Who has the sovereign rights to the West Bank?

International law stipulates two rules for determining dominion over land: the transferal of a territory from one sovereign to another and the rights to determination of the people living on it. And therein lies the rub...

west bank road 311 (photo credit: Ariel Jerozolimski)
west bank road 311
(photo credit: Ariel Jerozolimski)
Israel is not likely to ever ask an international tribunal or arbitrator to decide the legal question as to who has sovereign rights in the West Bank. Countries do not submit issues of fundamental national importance to international adjudication. However, both Israel and the Palestinians try and buttress their negotiating positions by heavily relying on international law.
The legal arguments and counter-arguments are relevant because the Israel-Palestinian dispute is played out on the world stage with other countries and the UN acting as kibitzers. Needless to say, a position promoted by one side that is viewed as illegal under international law will receive no support from the international community.
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A claim of right to territory in modern international law has to be founded on one of two bases. Either the territory had to have been transferred by a previous sovereign, or else prescription applies; this means that the state has been peacefully applying its sovereign rights to the territory over a long period and other possible claimant-states have acquiesced to such application of sovereignty. A third rule is that the population of non self-governing territories is entitled to self determination. There has been no international acquiescence to Israeli rule in the West Bank so the two determining factors are whether there was a transfer of sovereignty from a previous sovereign and the rule of self determination.
The crux of Israel's claim of right is that the only recognized previous sovereign of the West Bank was the Ottoman Empire. At the end of the first world war, the Ottomans waived their rights in favor of France and Britain, the victorious allies. In 1922 the allies agreed that Britain administer the whole of Palestine in accordance with the League of Nations’ Mandate of the Council which called for the establishment of a Jewish national home in Palestine. The preamble of the mandate stated that "recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country."
The operative terms declared, "the Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home…and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.” The Mandate referred to the political rights of the Jewish people but to the civil and religious rights of the local Arab population. The background to this distinction was the idea that the Arabs would be exercising political rights in the new Arab states bordering Palestine while Palestine was to be designated as a future Jewish national home. The document stipulated that the British Mandatory Authorities "facilitate Jewish immigration under suitable conditions" and encourage "close settlement by Jews on the land including state lands and waste lands." The 1922 mandate excluded the area that is now the Kingdom of Jordan. However, the area of the West Bank was included. Hence, international law recognized that the right of the Jewish people to establish a Jewish national home was also applicable to the area of the West Bank.
Nowadays however, the West Bank is not considered an integral part of an existing state. The majority of the population of the West Bank is Palestinian Arabs who under modern international law are entitled to the right of self determination.
It therefore follows that there are two conflicting claims of right. If an agreement to establish a Palestinian state is reached, Israel will be called upon to relinquish legal claims of right in the West Bank and accept the rights to self determination of Palestinians living there . Israel will do so with the knowledge that it is making a political decision to relinquish its own rights in order to achieve a political settlement of the dispute. The border will need to be negotiated and it is reasonable for Israel to demand that the Palestinians will need to accept the Jewish right of self determination in the State of Israel.
The writer teaches international law at Hebrew University and is a former legal adviser to the Foreign Ministry.