam e party, of the right
wing o f the Likoud party, and o f especially the ultra nationalist G ouch E m ounim m ovem ent,
C o r n u , F., les accords de Cam p David , le Monde, 20 Septem ber 1978, p. 3.
(110) See K y l e , K ., op. cit., p. 344, referring to the view o f Prim e M inister Begin. See also
Prime Minister B egins Address to the Knesset, 20 N ovem ber 1977, on the occasion o f President
Sadats visit, in W. Asia Diary, Jan. 8-14, 1978, p. 866.
(111) See e.g. B l u m , Y.Z., Historie Titles in International Law, T he H ague, 1965, the author
does not at ail refer to o r does n ot examine the so-called historie rights o f Isral. See also S t o n e ,
J., Liberation Movements, Arab and Jewish, 91 Q uadrant (Australia), vol. XVII, 1974, p. 62, in
which the author states that such theory m ay be thought to express a principle o f m orals and
justice, rather than of technical international law.
(112) The thesis that Isral was the only authority left in Palestine at the renunciation o f
the M andate by G reat Britain, and was consequently entitled to succeed to the M andatory for
the whole o f Palestine, is e.g. defended by GENDELLPh.j. and S t a r k , P.G., op. cit., p. 226, 229.
However, the authors fallaciously attribute the sam e opinion to i.a. B l u m Y .Z . and L e v in e , A.
See also in defence o f this thesis C o c t r e -Z i l g i e n , A., op. cit., p. 56-57.
F or a good survey o f the Israeli jurisprudence rejecting such a theory, see e.g. W h it e m a n , M.,
op. cit., 2, p. 807, 853, 857, w hereunder the well-known Shimshon Palestine Portland Cement
Factory Itd v. A.G. o f Isral, Suprem e C ourt o f Isral sitting as C ourt o f Civil A ppeals, 12.4.1950,
I.L.R., 1950, p. 72-81.
(113) H ig g in s , R., the Place o f International Law in the Settlem ent o f Disputes by the Security
Council, 64 A.J.I.L., 1970, p. 7-8, the author states that it is particularly disturbing to the
lawyer the way in which the notion o f territorial acquisition has becom e blurred with that o f
military occupation. See also B l u m , Y.Z., Secure Boundaries and M iddle East Peace, Jerusalem ,
1971, p. 80-83; G e r s o n , A., op. cit., p. 44-45, footnote 132. Both authors refer to Q. W right as one
of the leading authorities comm itting this disturbing error, see W r ig h t , Q., the M iddle East

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FRANK L.M. VAN DE CRAEN

part in this discussion. In so far as the prohibition o f territorial acquisition

was concerned, the aggressive or defensive character o f the Six D ay W ar was
of no relevance. In so far as the withdrawal question is concerned, however,
in case o f a real aggression, the aggressor-belligerent occupant cannot claim
the right to continue the occupation, this according to the generally accepted
lgal maxim ex inuria ius not oritur (114). O n the other hand, in case o f a
belligerent occupation out of self-defence, the entry cannot be term ed as
illgal , consequently, the belligerent occupant is legally entitled to rem ain
present in the territory pending a peace treaty (115). Since in the case o f
Israels entry into the occupied territories, no judgem ent can be passed on the
lawfulness or unlawfulness o f its belligerent actions, we cannot conclude that Isral illegally occupies the territories seized in the Six Day
War, but neither can we defend the thesis that it is a lgal belligerent
occupant.
Ail this has some im portant consquences. Firstly, no vacuum can
subsist in the occupied Palestine territories, an adm inistering authority is
necessary. Isral fulfils this rle now, b u t m ust strictly obey to the interna
tional lgal rules o f the belligerent occupation (116). Secondly, Isral is only
Problem, 64 A.J.I.L., 1970, p. 272 (Blums reference), and W r ig h t , Q., the U nited N ations and
the Middle East, Proc. A.S.I.L., 1970, p. 74 (G ersons reference). However, W r ig h t Q. has
always defended the package deal approach and never subm itted that Israels belligerent
occupation was as such illgal , to state otherwise would be unfair vis--vis this late great
American scholar of international law; see especially his articles in the A J.I.L . o f 1970, p. 275
and in 33 Law and Contem p. Probl., 1968, p. 24, and also his contribution in the Proc. A.S.I.L.,
1970, p. 74.
(114) Territorial acquisition and (forcible) occupation are incorrectly p ut on the sam e footing
of inadmissibility w ithout m aking a clear appraisal of the nature o f the belligerent occupa
tion by e.g. H a ss o u n a , H ., op. cit., p. 310-311; S h ih a t a , I., op. cit., p. 52.
This view is on the other hand correctly defended by A rab lgal scholars, o n the prem ise that
the Six Day W ar has to be regarded as an Israeli was of aggression, see e.g. C a t t a n , H., op. cit.,
p. 205-207; see also S t o n e , J., N o Peace - No War in the Middle East, Sydney, 1969, p. 32, who
dclars : If Isral would have unlawfully resorted to war, the insistence on Israels w ithdraw al
might have substance . The premise o f either an Israeli aggression or an Israeli self-defence
cannot be upheld as we stated earlier.
See equally on this question, G e r s o n , A., War, Conquered Territory, and M ilitary Occupation
in the Contemporary Lgal System, 18 Harv. Int. L.J., 1977, p. 544.
(115) See e.g. S t o n e , J., N o Peace - N o W arin the Middle East, Sydney, 1969, p. 29,33; B l u m ,
Y.Z., Secure Boundaries and Middle East Peace, Jerusalem , 1971, p. 83-84; R o s e n n e , S., Direc
tions for a Middle East Settlement, 33 Law and Contem p. Probl., 1968, p. 59-60. These aforem entioned authors also tend to rely on the m axim uti possidetis in order to justify a
continuing occupation. This concept, however, cannot be used within the fram ew ork o f belli
gerent occupation, see supra (121). See also on lgal belligerent occupation, H ig g in s , R .,
supra (126) at p. 8; G e r s o n , A., Israels Presence in the West Bank, a Trustee-Occupant, 14 H arv.
Int. L.J., 1973, p. 44.
(116) Even if the belligerent occupation is clearly illgal (for example the occupation o f
Belgium by G erm any in W orld W ar I and II), the adm inistrative acts of the belligerent occupant,
nevertheless based on an illgal presence, have to be considered as valid in so far as they do not
violate the 1907 H ague Rgulations and the 1949 G eneva Conventions. See e.g. X I Trials o f War
Criminals before the Nuremberg M ilitary Tribunals, 1948, p. 1230, 1247; B e r b e r , F., op. cit., II,
Kriegsrecht, M unich, 1969, p. 128; S t o n e , J., Lgal Controls o f International Conflicts, L ondon,
1959, p. 695; K e l s e n , H., op. cit., p. 139 et seq., with i.a. a special reference to the Belgian
jurisprudence o f the im m ediate post W orld W ar I period, ibidem, p. 141-142.

