Israeli settlements’ legal basis: Opposing view
Alan Baker 7:36p.m. EST January 23, 2013
Reprinted from USA Today
Territories are no more than "disputed" pending a negotiated solution.
(Photo: Dan Balilty, AP)
- Jewish people are, for more than 3,000 years, the indigenous people in the region.
- Add to this the legal rights granted to the Jewish people by the 1917 Balfour Declaration.
- Even so, Israel committed itself to negotiate the fate of the area with the Palestinians.
The oft-used term "occupied Palestinian territories" has no basis whatsoever in law or fact. The territories are neither occupied nor are they Palestinian. No legal determination has ever been made as to their sovereignty, and by agreement between Israel and the Palestine Liberation Organization, they are no more than "disputed" pending a negotiated solution, with both sides claiming rights to the territory.
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Israel has solid legal and historic rights to the territory, in light of the undeniable historic fact that the Jewish people are, for more than 3,000 years, the indigenous people in the region, including the source of Christianity there. Add to this the legal rights granted to the Jewish people by the 1917 Balfour Declaration, the 1923 San Remo Declaration, the League of Nations Mandate instrument and the United Nations Charter.
Israel has thus a very well-based claim to sovereignty over the area, more so than any other people, but has nevertheless committed itself to negotiate the fate of the area with the Palestinians.
Further to Israel’s solid basis of rights to the territory, the Oslo agreements with the Palestinians contain no prohibition whatsoever on building settlements in those parts of the territory agreed upon as remaining under Israel’s control.
Israeli settlements are built on public land that is not owned by Palestinian residents of the area, and their construction is in full accordance with the norms of international law regarding the use of land in disputed situations.
Furthermore, the prohibition of mass transfer of populations to occupied territory as set out in the 1949 Geneva Convention is not applicable, and was never intended to apply to Israel’s settlement policy. It was drafted to prevent the mass transfers as carried out by the Nazis in World War II.
Accordingly, as long as settlements do not violate local Palestinian private property rights, and as long as the issue of the fate of the areas remains a negotiating issue, there is no legal basis for preventing continued settlement, pending the outcome of the final status negotiations.
Alan Baker is the director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs. He formerly served as a legal adviser to the Israeli Foreign Ministry and as Israel’s ambassador to Canada.