International Law and the ‘Permanent Status’ Issues
International Law and the ‘Permanent Status’ Issues
Abstract and Keywords
The Oslo Accords lists seven ‘permanent status’ issues in the following order: (1) Jerusalem, (2) refugees, (3) settlements, (4) security arrangements, (5) borders, (6) relations and cooperation with other neighbours, and (7) other issues of common interest. This chapter considers these issues. International law offers general guidance on how the parties might resolve most of the final-status issues. The main part of the task ahead it political, not legal. The law will not dictate any particular outcome. But it can draw baselines for parties, set limits, and help advance negotiations by providing a common language for discussion.
The Oslo Accords list seven ‘permanent status’ issues, in this order: (1) Jerusalem, (2) refugees, (3) settlements, (4) security arrangements, (5) borders, (6) relations and cooperation with other neighbours, and (7) other issues of common interest. We consider them in that order.
What is the status of Jerusalem, and who is entitled to territorial sovereignty there? There are few questions in international law that evoke a stronger emotional response than this one. If the negotiators wish to make any progress, they will not answer it. Still, the negotiators should and will be influenced by legal considerations, and their goal should be to supplant the existing arguments about Jerusalem with a new legal regime that is binding on, and generally acceptable to, all parties. Thus, while the important task is to create new law, current law can and should play a role in the birth of the new.
Unfortunately, there is no shortage of disagreement about the legal status of Jerusalem. A full critique of the large volume of scholarship on this question is beyond the scope of this book,1 but a brief summary and some tentative conclusions can at least add perspective to the options that follow. (For a map of Jerusalem, see Map 6, p. 50.)
(p.268) As to West Jerusalem, there is a wide range of scholarly opinion. It includes the view that Israel acquired sovereignty there in 1948; the view that sovereignty over Jerusalem is suspended pending a final settlement; the view that Jerusalem is still governed by the Partition Resolution of 1947, which called for a corpus separatum; and the view that the Palestinian Arab people have full legal sovereignty over all of Jerusalem.
As to East Jerusalem, opinion ranges from the view that Israel occupied East Jerusalem in self-defence in 1967 and is now entitled to fill a vacuum in sovereignty that had existed there earlier; that Israel has the strongest relative title to East Jerusalem, since Jordan was never a legitimate sovereign; the view that sovereignty is in suspension, awaiting final settlement; the view that the Partition Resolution still governs; and the view that the Palestinians have legal sovereignty over East Jerusalem.2 Obviously Israel and the Palestinians traditionally have adopted the views that favour their respective claims to the city.
No arbitral tribunal will ever resolve this dispute, so in one sense an assessment of the competing claims is pointless: plainly the only way out of the logjam is some negotiated compromise. Still, the contours of that compromise should be shaped by the underlying legal and political equities.
The most reasonable assessment of the conflicting legal claims is that neither party’s maximal solution is compelled by law. As to West Jerusalem, Israel’s claim is very strong. West Jerusalem has been a part of the State of Israel since its inception; it has had a Jewish majority since the nineteenth century; and states have de facto acquiesced in Israeli sovereignty over West Jerusalem. It is true that many states still decline to locate their embassies there, but this posture reflects concern over recognizing Israeli sovereignty over East Jerusalem, not West Jerusalem. As for the United Nations, Resolution 242 implicitly acknowledges Israel’s sovereignty over West Jerusalem, since it calls only for withdrawal from ‘territories occupied’ in the 1967 War. Even the PLO does not vigorously press a claim to the western sector of the city.
Israel’s claim to East Jerusalem, however, is weaker. East Jerusalem was not part of the State of Israel at its inception; though it now houses a Jewish majority, its demographic history is much more Arab than is the case in the western sector; and while it was acquired in a war of self-defence, conquest even in self-defence does not necessarily confer territorial sovereignty. Arab states and the United Nations have repeatedly made known their view that East Jerusalem is occupied territory, as well as their view that the Palestinian Arab people have a right to self-determination.
(p.269) On the other hand, the Palestinian claim to East Jerusalem also has its weaknesses. Even if East Jerusalem is occupied territory, that does not necessarily imply any ultimate conclusion about territorial sovereignty. The mixed demographic make-up of East Jerusalem suggests that Jews as well as Arabs have rights of self-determination there. Moreover, there has never been a Palestinian state there (or anywhere else). Even the UN Partition Plan did not call for Palestinian sovereignty over East Jerusalem, but rather a corpus separatum. Likewise, Resolution 242 called for Israeli withdrawal from ‘territories’ occupied in the 1967 War, but it apparently did not call for withdrawal from all territories.3
The weaknesses in each party’s claim to East Jerusalem lend support to the intermediate theories of sovereignty over East Jerusalem, such as the theory that sovereignty there is suspended pending a final settlement. This conclusion only bolsters the conviction that a final settlement must involve some negotiated compromise between the parties. Given the depth of the parties’ attachments to their respective claims, how can they fashion a workable compromise on Jerusalem, one that comports with legal and political constraints?
There is agreement on at least one point: Arabs and Jews alike say they do not want the city to be physically re-divided.4 Beyond that, a number of competing options present themselves, some more realistic than others. These range from full Palestinian sovereignty over East Jerusalem to full Israeli sovereignty, with intermediate options in between. The discussion that follows argues that international law affords the parties fairly wide latitude to negotiate an agreement resembling any one of the options, but that international law does set some constraints, albeit loose ones. The options are presented with Israeli preferences first, but this ordering is not intended to endorse any one solution over another.
1. Full Israeli sovereignty over West and East Jerusalem, with Palestinian extraterritorial rights and a Palestinian capital in a Jerusalem suburb
This type of solution obviously faces enormous political obstacles: it is unacceptable to most Palestinians, who see East Jerusalem as an Arab city. This outcome also raises a host of legal issues. These include whether and how the Palestinians could exercise ‘extraterritorial rights’ in the Old City (p.270) or East Jerusalem; more fundamentally, whether an agreement recognizing Israeli sovereignty over both East and West Jerusalem would violate Palestinian rights of self-determination; whether such an arrangement would be void or voidable for duress; and whether the 1947 Partition Resolution forbids any agreement to confer exclusive sovereignty on one party or the other.
The extraterritoriality question can be dealt with briefly here, since its more difficult dimensions relate to Israeli settlements, to be discussed later in this Chapter. For now, it can be said that modern international law would permit a wide array of arrangements by which Palestinians could administer and worship at Holy Sites in the Old City without being subject to the full range of Israeli civil and criminal jurisdiction. Likewise, international law would permit an agreement between Israel and the Palestinians providing for wide powers of Palestinian regulation over future Palestinian nationals living in East Jerusalem. That regulation could take the form of exclusive Palestinian criminal or civil jurisdiction, or it could take the form of concurrent Palestinian and Israeli jurisdiction, perhaps with a Palestinian ‘right of first refusal’. Enforcement of extraterritorial Palestinian criminal law would presumably be handled by extradition of Palestinians to the new State of Palestine; enforcement of extraterritorial Palestinian civil law would presumably be handled by a system of mutual enforcement of civil judgments.
The question of self-determination is much more difficult. It goes to the heart of the parties’ dispute over Jerusalem. (It should be noted, however, that this dispute centres around East Jerusalem and the Old City; Palestinian leaders do not seriously press a claim to West Jerusalem.) Some pro-Palestinian commentators have argued that any resolution that awards East Jerusalem and the Old City to Israel, no matter how generous the extraterritorial arrangements, would violate the Palestinian inhabitants’ fundamental right to self-determination. That right, they argue, is a jus cogens norm—one that cannot be dispensed with by agreement.5 This amounts to an argument that the Palestinian leadership is not free to agree to Israeli sovereignty over East Jerusalem. The argument parallels the traditional Palestinian view that the Balfour Declaration, the British Mandate, and the Partition Resolution all violated Palestinian rights of self-determination.
The problem with this argument is that the content of the right of self-determination is indeterminate.6 In particular, there is little consensus on (p.271) what, if any, remedy exists for impingement on a people’s right of self-determination. For example, there is no consensus on whether there is a general right of secession. Some UN General Assembly resolutions endorse some right to secede from states with unrepresentative or racist governments,7 but some precedents and a number of prominent scholars take a more sceptical view.8 Likewise, the Namibia and Western Sahara cases suggest that some claims can be vindicated by plebiscite or other democratic self-expression,9 but other recent practice—in Northern Ireland, for example—suggests that in some circumstances, self-determination can be achieved only through peaceful negotiation and agreement. This variegated practice might lead one to conclude that there is no meaningful right of self-determination at all.