ISRAL AND PALESTINE

529

the belligerent occupant as long as there is no peace treaty, its lgal position
can the best be described as a situation de fait frozen by the ceasefire
agreements of June 1967 (117). Thirdly, Israels status o f belligerent occupant
may, however, change in relation to the right o f self-determ ination o f the
Palestinians. In that regard, as we will see later on, a re-appraisal o f the
nature o f the belligerent occupation will become necessary.
C. A N ATTEM PT TO ASSESS T H E O F FIC IA L ISRA ELI PO SITIO N
AS REG A RD S ISRA ELS LEG A L STATUS IN TH E P A L E S T IN E
TERRITORIES O C C U PIE D IN T H E SIX D A Y W AR.

It is not within the scope o f this study to legally appraise Israels adm ini
stration o f these occupied territories, we simply w ant to point out some
important elements of this adm inistration and conclude from that brief
assessment whether the Israeli G overnm ent in fact considers Israels position
as that of a mere belligerent occupant, and if not, how its actual position can
the best be described ?
1. The Old City or East Jerusalem
Officially, the G overnm ent o f Isral dnis the outright annexation o f East
Jerusalem, instead it speaks o f an intgration o f East Jerusalem in the ad
ministrative spheres o f Isral (118). However, this official position can hardly
be considered to be in harm ony with the governm ental policy in concreto.
Indeed, the Israeli Governm ent has extended full civilian governm ent to the
Old City, which cannot be term ed b u t annexation (119), this clearly in
violation of international law.
(117) See S.C. resolutions 233, 234, 235, 236, for the text see 62 A.J.I.L., 1968, p. 302-304.
(118) See i.a. Israels Foreign M inister A bba E bans dclarations in the G eneral Assembly
and in the Security Council, U .N . DOCS. A /6753, S/8052 (1967). See also a statem ent by
S h a p ir o , Y.S., Justice Minister, 3 July 1967, 49 K nesset Proceedings, p. 2453. This position is
equally supported by e.g. S t o n e , J., No Peace - No War in the Middle East, Sydney, 1969, p. 20,
and by L a u t e r p a c h t , E., op. cit., p. 48.
(119) The Law and Adm inistration O rdinance (A m endem ent n r 11) Law o f 27 June 1967
permitted the extension o f the law, jurisdiction, and adm inistration o f the State o f Isral to any
area o f Eretz Y israelor Palestine designatedby governm ental order, see 21 Laws o f the State
of Isral, 75 (1967). The Israeli G overnm ent thenpassed A dm inistrative and Judicial O rder n r 1,
extending IsraePs law, jurisdiction, and adm inistration to East Jerusalem on 28 June 1967. See
G erso n , A., Israels Presence in the West Bank, Trustee-Occupant, 14 H arv. Int. L.J., 1973, p.
11-12, the author also states that IsraePs official position is m ere sem antic from the view point o f
lgal effect. The same author refers to a ruling of the Isral Suprem e C ourt (sitting as the High
Court o f Justice) in October 1970, R ijuni and Others v. M ilitary Court in Hebron, in which the
majority o f the C ourt confirm ed the annexation o f E ast Jerusalem , ibidem, p. 12. R eference can
also be m ade to a similar case, nam ely M. Abdullah Dawidi and Others v. M ilitary Court in
Hebron, see Jerusalem Post, 17 N ovem ber 1970, p. 6. Also in support o f the thesis th at Isral has
extended its sovereignty over East Jerusalem , see e.g. M a r tin , P.M ., op. cit., p. 270-274;
B erm an, S., op. cit., p. 31 ; L evine, A., op. cit., p. 499-500. The status o f E ast Jerusalem is n o t p art
of the Cam p D avid fram ework for peace in the M iddle East. T he problem will form the
subject o f an exchange o f letters between Isral and Egypt. It is generally expected th a t the
parties will agree to disagree by stating their old well-known positions, see T a tu , M.,
premires dissonances isralo-amricaines , le M onde, 20 Septem ber 1978, p. 4.

