Wednesday, May 25, 2011

  • Wednesday, May 25, 2011
  • Elder of Ziyon
What makes the West Bank "Palestinian territory?"

Jordan held onto the West Bank from 1949 to 1967, and between 1967 and 1988 many people considered it "Israeli-occupied Jordan." 

This is problematic for a number of reasons. The main reason is that the international community in general never recognized as legal Jordan's annexation of the territory to begin with. However, during that time period it cannot be considered "Palestinian" (in the sense of Palestinian Arab) either, because the Palestinian Arab leadership rejected the partition plan and never declared a state on that territory. It was essentially in limbo. 

But for argument's sake, let's say that Jordan's annexation of the territory was legal. 

In 1988, Jordan ceded that territory, no longer under its control,  to the PLO, and stripped citizenship from West Bank Palestinians. 

Is that cession legal?

According to International Law: a treatise, Volume 1, here are the laws of cession:

Cession of State territory is the transfer of sovereignty over State territory by the owner-State to another State. There is no doubt whatever that such cession is possible according to the Law of Nations, and history presents innumerable examples of such transfer of sovereignty. The Constitutional Law of the different States may or may not lay down special rules 1 for the transfer or acquisition of territory. Such rule  can have no direct influence upon the rules of the Law of Nations concerning cession, since Municipal Law can neither abolish existing nor create new rules of International Law.” But if such municipal rules contain constitutional restrictions on the Government with regard to cession of territory, these restrictions are so far important that such treaties of cession concluded by heads of States or Governments as violate these restrictions are not binding.” 
Since cession is a bilateral transaction, it has two subjects-namely, the ceding and the acquiring State. Both subjects must be States, and only those cessions in which both subjects are States concern the Law of Nations. ...
It seems very clear that one cannot legally cede territory to an entity that is not a state. I cannot see how Jordan's cession to the PLO has any legal validity.

For a territory to be occupied, it must belong to a state. While it seems clear that the humanitarian aspects of occupation must still be adhered to, but to consider it a legal occupation requires that the occupied territory be claimed by a state. (Again, this is for argument's sake; Israel did not consider itself an occupier even before 1988 and considers the territory disputed.)

In fact, Jordan's "cession"  might be a case of legal dereliction:

Dereliction as a mode of losing territory corresponds to occupation as a mode of acquiring it. Dereliction frees a territory irom the sovereignty of the present owner-State. It is effected through the owner-State completely abandoning territory with the intention of withdrawing from it for ever, thus sovereignty over it. Just as occupation requires, first, the actual taking into possession (corpus) of territory, and, secondly, the intention (animus) of sovereignty over it, so dereliction requires, first, actual abandonment of a. territory, and, secondly, the intention of giving up sovereignty over it. Actual abandonment alone does not involve dereliction as long as it must be presumed that the owner has the will and ability to retake possession of the territory. Thus, for instance, if the rising of natives forces a State to withdraw from a territory, such territory is not derelict as long as the former possessor is able, and makes efforts, to retake possession. It is only when a territory is really derelict that any State may acquire it through occupation. History knows of several such cases. But very often, when such occupation of derelict territory occurs, the former owner protests, and tries to prevent the new occupier from acquiring it.

If Jordan's washing its hands of the West Bank is in fact a case of dereliction, then Israel's occupation is quite legal, at least since 1988 (again assuming that Jordan's annexation was considered legal to begin with - if it wasn't, then the territory has no state anyway.)

There may be one way that Jordan's action has some legal validity: if it was not a cession, but a secession by the Palestinian Arabs from Jordan. This is in fact how King Hussein phrased the topic when he announced Jordan's move in July 1988:

Arab unity between any two or more countries is an option of any Arab people. This is what we believe. Accordingly, we responded to the wish of the Palestinian people's representatives for unity with Jordan in 1950. From this premise, we respect the wish of the PLO, the sole and legitimate representative of the Palestinian people, to secede from us as an independent Palestinian state.
But, as far as I can tell, there needs to be some sort of legal agreement between the two parties, the one that is seceding and the original state. I cannpt find any such document. The PLO's official declaration of statehood was not done at the time of this announcement but on November 15, 1988. Jordan's move was not bilateral but unilateral. Only three days prior, Jordan stopped a $1.3 billion development program in the West Bank; there is no indication that this was done in concert with the PLO.

So while Jordan uses the language of secession, in reality it appears - and seems to be regarded - as a case of cession instead, which, as we see, is problematic and might be closer to dereliction.

Once again, I stress that I am not a lawyer, and could be way off base here. But I can't find anyone who talks about the legality or legal consequences of Jordan's actions in 1988. And I cannot find any possible legal justification for calling the West Bank "Palestinian territory."

UPDATE: A well-known international law expert pointed that I have no idea what I am talking about. :)

In short:
Stripping away the issues of belligerent occupation, I’m not sure you have a coherent, let alone cogent, argument. The Palestinian claim to sovereignty is generally couched in terms of self-determination, not cession from the Jordanians. Even if it were phrased as based on cession from the Jordanians, the Palestinians would argue that it is possible to cede rights to a state in statu nascendi. In addition, if you accept the validity of Blum’s argument, you should understand that it works in both directions; the Palestinians do not have to claim a classic mode of acquisition in order to claim superior title. In other words, even if one asserts that the Jordanians had title and then abandoned it, with no ability to cede it to anyone, the Palestinians could still have superior title to Israel.