(p.272) Still, there are some definable contours to the right of self-determination. It has expressed itself in a number of forms, ranging from full sovereignty to limited autonomy a right to decide democratically not to pursue independence or autonomy.10 As Professor Kirgis puts it, the right of self-determination is a ‘Variable’ one. In particular, Kirgis suggests, the scope of self-determination is a function of two important variables: ‘the degree of destabilization in any given claim, taking into account all the circumstances surrounding it, and the degree to which the responding government represents the people belonging to the territory.’11
Applying these standards to East Jerusalem, it would appear that the law of self-determination does not demand any one particular solution. It gives Palestinian and Israeli negotiators alike considerable room in which to manoeuvre. East Jerusalem includes both a substantial Arab and a substantial Jewish population, and the Old City obviously houses Holy Places of enormous importance to both sides. Self-determination might take the form of full Palestinian sovereignty in East Jerusalem (an option to be discussed momentarily), but it might not have to take that form. The parties might conceivably agree that such a solution would be too ‘destabilizing’, in that it would presumably result in a city divided the way Jerusalem was divided from 1948 to 1967. Or they might conclude that self-determination can be vindicated by ensuring that Israel is a sufficiently representative home for the Palestinian residents of East Jerusalem—that it affords them full rights of citizens, including the right to vote, to own property, to have access to public resources, and the like. As we have seen, Israel has often fallen short of its human rights obligations to the Palestinians; an agreement that offered stricter guarantees for Palestinian rights would more likely be regarded as consistent with norms of self-determination. Alternatively, the negotiators might conclude that self-determination can be effectuated by a mix of Israeli sovereignty and Palestinian extraterritorial jurisdiction as to certain classes of crimes and civil matters. The point is that self-determination is not a fixed norm that points to only one solution.
Palestinians may also argue that any permanent status agreement that does not secure sovereignty over East Jerusalem would be void or voidable for coercion or duress. If Palestinian leaders do sign such an agreement, they should not count on claims of duress to allow them to undo it later. As a practical matter, such a strategy would be self-defeating because it would invite Israel to disown its own obligations under the (p.273) agreement. Beyond that, however, it should be recalled that coercion is a very narrow ground for invalidation of an international agreement.
As for coercion of a state party to an agreement. Article 52 of the Vienna Convention on the Law of Treaties holds a treaty ‘Void’ only if it was ‘procured by the threat or use of force’. Peace treaties are routinely sustained even when they result from the massive use of force, and in any event Israel is not likely to threaten or use force to obtain a permanent status agreement. And the negotiating history of the Convention suggests that ‘force’ means armed force, not economic or political pressure.12 The Vienna Convention also provides that coercion of a state’s ‘representative’ can deprive that state’s consent of its ‘legal effect,’ but again this norm is rarely invoked in practice, and only in cases resembling extortion, such as one case involving a ‘threat to ruin the career of a representative by exposing a private indiscretion as well as a threat to injure a member of his family’.13 Israel will not resort to such tactics.
A final issue is whether the General Assembly Partition Resolution of 1947 prevents the parties from agreeing to confer sovereignty over East Jerusalem to either party. The most sensible answer is that the Resolution does not stand in the way of such an arrangement. It is true that the Resolution called for a corpus separatum in Jerusalem—though it should also be remembered that the Resolution envisioned that the status of Jerusalem would be revisited after a period of time. In any event, as we saw in Chapter 1, the Partition Resolution is not legally binding now. It might have been binding when adopted, but it quickly fell into desuetude, and its terms were implicitly rejected by Security Council Resolution 242.
In sum, a final status agreement conferring upon Israel sovereignty over East Jerusalem would not deprive Palestinians there of their self-determination, so long as the agreement was freely negotiated and so long as the agreement fully protected the civil and political rights of Palestinians there. A concomitant regime of extraterritoriality would likewise be lawful. It is quite improbable that such an agreement would be invalid for coercion or duress.
2. Shared sovereignty
There are a variety of proposals for shared sovereignty over East Jerusalem and the Old City. The most famous of these is the unpublished plan for joint administration advanced by Israeli politician Yossi Beilin (p.274) and Palestinian negotiator Abu Mäzen.14 This plan would establish a Palestinian capital at the East Jerusalem suburb of Abu Dis, which would be renamed Al-Quds (the Arabic term for Jerusalem). It would also provide for some Palestinian role in the day-to-day governance of East Jerusalem, while leaving control of the city as a whole to Israel. Beilin and Abu Mazen were apparently unable to agree on de jure sovereignty over East Jerusalem; their plan apparently would have finessed that issue, leaving it for another day.15 Other shared-sovereignty plans include proposals for a ‘condominium’, proposals for ‘functional’ sovereignty, and proposals to govern the city through local councils, boroughs, or arrondissements.16
There are significant differences among these plans, but they all have in common some form of joint administration of the city. Many of them also envision a larger Jerusalem, one that might accommodate the aspirations and institutions of both societies. A larger Jerusalem might also have advantages for the more mundane aspects of city management.17
International law plainly permits subjects of international law to share sovereignty over the same territory. One prominent example is the condominium, an arrangement in which two or more states jointly exercise sovereignty over a single territory.18 Austria and Prussia governed Schleswig-Holstein and Lauenburg as a condominium from 1864 to 1866; Britain and Egypt governed the Sudan as a condominium from 1898 to 1955; and Britain and France governed the New Hebrides (now the state of Vanuatu) as a condominium from 1914 to 1980.19 The joint administration of Berlin may not have been a condominium, and it might not be the best model for governing Jerusalem, but it is further evidence that states can share control over territory. For that matter, federal states, customs unions, the European Union, and other arrangements exemplify the flexibility with which international law regards shared ‘sovereignty’ over territory. The Mandate and Trusteeship systems themselves were examples of divided sovereignty, though obviously not examples to which Jerusalem should return. It has even been suggested that ‘leases’ of territory—such (p.275) as China’s lease of Hong Kong to Britain—are a sort of shared sovereignty, though again not the best model for Jerusalem.20
In sum, international law permits a wide range of arrangements involving shared sovereignty. In Jerusalem, shared sovereignty raises two further issues: what law would govern in Jerusalem, and how the Holy Places would be managed.
As to choice of law, a number of options present themselves. One possible approach is ‘territorial’. Under this approach, Israeli law might apply to boroughs or arrondissements with large majorities of Jews, or it might apply only in West Jerusalem, while Palestinian law might apply in Palestinian boroughs or throughout most or all of East Jerusalem. A second approach would be ‘personal’. That is, Israelis would always be governed by Israeli law, and Palestinians would likewise be governed by Palestinian law, regardless of where they are. A third possibility is a combination of the first two: Israeli law might apply exclusively in the western sector of the city, Palestinian law in the eastern sector, and the law of the person might apply in the Old City and other areas. A fourth possibility is concurrent jurisdiction, with one side or the other exercising ‘primary’ jurisdiction in certain territories or in respect of their own nationals. A fifth possibility would be a ‘flexible system’ in which the governing law ‘would depend on the subject matter, the parties involved, and the municipal district in which the issue or dispute arises’.21
Each option has its strengths and weaknesses. A territory-based system has the virtue of simplicity and clear notice to the public. But it ignores the nationality of the parties, which means that each side will have jurisdiction over some ‘foreign’ transactions in which it has little interest. A personality-based system ensures that each side will retain jurisdiction over its own nationals, but it is more complex than a territorial system. For example, who would have jurisdiction over a crime by a Palestinian against an Israeli? The more widely accepted ‘active personality’ theory would favour a Palestinian court; the more controversial ‘passive personality’ theory would favour an Israeli court.22
A mixed territory-personality system shares the virtues and vices of each of its components. A system of concurrent jurisdiction, with one side presumptively exercising jurisdiction in certain cases, has the advantage of ensuring that one side’s courts can act in the event that the other side’s courts are delinquent, but it has the disadvantage of inviting conflicts (p.276) over Jurisdiction. The ‘flexible’ approach has precedent in extradition treaties, which often call on the requested state to evaluate all jurisdictional factors before choosing which of two competing extradition requests to honour.23 This approach best accounts for all the jurisdictional circumstances, but it also introduces the most complexity—and the most potential for conflict between courts of each side.