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FRANK L.M. VAN DE CRAEN

2. The West B ank and the Gaza Strip

As regards these territories, the position o f the G overnm ent o f Isral
cannot be analyzed that easily. It is true that no lgislative measures have
been taken which can lead us to the conclusion that an annexation has
actually taken place (120), bu t this does not imply that Isral acts in com
pliance with her status o f belligerent occupant . Isral, as a party to the
Fourth Geneva Convention o f 1949 (121), disputes the de ju re applicability o f this convention to the Israeli presence in especially the W est Bank
and the G aza Strip. Isral adheres only to a de facto observance, and this
not even in its entirety (122). Isral contends that its military adm inistration
applies Jordanian law in the West Bank (with allowance for m inor m odifi
cations) (123). A key part in this state o f belligerent occupation is played by
the 1945 British Defence Emergency Rgulations, which have been incorporated, according to the Israeli Governm ent, into the Jordanian lgal
system. This is denied by Jordan who expressly submits that its own Transjordanian Defence Rgulations (1935) are in force in the W est Bank (124).
The situation in the G aza Strip seems to be som ewhat different. Since 1972
the military government there has de facto been replaced by a civil
administration (125). It is, however, not so much IsraePs adm inistration o f
the West Bank and the G aza Strip that would go beyond its powers o f
belligerent occupant, it is m uch more its policy o f colonization o f the area
(126) which constitutes a direct violation o f the F ourth G eneva Convention,
(120) See also e.g. L e v in e , A., op. cit., p. 496; M a r t in , P .M ., op. cit., p. 276, 278; G e r s o n , A.,
Israels Presence in the West Bank, Trustee-Occupant, 14 Harv. Int. L.J., 1973, p. 12-13.
(121) The F ourth G eneva C onvention is the Convention relative to the protection of civilian
persons in the time o f war, see 75 U.N.T.S., 287.
(122) See for official Israeli statem ents and positions, e.g. G e r s o n , A., Israels Presence in the
West Bank, Trustee-Occupant, 14 Harv. Int. L.J., 1973, p. 2-3, esp. footnote 3.
(123) G e r s o n , A., ibidem, p. 13-14.
(124) See e.g. V a n A g g e l e n J.G .C., Protection o f Hum an Rights in the Israeli H eld Territories
since 1967 in the Light o f the Fourth Geneva Convention, Rev. Egypt. D.I., 1976, p. 85-90. T he
Jordanian G overnm ent refers to an am endm ent to the T ransjordanian Defence Rgulations
(1935) enacted by the Jordanian G overnm ent w hich m ade these Rgulations applicable to
territories occupied by the Jordanian A rm y (16 M ay 1948), and to an O rder issued by the
Jordanian M ilitary Com m ander (24 M ay 1948) stating that the Palestine lgislation shall be
continued to rem ain in force with the exception o f the provisions contradicting the Jordanian
Defence Rgulations.
(125) See e.g. M a r t in , P.M., op. cit., p. 278.
(126) This policy has already been introduced in 1967 with the erection o f a security belt o f
N ah als (settlement for m ilitary purposes) along the floor o f the Jordan valley, it then
progressively expanded into the establishm ent o f a series o f real civilian settlem ents (even
outside the borders o f Palestine or Eretz Yisrael, to reach a dram atic escalation in the
summer o f 1977, shortly after the Begin governm ent had taken office. T his escalation was caused
by the legalizalion o f a n u m b e ro f wild cat settlements. See i.a. M o n r o e , E., the West B a n k :
Palestine or Israeli ?, 31 M iddle E ast J., 1977, nr 4, esp. p. 398-401.
See also V a n A g g e l e n , J.G .C., op. cit., esp. p. 109-110. This policy has been strongly
denounced by an overwhelming m ajority in the U .N . G eneral Assembly in Res. A /3 2 /5 o f 27
October 1977. The G eneral Assembly instructed Isral to desist forew ith from taking any action

