Proponents of fairness and equity who have advocated against some of Israel’s most pernicious detractors have often advanced several well-reasoned arguments against further Israeli West Bank withdrawals and Palestinian statehood. Key among those arguments are that the Palestinian leadership is rejectionist, duplicitous, incites violence, is non-democratic and, in general, is not committed to a two-state solution recognizing Israel’s rights to exist within safe and secure boundaries. While all of these positions are accurate and by themselves would constitute sound reasoning to reject additional Israeli territorial concessions, there exits one reason above all others that favors the Israeli viewpoint; simply that Israel’s legal claims to the West Bank are far superior to those of the Palestinians’ under international law.
International laws are generally created by nations when entering into treaties with one another or more informally, through international custom. General Assembly resolutions have no binding legal authority. In fact, the United Nations charter which spells out the powers of the General Assembly does not convey rule-making powers to that body.
Israel’s legal claims to the West Bank are rooted in the San Remo Conference of 1920, an international meeting of the post-World War I Allied Supreme Council. On July 24, 1922 the League of Nations, the precursor to the United Nations and a body which, under its charter had the authority to enact international laws, confirmed decisions hammered out at San Remo and resolved to establish the League of Nations Mandate for Palestine.
The League’s preamble, adopting the principles enumerated in the Balfour Declaration, recognized the Jewish “historical connection” to the Land of Israel and resolved to help facilitate the establishment of a Jewish nation there. At the time, Palestine consisted of land east and west of the Jordan River, encompassing all of modern Israel, Judea & Samaria, Gaza and what is referred to today as Jordan. The League entrusted Britain with being the mandatory authority whose aim would be to facilitate Jewish immigration to Palestine and to act as trustee until an orderly transition could be made to full Jewish sovereignty.
Article 5 of the Mandate prohibited Britain from ceding or leasing any part of the mandate territory to a foreign power. However, in 1923, Britain acting in contravention of Article 5 did precisely that and despite Jewish protest, gifted Eastern Palestine to Emir Abdullah thus creating a new Arab entity called Emirate of Transjordan. In so doing, Britain ceded 76% of Palestine to Arab rule leaving a paltry 24% for a Jewish homeland.
In February 1947 Britain announced that it would unilaterally terminate its mandate thus setting the stage for UN intervention. Following Britain’s announcement, the UN sent a team of international observers, known as UNSCOP, to Palestine to investigate and suggest a blueprint for the future of the territory and its inhabitants. After completing its investigation, UNSCOP formulated a plan, based on demographic patterns that involved the partition of Palestine into Jewish and Arab states on roughly a 50-50 basis. Jerusalem and its environs were to be designated international zones.
In November 1947, the UN adopted UNSCOP’s findings and voted in favor of the partition. The UN General Assembly’s partition plan was merely a suggestion and had no legal binding authority. The Jews accepted the partition plan and the Arabs flatly rejected it, setting the stage for the first Arab-Israeli War and an Arab invasion.
Had the Arab’s accepted the partition, international boundaries between Jewish and Arab states would have been established and the matter settled. In the absence of such a settlement, the only legal, binding authority was the League of Nations Mandate for Palestine, which designated the whole of Palestine, including the West Bank, as the future Jewish homeland.