The parties would be well-advised to favour the clarity and simplicity of territory-based rules. Conflicts of law is one corner of jurisprudence that is best served by bright lines. A territory-based system is the easiest system to administer: the evidence and witnesses are already in the court’s territory. Such a system also provides the clearest notice to individuals of what law governs. Signs and other cues can physically indicate to people precisely what law governs where. In personality-based systems, by contrast, the law wanders the streets with each individual, creating uncertainty about what law governs where. Personality-based systems can also bog down in arguments over whether the individual is or is not a national of the state seeking to exercise jurisdiction. Such systems also permit trials to take place far away from the site of the transaction, thus complicating the collection of evidence and the appearance of witnesses.
None the less, the parties appear committed to at least some form of personality-based jurisdiction. The Oslo Accords themselves provide that either side can exercise personality-based jurisdiction in some circum-stances.24 Thus the parties will have to fashion some system that accounts for both personality and territory. Some ‘flexibility’ in administering such a system will therefore be essential.
The final question about shared sovereignty relates to the Holy Places in Jerusalem. Even if the parties do not agree to share sovereignty over secular aspects of life in Jerusalem, they almost certainly will choose to share responsibility for the Holy Places. Actually, the term ‘sovereignty’ is inappropriate for joint administration of the Holy Places, since it seems likely that such administration would be in the hands of private religious groups or committees, not states. As King Hussein put it: ‘My religious faith demands that sovereignty over the Holy Places in Jerusalem reside with God and God alone.’25
There are various proposals to accomplish this objective. One would vest control over the Holy Places to an interfaith committee of some sort.26 Another would entrust power over the sites to the interested religious (p.277) confessions. Moslem Holy Sites would be governed by a Moslem committee. Christian Sites by a Christian committee, and Jewish Sites by either a Jewish committee or the State of Israel itself.27 Any such solution obviously must confront the reality of intramural disagreements among different denominations of a particular faith. Still another option might grant certain Holy Places, such as the Temple Mount and Haram, semi-autonomous status like that of Mount Athos in Greece.28 Yet another might be a Vatican-like solution, in which the Holy Sites of the Old City are fully sovereign, with power to tax, police, issue passports, regulate immigration, and so forth. Still another might involve some measure of UN sponsorship.29
These options raise several common issues of international law. One is whether any such arrangement would comport with existing norms of human rights law, in particular the law relating to religious freedom. The law of human rights contains only relatively general norms on religious freedom; states have not been able to agree on whether there is a right of international religious pilgrimage, and there is continued uncertainty about the scope of a right to proselytize.30 But human rights law does contain strong if general norms protecting religious expression. It would be unlawful for any of the above arrangements to impinge on existing religious rights unless necessary to ‘protect public safety, order, health, or morals or the fundamental rights and freedoms of others’.31
In addition, any of the above options for the Holy Places would have to comply with Israel’s international obligations to ‘maintain and respect’ the historical ‘status quo’ in certain Holy Places. The ‘status quo’ grew out of nineteenth-century Ottoman firmans designed to determine the rights of various denominations in various Holy Places. It has since been memorialized in a variety of international instruments that continue to bind Israel, including the Holy See-Israel Fundamental Agreement of 1993, which reaffirmed Israel’s commitment to the historical ‘status quo’.32 Israel’s municipal law also obliges it to respect existing religious rights in (p.278) the Holy Places.33 Likewise, Israel is obliged to respect the applicable multilateral conventions on protection of cultural property.34
Finally, any agreement Israel makes in respect of the Holy Places must presumably conform with Israel’s own bilateral commitments. The most controversial of these is the provision of the Israel-Jordan peace treaty providing that Israel would respect the ‘special role’ of the Hashemite Kingdom in the Moslem Holy Sites in Jerusalem, and that Israel would give ‘high priority’ to Jordan’s ‘historic role’ in those shrines.35 The Palestinians angrily denounced these terms, accusing Israel of violating its earlier obligations under the Declaration of Principles.36
It is true that the Declaration provides that the outcome of permanent status talks ‘should not be prejudiced or preempted by agreements reached for the interim period’, but the Declaration also calls on the parties to cooperate with Jordan on matters of ‘common concern’.37 The peace treaty would seem to give effect to this latter obligation without directly stripping the PA of any concrete rights in the Holy Places. Indeed, the Interim Agreement of 1995 contained a number of specific provisions designed to protect Palestinian rights respecting the Holy Places, including the transfer of responsibility for some Holy Places to the PA.38
In sum, shared sovereignty over East Jerusalem and the Old City is permissible under international law. The parties should seek to share jurisdiction along territorial lines where possible, though political reality may demand that nationality-based jurisdiction play some role as well. Shared administration of the Holy Places must be carried out in accordance with the ‘status quo’ and general human rights law.
3. Full Palestinian sovereignty over East Jerusalem, including the Old City, with Israeli extraterritorial rights in the Old City
For most Palestinians, this is the best of the options. It will almost certainly never come to pass. Absent some radical shift in Israeli politics and demographics, no Israeli government could withstand the political earthquake that would result. Actually, this option does not represent the maximal Palestinian position—sovereignty over West and East (p.279) Jerusalem—but (unlike some radical Palestinians and academics) the Palestinian leadership itself does not seriously propose Palestinian sovereignty over West Jerusalem.39
The PLO does, however, advocate Palestinian sovereignty over all of East Jerusalem, which the PLO has claimed as the capital of a coming Palestinian state. And yet almost half the city’s Jews live in East Jerusalem.40 If, against all expectations, an Israeli government somehow agreed to these terms, would such an agreement comply with international law? In particular, would such an agreement violate Jewish rights of self-determination in East Jerusalem?
The most sensible answer is that Israel is free to agree to full Palestinian sovereignty in East Jerusalem. Admittedly, such a solution raises questions about both of Kirgis’s standards. It would be ‘destabilizing’ in that it would create a tense, divided city, in the mould of the Jerusalem that was carved in half with barbed wire from 1948 to 1967. It would also destabilize internal Israeli politics, perhaps radically. One might also question whether a Palestinian government over East Jerusalem and the Old City would in any way ‘represent’ Jews who live or work there, to say nothing of Jews who wish to pray at the Holy Places in the Old City. Israelis still have bitter memories of Jordanian management of the Holy Places in the years after 1948.
Still, in the unlikely event that an Israeli government is willing to accept these risks, it is not forbidden to do so. Destabilization in Israeli politics might at least be offset by some stabilization in Palestinian politics. And extraterritorial arrangements could help protect the rights of Jews living, working, or praying in East Jerusalem or the Old City. Again, this is not necessarily to suggest that this is the best solution, only that it is a lawful one.
4. Deferred resolution or implementation
Finally, it should be noted that the parties need not reach agreement on each and every aspect of the Jerusalem question. The parties may have a duty to bargain in good faith over the issues, but they do not necessarily have a duty to reach a final agreement on each issue. Some issues, such as the precise legal status of East Jerusalem, may best be postponed indefinitely in favour of an ambiguous solution under which both parties can claim victory. Others, such as the location of a Palestinian capital, probably will require resolution relatively soon. The point is that constructive (p.280) ambiguity need not be limited to the Oslo Accords themselves: it can also have a place in a final status agreement.
One of the most emotionally charged ‘final status’ issues is the problem of refugees41 and displaced persons. Between 600,000 and 750,000 Palestinian refugees ‘left, ran away, or were expelled’42 from the territory of the new State of Israel in the 1948 War. These Palestinians and their descendants now live mostly in Jordan, the occupied territories, and in the territory of other neighbouring Arab states. Estimates of those displaced by the 1967 War vary from 100,000 to 400,000 or more Palestinians.43
Again, there are various possibilities for a final status agreement on refugees. Again, some possibilities are more realistic than others. This (p.281) section groups the various possibilities into two major options: (1) a general Palestinian right of return to Israel and a concomitant right to repossess property there; and its more likely alternative, (2) a Palestinian right to compensation and to return to a Palestinian entity, with only a limited provision for Palestinians to immigrate to Israel.