ISRAL AND PALESTINE

531

especially then of arts. 33,49, 53, stating that it is expressly forbidden for the
belligerent occupant to transfer parts o f his own population into the territory
that he occupies. Such acts, which have to be interpreted as those o f an holder
of the supreme title be it not o f the sovereign title , are norm ally
justified by the Israeli authorities in referring to the theory o f the better
title (127), which is, as we extensively proved, devoid o f any basis in
international law (128).
As we have already m entioned it in our introduction, Isral has not officially given up its claim to sovereignty over the West Bank and the G aza
Strip. The Camp David accords-cadre for peace in the M iddle East still leave
this question open (129).
that would resuit in ehanging the lgal status of the occupied territories, including E ast Jerusa
lem. A simiiar statem ent was on th at occasion issued by the Belgian U .N . A m bassador as official
reprsentative o f the E uropean Com munity. The Belgian A m bassador pointed out correctly that
Israels presence in the territories occupied since 1967 was nothing m ore but that o f a bellige
rent occupant , see U .N. M onthly Chronicle, 10, 1977, p. 8.
See also Letter from the State Department Lgal Advisor concerning the Legality o f Israeli
Settlements in the Occupied Territories, XVII Int. Leg. M aterials, vol. 3, 1978, p. 777-779, in
which Isral is explicitly described as a belligerent occupant and the interests and the protection
of the civilian population are implicitly cited as overriding any Israeli better title claims.
(127) This theory of better title is indeed the m ajor justification p u t forw ard by Isral for
its policy on settlements in the occupied territories. See the dclaration by the Israeli U .N .
Am bassador Ch. Herzog on 26 October 1977 in the G eneral Assembly, U.N. M onthly Chronicle,
10, 1977, p. 6-7. Although there is still a strong tendency present w ithin the Israeli G overnm ent
favouring an extension o f Israeli sovereignty over the W est Bank and G aza, a som ewhat m ore
m oderate viewpoint, a brainchild o f Foreign M inister M oshe D ayan, nam ely that of an hori
zontal partition of sovereignty between the State o f Isral and the local inhabitants of the W est
Bank and Gaza seems to prevail for the tim e being, this thesis fits equally well into the better
title theory; see K y le , K ., op. cit., p. 344-345.
Nevertheless in the light o f the perm anent character o f most o f the settlem ents and the
pronouncem ent of Israeli leaders to the effect that they are perm anent, the International
Commission o f Jurists, Israeli Settlements in Occupied Territories, 19 the Review, 1977, p. 30,
state that it would seem naive to regard this policy as anything other than a step towards eventual
assertion o f sovereignty over these territories.
F or further references to Israeli G overnm ent statem ents on the better title principle, see
e.g. the Israeli M inister of Justice S h a p ir o , Y.S., 27 June 1967, 49 Records of K nesset Proceedings, p. 2420; B l u m , Y.Z., Z ion was R ed eem ed in International Law , 2 7 H a Praklit, 1971, p.
315 (inH ebrew ). M o n r o e , E., op. cit., p. 401; T o m m e r , Y., op. cit., p. 79, this last a u th o r quotes
Prime M inister M enachem Begin who declared, after the January 1978 m eeting o f the jo in t
Egypto-Israeli political commission in Jerusalem , that, if Egypt rejected IsraePs term s, the Israeli
Governm ent would feel legally justified... in m aking unilatral territorial adjustm ents in accor
dance with international law governing territories taken in a war o f self-defence. It is n o t clear
whether this would also include an annexation simply based on law ful conquest, in addition
to the m ore sophisticated principle o f better title .
An understanding (not published) envisages that, after the signing o f the C am p D avid
agreements on a framework for peace in the M iddle East, during the w hole negotiation and
transition period o f 5 years no new Jewish settlem ents will b e set up in the occupied W est Bank
and Gaza. M. Begin, however, declared for the cam ras of the A m erican Broadcasting C orpo
ration (A.B.C.) that the Israeli G overnm ent was stricto sensu only bound by a period o f 3
months, the negotiation period for a peace treaty with Egypt, see T a t u , M., les premires
dissonances isralo-amricaines , le M onde, 20 Septem ber 1978, p. 4.
(128) See supra (3).
(129) See supra (34).

532

FRANK L.M. VAN DE CRAEN

CHAPTER IV. TH E PALESTINE PEOPLES R IG H T TO

SOVEREIGNTY N O T ANY LO N G ER IN SUSPENSION
AND ITS CONSEQUENCES F O R ISRAELS PRESENCE
IN PA L E ST IN E

A. THE PALESTINIA NS RIG H TS TO SO V EREIG N TY A N D IN D E P E N D E N C E

ESTABLISHED A N D R E C O G N IZE D IN IN T E R N A T IO N A L LAW

W hen the right o f the Palestinians to self-determ ination was recognized by

the U nited Nations in the 1947 partition plan for Palestine, it was not so
much done on the basis o f the C harter principles on self-determ ination (arts.
1 (2), 55), as o f the compliance with the term ination of the M andate and the
granting o f the independence (130). T hat the right o f the Palestinians to
sovereignty rem ained in a state o f inertia for over two decades, was the
direct consquence of their refusai to exercise it within the fram ework o f the
partition plan and the subsquent filling o f the sovereignty vacuum by
Isral, Jordan, and Egypt. F or the U nited Nations they had become refugees , only the Arab League kept on recognizing them as a national entity,
but it was not until the mid-sixties that they were able to affirm or re-affirm
their identity among the A rab nations (131). In the afterm ath o f the Six D ay
War, in which the last Palestine territories had been occupied by Isral,
the Palestine Peoples national identity received a shock b u t at the same time
also got a boost that would enable them to present their case in the forum o f
the W orld Organization (131). It is indeed from 1969-1970 on that the
Palestinians were reborn as a people and that their right to self-determ i
nation has been uninterruptedly proclaimed and recognized by the U nited
Nations (132).