I can't say I understand it, but it is enough to make me realize I'm in way over my head!

EoZTV Podcast

Podcast URL

Subscribe in podnovaSubscribe with FeedlyAdd to netvibes
addtomyyahoo4Subscribe with SubToMe

follow me

search eoz

Loading...

Recent posts from other blogs

comments

Speaking

Follow by Email

Contact

elder -at- elderofziyon dot com

translate

E-Book

For $18 donation








Sample Text

EoZ's Most Popular Posts Ever

Hasbys!

Elder of Ziyon - حـكـيـم صـهـيـون

Elder of Ziyon - حـكـيـم صـهـيـون
This blog may be a labor of love for me, but it takes a lot of effort, time and money. For over 11 years and over 23,000 articles I have been providing accurate, original news that would have remained unnoticed. I've written hundreds of scoops and sometimes my reporting ends up making a real difference. I appreciate any donations you can give to keep this blog going.

Donate!

Monthly subscription:
Payment options

One time donation:

Tweets

Compliments

The Jerusalem Report:"A seemingly indefatigable one-man operation, armed only with a computer, chutzpa and stamina."

Algemeiner: "Fiercely intelligent and erudite"

Omri: "Elder is one of the best established and most respected members of the jblogosphere..."
Atheist Jew:"Elder of Ziyon probably had the greatest impression on me..."
Soccer Dad: "He undertakes the important task of making sure that his readers learn from history."
AbbaGav: "A truly exceptional blog..."
Judeopundit: "[A] venerable blog-pioneer and beloved patriarchal figure...his blog is indispensable."
Oleh Musings: "The most comprehensive Zionist blog I have seen."
Carl in Jerusalem: "...probably the most under-recognized blog in the JBlogsphere as far as I am concerned."
Aussie Dave: "King of the auto-translation."
The Israel Situation:The Elder manages to write so many great, investigative posts that I am often looking to him for important news on the PalArab (his term for Palestinian Arab) side of things."
Tikun Olam: "Either you are carelessly ignorant or a willful liar and distorter of the truth. Either way, it makes you one mean SOB."
Mondoweiss commenter: "For virulent pro-Zionism (and plain straightforward lies of course) there is nothing much to beat it."
Didi Remez: "Leading wingnut"

Interesting Blogs

Categories

Abbas liar Academic fraud administrivia al-Qaeda algeria American Jews Amnesty analysis anti-semitism apartheid arab refugees Arafat archaeology art ASHREI B'tselem bahrain bbc BDS BDSFail Bedouin Beitunia book review breaking the silence Cardozo Chanukah Christians conspiracy theories Cyprus Daphne Anson Davis report DCI-P double standards Egypt Elder gets results ElderToons Electronic Intifada EoZNews eoztv Erekat EU Euro-Mid Observer Fake Civilians 2014 Fatah featured fisking flotilla free gaza freedom of press palestinian style future martyr gaza Gaza Platform George Galloway gideon levy gilad shalit gisha Goldstone Report Good news Grapel Guardian gunness hamas Hamas war crimes hasbara Hasby 2014 Hasby 2016 Hebron helen thomas hezbollah history Hizballah Holocaust denial honor killing HRW Human Rights Humanitarian crisis humor Hypocrisy ICRC Ilan Pappe impossible peace incitement international law intransigence iran Iraq Islamism Israel Loves America Israeli culture Israeli high-tech J Street jabalya jeremy bowen Jerusalem jewish fiction Jewish Voice for Peace jihad jimmy carter John Kerry jokes jonathan cook Jordan Juan Cole Judea-Samaria Kairos Karl Vick ken roth khalid amayreh Khaybar Lebanon leftists Linkdump lumish mahmoud zahar Malaysia max blumenthal McGraw-Hill media bias Methodist Miftah Mohammed Assaf Mondoweiss moonbats music Muslim Brotherhood Nakba Natural gas Nazi NGO NIF norpac NYT Occupation offbeat oxfam PA corruption PalArab lies Palestine Papers pallywood pchr PCUSA Peter Beinart poll Poster Preoccupied Prisoners propaganda Proud to be Zionist purimshpiel Qaradawi Qassam calendar Rafah Ray Hanania real liberals reference Richard Falk rogel alpher roger cohen roger waters Saudi Arabia saudi vice self-death self-death palestinians sex crimes SFSU shechita sheikh tamimi Shujaiyeh SodaStream South Africa Speech stamps Syria Tarabin Temple Mount Terrorism This is Zionism Thomas Friedman Tunisia Turkey UCI UK UN unesco unhrc United Arab Emirates Unity unrwa UNRWA hate unrwa reports UNRWA-USA Vic Rosenthal Washington wikileaks work accident X-washing Yemen zahran zionist attack zoo Zvi

Blog Archive

subscribe via email