1. A Palestinian right to return to Israel and to repossess property there
The maximal Palestinian position is a final status agreement recognizing a Palestinian right of return to Israel and a correlative right to repossess lost property. The traditional Palestinian view is that this outcome is required by international law. The traditional Israeli view is that there is no such right, and that any resolution of the refugee problem should take place in the context of comprehensive peace negotiations. As with the status of Jerusalem, a thorough analysis of these legal issues is beyond the scope of this book. As with Jerusalem, however, assessment of the parties’ respective positions requires at least some attention to the underlying legal equities. Accordingly, a brief look at the parties’ conflicting positions on refugees is in order.
The Palestinian claim to a right of return begins with UN General Assembly Resolution 194 of 1948, in which the Assembly resolved that
the refugees wishing to return to their homes and live at peace with their neighbors should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.44
At first blush, this provision would seem to support both a right of return and a right of repossession; after all, it speaks of ‘return to their homes ’, not just return to Israel.
But there are a number of holes in Resolution 194. It is not cast in mandatory language; it says ‘should’, not ‘shall’.45 It is true that a number of delegates to the General Assembly explained that they were endorsing a ‘right’ of Arab refugees to return to their homes.46 But international law (p.282) ordinarily looks to the plain meaning of an instrument,47 and the term ‘should’ is clear on its face: it is hortatory, not obligatory. Indeed, the word ‘right’ does not appear in the operative paragraph. Moreover, the Resolution states that refugees should be ‘permitted’ to return—language which the Palestinian Arab delegation to the Assembly later characterized as inconsistent with a right of return.48 Finally, the instrument is a resolution of the General Assembly, and as such is not legally binding.49
It is true that General Assembly resolutions of the 1970s and 1980s declared a Palestinian ‘right’ of return, and later resolutions may have some bearing on interpretation of earlier ones,50 but none of those later resolutions were any more binding than Resolution 194. Moreover, not every Assembly resolution after 194 squarely endorses a right of return: General Assembly Resolution 513,51 adopted in 1951, called on Arab states to resettle displaced Palestinians in their own territory, implying that displaced Palestinians had as much a right to resettle in Arab states as to return to Israel. Nor has the practice of the Security Council (whose resolutions can bind all states) squarely endorsed a right of return. Security Council Resolution 237 did call on Israel to ‘facilitate’ the return of Palestinians displaced by the 1967 War, but it did not announce a ‘right of return’ on the part of all Palestinian refugees.52 And Security Council Resolution 242 stops short of declaring a right of return, calling instead for a ‘just settlement’ of the refugee problem.53
It is true that human rights law emphatically proclaims the right of an individual to return home. The Universal Declaration of Human Rights (p.283) states flatly: ‘Everyone has the right to leave any country, including his own, and to return to his country.’54 Likewise, Article 12(4) of the Civil and Political Covenant provides: ‘No one shall be arbitrarily deprived of the right to enter his own country.’ There has been interesting scholarly argument over whether the Palestinian refugee problem involves ‘arbitrary’ deprivations.55 It also has been suggested that the Covenant covers only individuals, not groups.56 This interpretation does not seem to be required by the plain text of the instrument, and as a policy matter it is unappealing: it implies that one’s right to return is somehow less compelling if others share the same predicament.
The strongest argument against applicability of the Covenant is that the displaced Palestinians are not seeking return to their ‘own’ country, since they are not Israeli nationals.57 Most Palestinian refugees probably do not consider themselves Israeli nationals. Israel surely does not. Israel conferred Israel nationality on Palestinian Arabs who remained (and still remain) in the territory of Israel after the 1948 War, but it did not grant citizenship to Palestinians who were present when Israel was declared a state but shortly thereafter fled Israeli territory.58 Because the International Covenant’s reference to one’s ‘own’ country apparently means one’s country of nationality,59 Israel argues that non-nationals—including displaced Palestinians and Palestinian refugees—have no absolute right to enter or reside in Israel.
This argument might be difficult to accept if there were no Palestinian entity on the horizon, since it would leave large numbers of Palestinians with no ‘home’ to which to return. But the argument does imply that Palestinians will have a right of return to a new Palestinian entity, if and when it is constituted at the close of final status talks.
Other relevant treaties lend only ambiguous support to the Palestinian (p.284) claim of an absolute legal right to return to Israel. The Refugee Convention does not speak to the issue directly; its focus is on refugees who fear persecution at home and thus seek asylum abroad, not those who actually wish to return.60 Nor do treaties on the law of war clearly vindicate the Palestinian claim.61 The Camp David Accords did not confer on the Palestinians a right of return.62 The Madrid peace talks ushered in multilateral negotiations on refugees in Moscow in 1992, talks that continued after adoption of the Oslo Accords, but these multilateral negotiations have not produced any resolution of the problem, at least not publicly.63
The 1993 Declaration of Principles and the succeeding Oslo Accords called for final status negotiations to cover ‘remaining issues’, including ‘refugees’.64 The Declaration also called for a Continuing Committee, modelled on a similar provision in the Camp David Accords, to decide on ‘the modalities of admission of persons displaced from the West Bank and Gaza Strip in 1967, together with necessary measures to prevent disruption and disorder’.65 And, citing the ‘spirit of the peace process’, the Interim Agreement did grant the Palestinians some role in admitting Palestinians for family reunification.66 But the Oslo Accords did not establish a right of return or repossession, or even specify whether the question (p.285) of refugees covers displaced Jews as well as displaced Palestinians. The 1994 Israel-Jordan peace treaty likewise called for bilateral negotiations to deal with refugees and displaced persons, but again stopped short of announcing a right of return or repossession.67
In sum, the relevant sources of international law—UN materials, human rights law, humanitarian law, the Refugee Convention, the Middle East peace agreements, and customary law—do not impose an absolute obligation on Israel to admit all displaced Palestinians and Palestinian refugees. Obviously this conclusion also implies that there is no general right of repossession of property—though, as we shall see, there is an Israeli duty to compensate Palestinians for lost property. Even the Palestinians’ most ardent supporters concede that ‘a perfect restoration of the status quo is not possible’.68
That said, there is nothing in international law that forbids Israel to agree to permit significant numbers of Palestinians to return to Israel. Israel has in the past offered to accept as many as 100,000 Palestinian refugees,69 and Israel has long permitted small amounts of Palestinian immigration for family reunification. Likewise, nothing prevents Israel from agreeing to permit Palestinians to repossess property located in Israel. In so far as that property is now in the hands of Israelis, such an arrangement would require compensation for current possessors, as would be the case if Israel evicted any Israeli settlers.
Still, practical considerations have stood in the way of return and repossession in other similar cases. As Benvenisti and Zamir put it, ‘history shows that in no case of massive relocation—either in accordance with an agreed plan or as a result of the horrors of war—have the refugees regained the property they left behind’.70 It is unlikely that this historical pattern will be altered in this instance. The forced, massive displacement of hundreds of thousands of Israelis by returning Palestinians would in all likelihood lead to unmanageable social unrest or worse.
Again, it is to be hoped that Israel does agree to permit some Palestinian immigration, perhaps along the lines of Ben-Gurion’s proposal to permit the return of 100,000 Palestinians. But Israel is not likely to agree to large-scale return of Palestinian refugees, or to large-scale repossession of land. Accordingly, the parties will probably have to (p.286) supplement a limited right of Palestinian return with other options. Most of these will probably involve a combination of compensation to Palestinians and recognition of a Palestinian right to return to a new Palestinian entity. We turn to these options next.
2. No general right of return to Israel or repossession, but a right of compensation and a right of Palestinian immigration to a Palestinian entity
Just as Israel is not likely to agree to a final settlement that requires large-scale Palestinian repatriation to Israel, the Palestinians are not likely to agree to a final settlement that foregoes significant compensation for dispossessed Palestinian refugees and their families. This option is considerably more likely to be acceptable to Israel than the first option. Some Israeli politicians do recognize that compensation is appropriate, though they do not necessarily concede that it must come from Israel.71
This option raises a series of legal issues. The first is whether there is an Israeli duty to compensate. Assuming there is some such duty, the second legal issue is the proper quantum of compensation. A third issue is what form compensation may take, what procedures are appropriate, and whether it might include claims by and against third-party Arab states (which may have borne the expense for housing refugees, but which may also be responsible to Israel for dispossession and displacement of Jews). A final issue is whether international law requires an unlimited right of Palestinian immigration to a new Palestinian entity.