(130) See e.g. T o m e h , G., When the U.N. Dropped the Palestine Question, 4 J. Palest. St., n r 1,
1974, p. 15-30; B e r t e l s e n , J.S., op. cit., p. 13-25; B a s s io u n i , M .C ., Setf-Determinalion and
the Palestinians, Proc. A.S.I.L., 1971, p. 34-35; F is h e r , R.A., op. cit., p. 232-233; M c C l e a r y H.
S a n b o r n , the Question o f Palestinian Statehood Exem plifies the Inconsistencies o f the R equire
ments o f Statehood, 7 C alif. W estern Int. L.J., 1977, p. 460.
(131) See e.g. M u s h k a t , M ., Global versus Sovereign Oriented Approaches in Contemporary
International Law and Some Problems o f the M iddle East Conflict, 16 Intern. Probl., 1977, p. 46.
(132) See e.g. A r m a n a z i , G., op. cit., p. 91-93; M a l l is o n W .T . and M a l l is o n , S.V., the Rle
o f International Law in Achieving Justice and Peace in Palestine-Israel, 3 J. Palest. St., n r 3, 1974,
p. 83-84. Even more im portant than the first G.A. resolution on the right to self-determ ination of
the Palestinians (Res. 2535 B [XXIV]), is the G.A. Res. 2672 C (XXV) of 8.12.1970, G A O R ,
suppl. 28 (A/8028), p. 73, in which for the first time a clear link is established betw een the
Palestinian right to self-determ ination and their right to return to Palestine.
See also for the U.N. practice on the Palestine right to self-determ ination, C a t t a n , H., op. cit.,
p. 217-221. The right to self-determ ination o f the Palestine People is n o t only em phasized by a
continuing U.N. practice o f nearly a decade now, the resolutions dealing with the Palestinian
self-determ ination have also been adopted with a large m ajority, consequently, an opinio juris
communis can be said to have emerged, adding to the im portance o f this right in international
law.

ISRAL AND PALESTINE

533

The gnral principle o f self-determ ination can definitely not be equated

with the right to separate statehood as such. However, in the case o f the
Palestine People a different appraisal needs to be m ade, indeed, their right to
sovereignty was already explicitly recognized in the Partition Plan of 1947.
Consequently, we have consistently used their right to sovereignty and their
right to self-determination as terms with equal lgal bearing. This, however,
does not mean that their right to self-determ ination, although from
1969-1970 on in a new and decisive era o f wide rcognition, was im m ediately
conceived as an explicit right to statehood. It took until 1974 before the
United Nations General Assembly would reiterate the Palestinian right to
independence with the sam e strength as it had done in the Partition Resolu
tion of 1947 (133). Nevertheless, there still rem ained an uncertainty as to the
actual exercise of this right to sovereignty. In order to work out concrete
guidelines for this purpose, a Com mittee on the Inalinable Rights o f the
Palestinian People was established by the G eneral Assembly in 1975 (134).
This Committee confrmed the Palestinians right to sovereignty and in
dependence over the West Bank and the G aza Strip, but was of course
confronted with Israels well established status in the territories seized in
excess o f in partition plan in the 1948-49 W ar, although Israels position there
is not that o f a sovereign , bu t only that o f a trustee as we scrutinized it
above. As far as these territories are concerned, the Committee, on the one
hand, appraises the Palestinian right to self-determ ination as a right to return
to these areas, on the other hand however, it favours a rcognition o f Israels
sovereignty over these territories by the Palestinians. These would then be
entitled to fully enjoy their civil and political rights, n o t only there, but in the
As far as the right to self-determ ination of peoples is concerned, there is no d oubt that its
pre-em inent character as a principle o f contem porary international law has by now becom e
widely accepted. N ot only did it play a decisive p a rt in the whole decolonization process, but it
was equally embodied in such im portant lgal docum ents as the U .N. Covenants, respectively on
Civil and Political Rights, and on Economie, Social, and C ultural Rights (G.A. Res. 2200 (XXI)
of 16 Decem ber 1966), which cam e into force on 23.3.1976 and on 3.1.1976, see G A O R, suppl.
16, (A/6316), p. 49-60 and U.N. DO C. (S T /L E G /S E R / D /10); and in the D claration o f
Principles o f International Law on Friendly Relations and Coopration Am ong N ations (G.A.
Res. 2625 (XXV), 24.10.1970), GAOR, suppl. 28 (A/8028), p. 121-124. T he right to self-determ ination o f peoples, however, cannot be equated with the right to sovereignty and indepen
dence (statehood) belonging to every single people in the world. The 1970 D claration o f
Principles o f International law Concerning Friendly R elations expresses this very clearly in the
so-called saving clause (para. 7) in its self-determ ination section. A like statem ent can be found
as one o f the principal conclusions in the end report o f special rapporteur H. Gros-Espiell (U.N.
Sub-Commission on H um an Rights on the Prvention o f D iscrim ination and the Protection o f
Minorities), who undertook an extensive study on the im plem entation o f the right to self-determination in the U.N. practice, see E /C N 4 / Sub 2/377, p. 22. This standpoint is also upheld by
the W orld Court, see e.g. the Western Sahara Order, Advisory Opinion, I.C.J. Reports, 1975, p. 3
at 31-33.
(133) See G.A. Res. 3236 (XXIX), 22.11.1974, suppl. 31 (1), (A/9631) p. 4. See also C a t t a n ,
H., op. cit., p. 219. The author states i.a. that the G eneral Assembly laid down the true guidelines
for a solution o f the Palestine problem .
(134) See G.A. Res. 3376 (XXX) 10.11.1975, G A O R, suppl. 34 (A/10043), p. 3.