The first issue, the duty to compensate, is relatively straightforward. It is generally agreed that states have a duty to compensate for expropriation of the property of an alien, though the precise measure of compensation is a matter of continuing debate.72 More generally, international law obliges states causing injury to an alien to make reparations to the state of which the alien is a national.73 The requirement of compensation would plainly cover the expropriation of property of a non-national, and as we have seen Israel regards displaced Palestinians and Palestinian refugees (p.287) as non-nationals, Israel cannot have it both ways: if Palestinians are Israeli nationals, then human rights law entitles them to return ‘home’ to Israel; if they are aliens, then they are entitled to compensation for expropriation and other injuries. Even if the Palestinians are somehow treated as Israeli nationals for the purposes of compensation but not return, it may well be that the right of compensation for expropriation now extends to a national of the state who flees from that state.74
To its credit, Israel did not immediately expropriate all of the refugees’ property, implicitly acknowledging that they might retain some reversionary interest. A number of laws, most notably the Absentees’ Property Law, 1950, provided for public administration of the refugees’ property in their absence, under terms permitting the government to enter into long-term leases for it but not to sell it, and generally (though not always) precluding return of the property to the original owner.75 Until the enactment of the Absentees’ Property (Compensation) Law, 1973,76 however, these laws did not provide for a right of compensation, and for a variety of reasons compensation has not often been paid since. In any event, these aspects of Israeli municipal law suggest that Israel is not unalterably opposed to making some compensation.
The second issue—the appropriate amount of compensation—is more complex. Even for ordinary expropriations of alien property, the precise standard of compensation is a matter of intense disagreement.77 There is even less consensus on the proper standard of compensation for expropriation of refugees’ property, in large part because there is relatively little state practice on which to draw.78
Benvenisti and Zamir suggest a standard of ‘adequate compensation’ for refugees, as opposed to ‘full compensation’. Among other things, they argue that full compensation is inappropriate because supervening investments by third parties might have changed the value of the property, whose original value at the time of dispossession could be difficult to assess. They also contend that full compensation could ‘drain the resources of the state’ and ‘create instability during a delicate transitional (p.288) period’. Like a regime of equitable compensation, a regime of ‘adequate’ compensation might mean that some refugees obtain less than full market value; in other cases, ‘when the rehabilitation of refugees requires more funds than the value of their abandoned property’, it might mean greater than full market value.79
Not all the reasons advanced for this proposal are persuasive. It is not clear why, as a matter of principle, difficulties of valuation should affect the choice of legal rule; such difficulties will exist regardless of the choice of standard. Likewise, if ‘full compensation’ unduly strained Israel’s fisc, the parties could agree on a system of instalment payments, or perhaps on arrangements for contribution from international organizations or Israeli allies. But there is considerable merit to the notion that the precise quantum of compensation might depend on more factors than just the original value of property lost fifty years ago, but might also include other equitable factors, such as the current needs of the refugee or the refugee’s community. The phrase ‘equitable compensation’ would none the less seem to capture this notion better than ‘adequate compensation’.
The third issue, the form and procedure of compensation, also raises complicated logistical questions. At least three alternatives present themselves: (1) an international Claims Tribunal to adjudicate individual Palestinian claims on a case-by-case basis, along the lines of the US-Iran Claims Tribunal in the Hague; (2) a UN Compensation Commission along the lines of that established in connection with the Iraq-Kuwait crisis; and (3) a lump-sum settlement.
Of these, a lump-sum settlement seems most appropriate. A claims tribunal is a programme for long-term, festering disagreement between the parties, or at least between individual Palestinians and Israel. Adjudication is not the most amicable means of resolving disputes, nor is it the most efficient or speedy. A claims tribunal would inevitably be bogged down for years and decades in case-by-case arbitration. Some deserving plaintiffs will inevitably fail to file. The US-Iran tribunal, a relatively successful example, is a case in point.80 The chief advantage of such an arrangement is that it permits the most individualized justice, but valuation problems and the cost and slow pace of adjudication easily outweigh this advantage.
Similarly, a compensation commission invites further argument and disagreement, when what is needed is an end to retrospective combat and a beginning of prospective problem-solving. Such a commission would collect each government’s claim for compensation (including, perhaps, (p.289) claims by Arab states, and claims by Israel against Arab states relating to displaced Jews). A compensation commission does have one advantage over a lump-sum settlement: it would provide some reassurance to both parties that a disinterested international organization would distribute the funds, minimizing the possibility of corruption. But, like arbitration, this solution would be time-consuming, bureaucratic, and costly, and it would require the parties to submit to the fact-finding of an international organization.
A lump-sum settlement would allow the parties to dispose of the compensation question quickly, once and for all. It would be nowhere near as costly or time-consuming as the two other alternatives. Perhaps more important, it would eliminate the prospect of continued argument over compensation well into the twenty-first century. Like the compensation commission, it could take the form of a multilateral agreement so as to account for claims by and against third-party states. For many of these reasons, the UN Conciliation Commission for Palestine proposed just such a solution in 1951.81
The chief disadvantage of a lump-sum arrangement is that it does not immediately transfer compensation to the hands of deserving individuals or to improvement of conditions at existing refugee camps. Benvenisti and Zamir suggest establishing a multilateral institution to supervise allocation of funds to and among all interested parties.82 This suggestion is sensible. Unlike a compensation commission, such an institution would not pass on the merits of compensation disputes, but simply administer the remedy already agreed upon by all parties.
With such an arrangement, a lump-sum settlement seems like the most appropriate solution for the parties. There is no question that it is consistent with international law: of all the three options, it plainly has the most precedent in state practice. As Lillich and Weston have concluded, ‘this procedural device has become, without doubt, the paramount vehicle for settling international claims’.83
The option under consideration—compensation plus a right of return to a Palestinian entity—obviously raises one final issue: what is the scope of a Palestinian right of return to Palestinian territory? Many Israelis are uncomfortable with the prospect of unlimited immigration to a new Palestinian entity in the West Bank and Gaza Strip. In September 1999, (p.290) for example, Israel’s Minister of Immigrant Absorption, YuIi Tamir, was criticized for instructing her Ministry to give advice to the PA on how to absorb Palestinian immigrants.
Other Israelis, however, are relatively unconcerned about the prospect of large-scale Palestinian immigration into a new Palestinian entity. Labour’s Yossi Beilin believes it ‘impossible to impose immigration quotas’ on any new Palestinian state, and he adds that ‘even if there comes a stage where the Palestinian population increases substantially as a result of immigration, I still don’t see this as a threat to Israel’.84
If the peace process does result in a Palestinian state, then nationals of that state will have a right to return home. As we have seen, human rights instruments provide that people may not be ‘arbitrarily’ deprived of this right. Some restrictions on Palestinian immigration might not be arbitrary. But the emphasis on non-discrimination in the human rights treaties implies that discriminatory exclusion would be arbitrary. In addition, the arbitrariness test probably also requires that the proponent of exclusion be able to point to some reasonable basis for it.
For example, it would not be arbitrary for the parties to agree that the Palestinians should place some initial limits on annual immigration in order to avoid chaos at the Palestinian borders and to ensure that new residents can be properly housed. It would, however, seem arbitrary for the parties to agree in advance to prohibit some Palestinians from ever returning. Such an agreement would rest on the untested premise that a Palestinian state can absorb only a limited number of people—a premise that rankles some Israelis who recall ‘ludicrous predictions’ made about the ‘absorption potential’ of the Jewish state.85 The parties are not free to strip Palestinians of their right to return to a Palestinian homeland, but they are free to impose reasonable regulations on Palestinian immigration to ensure an orderly transition.
In sum, international law permits a settlement whereby the parties agree to compensation for Palestinian refugees. Indeed, international law probably requires some form of compensation. The precise form and procedure for compensation is within the parties’ discretion, but the most workable choice would be a lump-sum agreement. No agreement between the parties may lawfully strip Palestinians of their eventual right to return to a Palestinian entity, but the parties may agree to reasonable regulations designed to facilitate safe and orderly repatriation.
(p.291) C. Settlements
Negotiators are most likely to make progress on settlements if they avoid rehashing decades-old arguments on the lawfulness of Israeli settlements in the West Bank and East Jerusalem. As we saw in Chapter 7, the better view is that such settlements are inconsistent with the Fourth Geneva Convention and other relevant sources of humanitarian law, but Israel’s arguments are not nearly as frivolous as Israel’s critics would suggest. In any event, these issues can and should be mooted by a final settlement. If the Palestinians freely agree to permit some settlements to remain, perhaps with some under Israeli sovereignty and others under Palestinian sovereignty, then the old arguments about occupation law would seem no longer relevant. If a final agreement ends Israel’s occupation, then of course occupation law will be inapplicable.
A final disposition of the settlement problem might take a number of forms, each raising legal issues. (For relevant maps, see Maps 5, 6, and 7 on pp. 35, 50, and 108.)
It is not likely that the Palestinians will agree to any arrangement for extraterritorial Israeli jurisdiction over settlements in the territory of a new Palestinian state. Even some supporters of Israel acknowledge that in such circumstances, ‘the new state of Palestine would consist of little more than a series of patches, enclaves and roads, and Palestinian police and courts would have no legal jurisdiction over the foreigners (that is, Israelis) who would travel through’ these enclaves.86 Moreover, extraterritoriality smacks of legal imperialism. It harks back to the consular jurisdiction of the nineteenth century, in which citizens of Western states were subject only to the jurisdiction of their own consuls when travelling in developing countries, on the theory that there was no reliable local law.87
Still, Israeli officials in the past have indicated support for some form of extraterritoriality for settlements.88 It is therefore worth asking whether international law permits this type of arrangement. The law of nations of the nineteenth century embraced consular jurisdiction.89 In fact, as late as (p.292) 1952 the International Court of Justice was willing to enforce US consular Jurisdiction in Morocco, at least in so far as it was clearly established by treaty.90 But by the mid-twentieth century, this form of extraterritoriality was quickly vanishing. In Palestine itself, the UN Partition Resolution ‘invited’ Western states ‘to renounce any right pertaining to the re-establishment’ of consular jurisdiction.91 Is it fair to conclude that modern international law no longer permits extraterritorial arrangements?
The disappearance of extraterritoriality might suggest that customary law now rejects such arrangements. The practice of the United Nations lends support to this argument. The UN Charter stresses the ‘principle of sovereign equality of all its Members’, and the General Assembly Declaration on Friendly Relations defines ‘sovereign equality’ as including the proposition that ‘States are judicially equal’.92 Likewise, the Montevideo Convention on Rights and Duties of States (to which neither Israel nor the PLO is a party) provides that a state’s jurisdiction ‘applies to all the inhabitants’ and that ‘foreigners may not claim rights other or more extensive than those of nationals’.93 These provisions alone might not be dispositive, since states may generally enter into agreements that ‘vary or even dispense altogether with most rules of international law’.94 But international agreements cannot dispense with Charter norms or with peremptory norms of international law (jus cogens).95 There is, moreover, some evidence that the principle of ‘sovereign equality’ is a peremptory norm.96
Still, the foregoing norms of ‘sovereign equality’, even if they are peremptory norms, do not rule out all forms of extraterritoriality. To begin with, the norms are vague; to say that all states are ‘judicially equal’ might just mean that states are equally free to decline to exercise jurisdiction within their own territory if they see fit. If Israel is free to permit Palestinian extraterritorial rights over the Haram, then Palestine should be equally free to permit Israeli extraterritorial rights over settlements.
(p.293) Moreover, state practice plainly endorses the notion that some extraterritoriality is acceptable. States often acquiesce in other states’ exercise of extraterritorial jurisdiction in both civil and criminal matters. Consider the Status of Forces Agreements between the United States and states hosting US armed forces: these typically provide that the United States will exercise jurisdiction over minor crimes by US personnel posted in the host state.97 Extraterritorial jurisdiction over settlements may be a bad idea from a policy standpoint, but if the Palestinians freely agreed to it in exchange for concessions on other points, the resulting agreement would not violate international law.
2. Forcible eviction of settlers
It is highly unlikely Israel will ever agree to destruction of existing settlements or forcible eviction of current settlers.98 Israel did agree to dismantle settlements in the Sinai Peninsula in order to implement the Egypt-Israel peace treaty.99 But those settlements were tiny compared to the existing settlements in the West Bank and Gaza Strip, whose population exceeds 160,000 people.100 The option none the less deserves brief consideration here not only because of the Sinai precedent, but also because the United Nations and the Palestinians have repeatedly called on Israel to remove the settlements.
However unpalatable such an option might be to Israel, it probably would not violate international law so long as fair compensation were paid to settlers whose property was taken or destroyed. To be sure, states do not have unfettered discretion to seize the property of their own nationals. Article 17(2) of the Universal Declaration of Human Rights provides that no one shall be ‘arbitrarily deprived of his property’. The property provisions of other general human rights instruments suggest that ‘arbitrary’ deprivations would include discriminatory takings of property.101 But it would not be ‘discriminatory’ or ‘arbitrary’ for the government of Israel to facilitate peace by trading settlements for other (p.294) concessions. The Sinai precedent itself suggests that the dismantling of settlements is not inconsistent with international law.
Palestinians and the UN Security Council have gone further and asserted that Israel is required to destroy existing settlements.102 Even if one assumes that the Fourth Geneva Convention and other sources of humanitarian law are applicable, and further that Israel’s settlements violate humanitarian law, it does not appear that humanitarian law requires destruction of such settlements. On the contrary: the Fourth Geneva Convention envisions war-crimes prosecutions, not the forcible evacuation of civilian settlers.103
In the unlikely event that Israel does dismantle some settlements, international law probably requires it to pay compensation to dispossessed Israeli settlers. There is some authority for the proposition that ‘the international law standard of compensation does not apply to the taking by a state of its own nationals’ property’.104 The better view, however, is that nationals are entitled to compensation for property taken by their government. This rule does not appear in many of the leading human rights treaties, but it is a common feature of municipal law, suggesting that it may rise to the level of a ‘general principle’ of law.105 In any event, Israel’s own internal law and practice suggests that dispossessed settlers would have a right of compensation enforceable in the Israeli courts.106
The precise quantum of compensation required is another matter. The proper level of compensation for expropriation of aliens’ property is one of the most controversial subjects in international law. The appropriate level of compensation for expropriation of citizens’ property is likewise uncertain. There is state practice to suggest that states feel free to compensate their own nationals less generously than they compensate foreign nationals. Whatever the precise standard, it is safe to say that Israel would satisfy its international obligations if it supplied dispossessed settlers with prompt, adequate, and effective compensation.107
In sum, it is unlikely that Israel will forcibly remove any significant number of settlers from the West Bank or the Gaza Strip. If it did agree to do so, that agreement would be lawful provided that Israel paid some (p.295) measure of compensation to the settlers. Moreover, nothing in international law prevents Israel from attempting to induce settlers to leave voluntarily, perhaps by offering them compensation and new housing in Israel proper.
3. Israeli sovereignty over settlements
A third option is full Israeli sovereignty over some or all of the settlements. This solution is obviously popular with Israelis and unpopular with Palestinians. Full Israeli sovereignty over all existing settlements would leave only a highly splintered chequerboard of land remaining for a new Palestinian entity. This arrangement might simplify Israeli municipal law,108 but it would raise troubling questions of international law.
To begin with, Palestinians and human rights activists argue that such a disposition would violate the Palestinian right of self-determination.109 As we have already seen, however, the right of self-determination leaves the parties wide discretion to fashion a final settlement. In the unlikely event that the PLO freely agreed to full Israeli sovereignty—presumably in exchange for other concessions—the PLO’s consent would represent a form of Palestinian self-determination.
In addition to self-determination, there remains the question of whether a future Palestinian state can lawfully consist of large numbers of disconnected islands of land, separated by pockets of Israeli sovereignty. (See Map 7, p. 108.) There is apparently no general requirement in international law that a state enjoy unbroken sovereignty over contiguous territory. That is not to say that contiguity is entirely irrelevant to claims of territorial sovereignty. There was a time when international law placed great emphasis on contiguity. In the nineteenth century European states in particular asserted that their geographic proximity to supposedly ‘empty’ territory (terra nullius) might itself form a basis for sovereignty, even in the absence of effective control of that territory.110 But this doctrine was repudiated in the twentieth century, when international law adopted the view that effective control, not geographical contour, was the most important component of a claim to sovereignty.111 The doctrine still has some relevance to the law (p.296) of the sea, which defines the continental shelf and continental margin in terms of the natural ‘prolongation’ of a coastal state’s land mass.112 But the Montevideo Convention of 1933, which contains the most generally accepted definition of a state, omits any requirement of contiguity.113 It thus appears there is no general legal requirement that a state have contiguous boundaries.