534

FRANK L.M. VAN DE CRAEN

whole State o f Isral. Even the original Jewish State o f the partition plan
would have had a large A rab Palestinian population (135). These proposais
have also been endorsed by the G eneral Assembly (136).
The right to self-determination o f the Palestine People is in that sense
unique in that it is probably the only case o f a well established rcognition o f
a right to sovereignty and independence o f a people who live for the greater
part outside their national homeland. It was then also one of the m ain
purposes of this study to prove that their right to sovereignty, as it existed on
the mom ent of the birth o f Isral in 1948, has not become extinct, on the
contrary, that it has been reinforced in its lgal validity. Nevertheless, the fact
that the Palestinians are not in the possession of the territories they are legally
entitled to, puzzles m any international lgal scholar while appraising their
international status. On the one hand, they have to conclude that the Pales
tine Liberation Organization as the official reprsentative of the Palestinian
People possesses a defnite international lgal standing; on the other hand,
they are very reluctant to depict Palestine as a state in statu nascendi
(137). The basic elements o f a defined people and even o f an established
authority can be said to be present, however, there is as yet no possibility to
vest a sovereign title in the Palestinians over Palestine territory. M oreover, the question over which Palestine territories the Palestinian People
are indeed entitled to exercise their sovereignty rights, has up to now unfortunately not been thouroughly examined in its global perspective. By delineating Israels territorial title, we have shown what represents the actual
(135) See the most recent report o f the Com m ittee on the Exercise o f the Inalinable Rights o f
the Palestinian People, GAOR, 32th Sess., suppl. 35 (A /32/35), esp. p. 11-13.
(136) See the last resolution o f the G.A. on the Palestine Question, A /R es. 32/40,15.12.1977,
p. 2.
(137) S e e e.g. V e r h o e v e n , J., la reconnaissance internationale dans la pratique contemporaine,
Paris, 1975, p. 164; F is h e r , R.A., op. cit., p. 247-249; R o u s s e a u , Ch., op. cit., III, 1977, p. 611;
SiLVERBURO, S .R ., the Palestine Liberation Organization in the United Nations, 12 Isral L.R.,
1977, p. 365-392; V e r d r o s s A. und S im m a , B., Universelles Volkerrecht, Berlin, 1976, p. 213-214.
Nevertheless, M c C le a r ly H . S a n b o rn , op. cit., p. 463-472, favours a quasi-state standing
of Palestine based on a very progressive approach o f international law. See also B e r te ls e n ,
J.S., op. cit., p. 25-35, who states that since the Six D ay W ar the possibility is present for the
Palestine People to becom e a nation state . According to the author, however, two basic
obstacles have not been obviated as yet : doubts about the all-representative character o f the
P.L.O., and the territorial dlination o f such a Palestinian state; P r i l l , N.J., die A nerkennung
der P.L.O. durch die Vereinten Nationen, 59 Die Friedenswarte, 1976, p. 208-225, in which he
states that especially since the P.L.O. has been invited to participate in Security Council debates
on the Palestine question from January 1976 on, the P.L.O. status in the U nited N ations can
be equated with that o f a state which is a non- U .N . m em ber. The S.C. im plem ented thereby
the equal footing principle fo r ail parties involved in the M iddle E ast conflict, including the
Palestine non-state nation, as p u t forward by the G.A. in Res. 3375 (XXX) o f 10.11.1975. T he
author argues also in support o f a state in statu nascendi status for Palestine , presently
endowed with a sui generis form o f international lgal personality. F o r this equal footing
principle, see also the rcognition o f the P.L.O.s right to reply in the G.A. debates on the
Palestine question, which clearly exceeds a norm al observer status, U.N. Chronicle, 10, 1977, p.
72. The first U.N. instance to grant the P.L.O. a full m em ber status is the Econom ie Com m ission
of the U.N. for W est Asia, see E /R e s/2 0 /8 9 (LXIII), 1977.