That said, there are of course important political and practical reasons to ensure that a state does have reasonably contiguous boundaries. It is not in anyone’s interest to require travellers to stop repeatedly at passport-control stations just to make their way across the West Bank. The free flow of people, goods, and information is hardly enhanced by such an arrangement. It is to be hoped that the parties can come to some agreement, perhaps involving a mix of all the options listed here, to minimize the geographical splintering of any future Palestinian entity.
4. Palestinian sovereignty over Israeli settlements
Most Israeli settlers vigorously reject any suggestion that their lands and homes be placed under Palestinian sovereignty. None the less, not all Israelis are unalterably opposed to such a solution for at least some settlements.114 It is unlikely, moreover, that such an arrangement would violate international law. Again, it may be that Israel would be required to pay compensation to settlers who refuse to live under Palestinian sovereignty but are unable to sell their property for full market value. Again, past Israeli practice suggests that Israel would make compensation in such circumstances. Of course any Palestinian entity would be obliged to respect the human rights of Israeli nationals in its territory.
There is also a question of whether Israeli settlers placed under the sovereignty of a Palestinian state would be treated as double nationals—i.e. as Palestinian as well as Israeli nationals. (There seems little reason to fear that settlers would become stateless; it is exceedingly unlikely that Israel would deprive them of their Israeli nationality.) Dual nationality is not an unalloyed benefit. A double national will normally wish to avoid being subject to the tax and military-service requirements of both states. (p.297) Likewise, dual Israeli-Palestinian nationals living in a Palestinian state might wish to ensure that their Palestinian nationality did not preclude Israel from asserting diplomatic protection on their behalf.115 These concerns can presumably be put to rest in a final status agreement.
5. Deferred or delayed resolution
As with Jerusalem, it may be best to leave some settlement issues unresolved. The parties might agree to leave some settlements under Israeli sovereignty for now without foreclosing the possibility of a change in status later. Alternatively, the parties might agree to change the status of some settlements but also agree to delay or at least phase in implementation, as was done with the reversion of Hong Kong to Chinese sovereignty. Gradual implementation, over years or decades, could help minimize disruption to the lives of existing settlers.
In sum, there is no solution to the settlement issue that will completely satisfy each side. As with the other final status issues, agreement will require significant compromise by both parties. International law permits any of the foregoing options, subject to the limitations discussed. Most likely an agreement will involve a mix of several options: some Israeli sovereignty over settlements; some Palestinian sovereignty; perhaps some limited extraterritoriality; some voluntary relocation of settlers; deferred resolution of some issues; delayed implementation of some agreements; and, least likely of all, the forcible removal of settlers.
D. Security arrangements
Israel is likely to attempt to place restrictions on the powers of any new Palestinian state. In particular, Israel will seek to ensure that a Palestinian state is not a military threat to Israel. It will likely press for a demilitarized Palestinian state and for limits on that state’s capacity to enter into military alliances. This section briefly considers whether such restrictions would be consistent with international law.
1. Military pacts and alliances
Israel may seek to prohibit the Palestinian state from ‘entering into, or participating in, any military pact or alliance’ and from hosting diplomatic missions from any country at war with Israel.116 This possibility (p.298) raises a question of international law: may a new state lawfully agree to such limitations?
The answer appears to be yes. It seems generally acknowledged that ‘associated states’, such as the Federated States of Micronesia, can delegate authority to decide on alliances to other states.117 Even states that do not bear this special status sometimes delegate defence and foreign-affairs decisions to other states. Liechtenstein relies on Switzerland to carry out much of its foreign affairs, and the state of Monaco (which was recently admitted to the United Nations) cedes much of its foreign-policy decisions to France.118 Moreover, every state is subject to some limits on its powers to make alliances. The UN Charter norm against the use of force probably has the character of jus cogens, implying that states may not enter into alliances for offensive military purposes.119 Such prohibitions are, of course, quite common in the municipal law of federal states.120
Palestinian ‘delegation’ of alliance-making capacity to Israel would be different from that of Monaco or Liechtenstein in that Palestinian interests are more likely to conflict with those of Israel. But this difference seems more a difference in degree than in kind. Even the most cosy relationship between protecting and protected states is likely to give rise to friction now and then. In any event, this concern could be mitigated by establishing a multilateral regional security regime including Israel, the Palestinian state, Jordan, and perhaps even Egypt.121
2. Diplomatie relations
If the parties are free to agree to limits on Palestinian alliances, they are probably also free to agree to limit Palestinian diplomatic relations, for example by prohibiting a Palestinian state from receiving diplomats from states at war with Israel. Israel may in fact be more concerned about foreign representation in a Palestinian state than Palestinian representation abroad, since hostile states might conceivably use embassies within the Palestinian state to carry out espionage against Israel or to smuggle in (p.299) heavy weapons for the Palestinians. In any event, the Palestinians are free to delegate some or all of their decisions on diplomatic activity to Israel, or alternatively to agree to some trilateral arrangement (with Jordan) for management of Palestinian diplomatic relations. International law does not forbid (or require) such a delegation of authority.
For similar reasons, the parties are free to conclude an agreement providing that any new Palestinian state will be demilitarized. In particular, the parties may lawfully agree that the Palestinian state cannot raise or deploy a standing army, cannot equip its police with anything other than light weapons, cannot deploy an air force or navy, and cannot permit the deployment of foreign troops on its soil. Likewise, the parties are free to agree to some Israeli, American, or UN military presence in the West Bank. So long as such agreements are not coerced—and, as we have seen, coercion is a narrow basis for invalidity of treaties in international law—they would be valid. International law neither forbids nor requires the Palestinians to delegate defence policy to Israel, Jordan, the United States, or the United Nations.
4. Counter-terrorism, extradition, and other security arrangements
Obviously Israel will remain intensely interested in obtaining Palestinian cooperation on fighting terrorism and maintaining security. Fortunately, the Oslo Accords, including the Wye River and Sharm el-Sheikh Memoranda, have already created an elaborate legal infrastructure for cooperation on terrorism and security. A final status agreement will likely build on these foundations to establish continuing (rather than merely interim) obligations to cooperate on security matters.
The physical shape of a new state of Palestine will depend in large part on what agreements the parties reach on several of the issues already discussed, such as Jerusalem and settlements. As we saw during the discussion of settlements, international law does not require that a Palestinian state be contiguous, but there are none the less compelling reasons of policy to maximize the contiguity of such a state. Likewise, international law permits a variety of creative solutions to the boundaries of Jerusalem, including solutions that would expand the city’s boundaries to help accommodate both parties’ claims. The resolution of the parties’ (p.300) differences on water also has obvious implications for the borders of a Palestinian state.122
As a general matter, then, the delimitation and demarcation of an eventual Israeli-Palestinian border is inextricably intertwined with resolution of other final-status issues. The resolution of these issues depends less on law than on a mutual commitment to negotiate seriously and in good faith.
F. Relations and cooperation with other neighbours
The Oslo Accords also envision final-status negotiations over ‘relations and cooperation with other neighbors’. Again, this issue is closely linked to a number of final-status issues, including Jerusalem, refugees, security arrangements, and water. Jerusalem is a subject of intense interest not only to Jordan, which has historically maintained that it has a role in management of the Holy Places there, but also to individuals, states, and religious organizations around the world. A final-status agreement on Jerusalem will have to account for all these interests. Likewise, any resolution of the refugee question will have to involve Arab states that currently house significant numbers of Palestinian refugees.
Similarly, we have already noted that Israel will press for restrictions on Palestinian diplomatic and military relations with other states. But the parties may also turn to third states to help implement their security commitments, much as they sought to rely on the CIA for assistance in implementing the Wye River Memorandum. Finally, a number of states in the region—for example, Jordan, Syria, Lebanon, and Turkey—have a strong interest in the water question. All these issues will require some measure of multilateral negotiation along the lines of the talks begun in Madrid.