ISRAL AND PALESTINE

535

territorial title o f the Palestinians. The recent U.N. practice and more speci
fically the proposais o f the U.N. Com mittee on the Inalinable Rights o f the
Palestinian People to a great extent confirm our findings, with that diffrence
nevertheless, that the pre-June 1967 borders would be considered as the de
jure dlination of the State o f Isral. This w ould m ean a second partition
of Palestine which cannot this time be effected within the fram ework of
the m andate system, consequently, the Palestinians m ust agree to it.
Palestine may as yet not be a state in statu nascendi , its peoples
right to sovereignty and independence is not in suspension anymore, but
is more alive than ever.

B. TH E CON SEQUENCES F O R ISRA ELS STATUS

IN ALL OCCU PIED PA LESTIN E. TER R IT O R IE S

As neutral belligerent occupant vis--vis Jordan and Egypt, Israels

position was frozen by the cease-fire agreements, consequently, no
withdrawal from occupied territories was necessary as long as no peace treaty
had been concluded.
The im portant new factor o f the revival of the Palestinians right to sove
reignty obviously compels us now to change our lgal appraisal o f Israels
status in the West Bank, including East Jerusalem and Gaza. Isral has
indeed become the m ain im pedim ent for the realization o f that right. A
continuing occupation o f these territories constitutes a violation o f interna
tional law, not as such on the basis o f the belligerent occupation, b u t because
it prevents a people to exercise their inalinable rights to sovereignty, n a
tional independence, and retum , consequently, international law requires an
immediate withdrawal (138). While Israels status as de facto sovereign in
West Jerusalem (although it claims de jure sovereignty) is not as such
affected seen the continuing U.N. commitment for internationalization,
Israels position as trustee in the territories seized in the 1948-1949 W ar (it
equally claims outright sovereignty here) cannot be m aintained either. H o
wever, in this case we are practically confronted with a fait accompli of
annexation (139). If we draw the strict conclusions from our lgal assessment,
we cannot but subm it that Isral has to withdraw to its borders as delineated
in the 1947 partition plan. In practice, however, this would lead to the
dismemberment o f Isral with far-going consquences as to the future
viability of the Jewish State. Nevertheless, the lgal principles are clear
and render a hard verdict in the case o f Israels continuing presence in the
Palestine territories seized or occupied in excess o f the 1947 partition
plan, its presence constitutes a breach of international law.
(138) This is clearly stated in the report o f the U.N. Cttee on the Inalinable Rights o f the
Palestine People (endorscd by the G eneral Assembly), see supra (135) and (136).
(139) It has not been the purpose o f this study to present a detailed exam ination o f IsraePs
non-compliance with its lgal status o f trustee or de facto sovereign.

536

FRANK L.M. VAN DE CRAEN

Although the Israeli Governm ent has now accepted the principle o f the
respect for the legitimate rights o f the Palestine People in the West Bank
and the G aza Strip (140), two principal factors still fail to appear in this
framework for a M iddle East peace as worked out during the Septem ber
1978 Camp David summit. Firstly, these legitimate rights are too vaguely
described as a right to full autonom y during a transition period o f 5 years, but
no commitment has been m ade for the period thereafter. M oreover, Israels
Prime M inister M. Begin declared that, after the transition period has lapsed,
Israeli troops will rem ain stationed in these rgions and that no other military
presence will be tolerated (141). This interprtation has been given with in
the background the still not effected Israeli renunciation o f ultim ate sove
reignty over the area. On the other hand, President Sadat, who agreed to the
fact that this was the m ajor concession on behalf o f the Arabs, adheres to a
very strict interprtation o f the Cam p David documents, stating that only on
the basis of m ultilatral negotiations between the parties involved, ni. Egypt,
Isral, Jordan, and the Palestinians, an ultimate status for the West Bank and
Gaza can be worked out, based on the legitimate rights of the Palestine
People (142). Secondly, the concept o f Palestine People lacks the neces
sary prcision, the Cam p David documents only refer to a reprsentation
consisting o f the Palestinians living in G aza and the W est Bank or also
outside these territories. N o m ention whatsoever is m ade o f the P.L.O. as
such, nevertheless, the widely recognized official reprsentative o f the P a
lestine People. This does, however, not exclude that individual P.L.O.
reprsentatives can participate in the negotiations. Seen the fact now that ail
the four parties must find a consensus for the way in which the negotiation
process has to be conducted, Isral retains a right to veto any too strongly
P.L.O. oriented Palestinian reprsentation (143). This is definitely a great
weakness in the Camp David agreements since peace without the P.L.O. is
not possible (144).

(140) See Cam p D avid Agreements, fram ework for peace in the M iddle East, D ocum ent
1, art. 1 (c), le M onde, 20 Septem ber 1978, p. 6; N eu Z rcher Zeitung, 21 Septem ber 1978, p. 4 (in
German).
(141) See T a t u , M., les premires dissonances isralo-amricaines , le M onde, 20 Septem
ber 1978, p. 4. O n the Israeli side this interprtation is considered to be in accord with the S.C.
resolutions 242 and 338 since the Israeli troops will be withdrawn to zones agreed upon by the
parties, hereby failing to recognize the fact that the aforem entioned resolutions do not deal with
the type o f withdraw al but with the withdraw al tout court , unless the parties agree
otherwise.
A m uch clearer interprtation o f these legitimate rights has been given by hte E uropean
Community in the dclaration of 27 June 1977, the nine E.C. governments spoke out in favour o f
a hom eland for the Palestinians, they reiterated the sam e policy statem ent after the Cam p
David sum m it in a joint dclaration o f 19 Septem ber 1978, see le M onde, 21 Septem ber 1978..
(142) See T a t u , M., les premires dissonances isralo-amricaines , le M onde, 20 Septem
ber 1978, p. 4.
(143) Neue Zrcher Zeitung, 20 Septem ber 1978, p. 1.
(144) See the very negative reaction o f the P.L.O., le M onde, 21 Septem ber 1978, p. 3.

ISRAL AND PALESTINE

537

The Camp David peace framework pretends to rely on the principles

embodied in the S.C. resolutions 242 and 338. This is not fully in accordance
with the truth, especially not as regards the Palestine occupied territories.
It is surely a positive development that Isral pledges to withdraw a part o f its
troops in these rgions, to redeploy the rest in specific security zones
(145), and to guarantee the local inhabitants a full internai autonom y, hereby
de facto relinquishing its adm inistration over the area. Nevertheless, this
is still far from a complete withdrawal and renunciation of title be it with
the necessary security arrangements . W hether this will ever take place is
still uncertain, cf. Premier Begins views as stated above.
Finally, an often overlooked point is the fact that the 1949 armistice
boundaries are not the de jure borders of the State of Isral as we have
amply proved. The Camp David documents consider the dlination of
Isral based on these 1949 armistice agreements (or the pre Six D ay W ar
borders) as a de jure self-evident fact which is out of discussion. As we
have extensively proved, this 1949 dlination can only be established on a
de jure basis with the consent o f the Palestinians, this indispensable
consent has not been given up to now.

CONCLUSION
This study has basically been conceived as a global and critical answer to
ail these theories which try to argue in favour of Israels territorial sovereignty
beyond the borders foreseen for the Jewish State in the Partition Resolution
of the General Assembly of 29 Novem ber 1947.
A prom inent part in this study has in that regard been reserved for a doser
examination of the lgal status of the Palestine People. In the beginning they
only possessed a non-exercisable right to sovereignty, a right in sus
pension . In the actual state o f affairs, however, they are clearly vested with
an exercisable right to statehood. Israels lgal status in Palestine would
have been much more easily defnable if the Palestinian fact h ad simply not
existed, or at least if the Palestinians had ceased to possess an own national
identity, absorbed by the neighbouring A rab countries, silently acquiescing
in IsraePs territorial title to Palestine . However, this not being the case,
and confronted with one of the juridically best established cases o f rcogni
tion of a peoples right to statehood, a regularization or legalization of
Israels presence in Palestine is m ore necessary than ever in order not to
end up in a lingering and most undesirable violation of the international lgal
order. In this regard we refer especially to the unpalatable consquences of
South Africas illgal presence in N am ibia.

(145)
See Cam p D avid Agreements, fram ework for peace in the M iddle East, Document
one on the West B ank and the Gaza Strip, art. 1 (b), le M onde, 20 Septem ber 1978, p. 6, N eue
Zrcher Zeitung, 21 Septem ber 1978, p. 4.

538

FRANK L.M. VAN DE CRAEN

A legalization can only be based on a just appraisal of the political

realities in the M iddle East, and in that case, without going into a political
assessment o f the situation since this is not within the scope o f this study, we
can, nevertheless, subm it that there exists a clear necessity to regularize
Israels status in the territories seized outside the terms of the Partition Plan
and delineated by the 1949 armistice agreements. In order to bestow a
sovereign title on Isral in these territories, the present holder o f sovereign
title, the Palestine People, has to agree to it by means of a rcognition, or even
a simple acquiescence.
Such an adjustm ent can o f course only be reached within the fram ework of
a global and durable peace settlem ent between Isral on the one hand, and its
Arabs neighbours and the Palestine People on the other hand. In the Cam p
David peace framework for the M iddle East this basic point was not even
subject o f the discussion as it was deem ed to be self-evident that Isral is
entitled to full sovereignty in these territories. Besides that, the ultim ate
status o f the West Bank and the G aza Strip remains unclear, if Isral does not
renounce ail better title claims, does not commit itself to a full military
withdrawae, taken into considration the necessary security prcautions as
for example worked out for the Sinai, and finally if the Palestine People, in
the first place represented by the Palestine Liberation Organization, does not
participate in the peace process, no final, just, and durable settlem ent will be
reached. In an ultim ate settlement one principle m ust occupy a central place,
namely the inalinable right o f both peoples, Jewish and Palestinian, to
freely determine their political status and to pursue their economic, social,
and cultural development on Palestine soil.
Concluded on September 21, 1978.