G. Other issues of common interest: Palestinian statehood and water
Finally, the parties committed themselves to resolve ‘other issues of common interest’. As has already been observed, it might seem a bit odd that the parties did not enumerate one or two of the largest remaining issues: the question of Palestinian statehood, and the allocation of water.
The parties could hardly be expected to enumerate all the issues that remain, for countless ‘interim’ arrangements in the Oslo Accords will eventually need to become permanent arrangements. For example, the (p.301) parties may need to revisit their rather intricate mutual extradition arrangements by negotiating a full-fledge bilateral extradition treaty. None the less, it is unlikely the parties will regularize all of their ‘interim’ arrangements right away. As was said at the outset of this book, even if the parties reach a final-status agreement on the largest issues, the Oslo Accords will probably continue to furnish the legal basis for the day-today relations of the parties.
In any event, the two remaining large issues would seem to be Palestinian statehood and water. Statehood has already been discussed in Chapter 12, which rejected the argument that a Palestinian state came into being on 4 May 1999. That leaves the question of water. Again, a full treatment of this issue is beyond the scope of this book, but a brief discussion is in order.
Water has been a serious source of tension in the Middle East for decades. Disputes over water have contributed to armed conflict between Israel and its neighbours.123 If the issue is not resolved on a regional level—not just on a bilateral basis between Israel and Jordan or Israel and the Palestinians—there is the possibility that disputes over water might again lead to war. There have been efforts to reach a regional solution to the water question, including the plan developed by American mediator Eric Johnston in the 1950s, but until recently these efforts have languished.124
On water, as on so many other issues, Israelis and Palestinians see things very differently. The Palestinian view is that Israel uses much more than its share of available water, and that a substantial volume of water should be reallocated for Palestinian use.125 Some also argue that water should be apportioned in accordance with the amount of rain that falls in each party’s territory.126 Israel acknowledges that the Palestinians need more water.127 Many Israelis argue, however, that Israel should not be penalized for having invested in the technology necessary to procure and (p.302) use water efficiently, that allocation of water should give a higher priority to existing uses than topographical considerations, and that the emphasis should be on developing new resources to satisfy everyone’s needs.128 And yet, despite these differences, it is often said that water presents an opportunity for cooperation between the parties, since joint efforts to manage the water supply can benefit all parties.129
The factual setting of the problem is complex. That said, some things are fairly clear. The overriding fact is that there is not now enough fresh water for all the parties in the region.130 Likewise, it is clear that Israel uses much more water than the Palestinians. According to one assessment by a pair of Israeli scholars, ‘Palestinian average per capita consumption is less than one-third of average per capita consumption in Israel’.131 Palestinians in the Gaza Strip have a particularly dire need for more water.132 Other facts are less easy to ascertain. For example, it is difficult to assess how much water naturally ‘belongs’ to each side’s ‘territory’. In the Middle East as elsewhere, freshwater sources do not necessarily follow international boundaries. In particular, aquifers and other groundwater flow without regard to political circumstances. There are a variety of measures of how much water is ‘part’ of each side’s ‘territory’. These include the amount of rainfall that falls in feeding areas, the volume of storage areas under each party’s territory, or some combination of the two.133 And, as we shall see in a moment, there is disagreement over whether existing levels of use are more important than the natural hydrological characteristics of the region. There is hope that new sources will be developed in the future, and that agriculture—the sector that uses the most water—will become more efficient. But those processes will take a long time.
The Oslo process has led to some progress on water disputes in the region, and not just between Israel and the Palestinians. The most significant achievement is the 1994 Israel-Jordan peace treaty, which established detailed rules on allocation, storage, protection, and quality of water, and created a Joint Water Committee to help implement these provisions.134 The Oslo Accords have not achieved this level of success, but they do reflect some agreement on general principles. An annexe to the 1993 Declaration of Principles contained one paragraph endorsing the norm of ‘equitable utilization’ but refraining from any detailed consideration of the water question.135 The 1995 Interim Agreement addressed water in somewhat (p.303) greater detail. In Annex III, Israel recognized ‘Palestinian water rights in the West Bank’136—a concession of considerable importance to the Palestinians. Israel also agreed to make more water available to the Palestinians, and the parties further agreed to establish a Joint Water Committee along the lines of the Israel-Jordan model. None the less, the Interim Agreement stopped short of any longer-term resolution on allocation, protection, or storage of water. It is hoped that a final-status agreement will resolve these issues.
International law provides only the most general guidance for the parties, in part because the law in this area has been slow to develop. A century ago, many states apparently took the view that a state had absolute territorial sovereignty over waters running through its territory, regardless of the interests of downstream riparians.137 In the past few decades, however, international law has gradually embraced a more communitarian principle of ‘equitable utilization’ of waters flowing through more than one state. This principle was enshrined in the Helsinki Rules on the Uses of the Waters of International Rivers, promulgated by the International Law Association in 1966.138 Recently it has also been adopted in the municipal law of federal states.139 This doctrinal shift reflects a growing consensus that there is a human right to an adequate supply of water.140 The major human rights instruments do not refer explicitly to a right to water, but such a right can be readily inferred from other enumerated rights, such as the rights to food and life.141 Humanitarian law also speaks to water rights.142
(p.304) But while the Helsinki Rules have weight as an authoritative attempt at codification by a prestigious non-governmental organization, they do not constitute a treaty or other binding instrument.143 The International Law Commission laboured for many years to fill this gap,144 and at last in 1997 the UN General Assembly adopted the ILC’s proposed Convention on the Law of the non-Navigational Uses of International Watercourses.145 It is not yet clear whether the Convention will enter into force; the Convention requires thirty-five ratifications to enter into force, and despite the lopsided vote in favour of the Convention in the General Assembly, there is some doubt about how soon thirty-five states will actually ratify it. Indeed, even if it does come into force, it may never have enough support to qualify as an authoritative codification of customary law.146 Moreover, parties may by agreement depart from the norms established by the Convention.147 None the less, the Convention is a significant development in the law of transboundary watercourses.148
Like the Helsinki Rules, the Convention endorses the principle of ‘equitable utilization’ of shared watercourses. Article 6 of the Convention enumerates the factors relevant to equitable utilization, and thereby supplies ammunition to both Israeli and Palestinian negotiators. On the one hand. Article 6 lends support to Israel’s contention that international law protects existing uses. It provides that utilization should take into account ‘all relevant factors and circumstances’, including ‘[e]xisting and potential uses of the watercourse’, the ‘social and economic needs’ of each party, the ‘population dependent’ on the water, and the ‘effects of the use or uses of the watercourse in one watercourse State on other watercourse States’. Israel’s investments in water technology might be protected by yet another factor: ‘Conservation, protection, development, and economy of use’ of water and ‘costs of measures taken to that effect’.149
(p.305) Article 7 of the Convention also seems to protect existing use. It obliges watercourse states that use watercourses to ‘take all appropriate measures to prevent the causing of significant harm to other watercourse States’. Paragraph 2 of the same article—the most controversial provision in the entire text—provides that where harm is caused, the state causing harm shall ‘take all appropriate measures’ to ‘eliminate or mitigate’ the harm and, where appropriate, to ‘discuss’ compensation with the injured state. As one study has put it, this provision ‘has all the hallmarks of a hard-won compromise: it is rather awkward, somewhat ambiguous and probably not satisfying to anyone, but something most delegations could live with’.150 The Oslo Accords are not the only instruments that contain constructive ambiguity. In any event, Israel can argue plausibly that Articles 6 and 7 together protect its existing use.
On the other hand, the Palestinians can point to other provisions of Article 6 that favour Palestinian interests. The very first factors listed in Article 6 arguably vindicate Palestinian claims to more water. These factors are: ‘Geographic, hydrographic, hydrological, climatic, ecological and other factors of a natural character.’151 Prior to the adoption of this provision of the Convention, some Israeli commentators argued vigorously that international law established a hierarchy of factors, and that ‘natural characteristics’ were distinctly less important than existing use.152 There is some municipal law to support this view,153 though there is also some municipal authority that seems more ambiguous.154 The Convention, in any event, seems to have rejected it. It treats all factors equally, and even lists natural characteristics before existing use. If natural characteristics are as important as existing use, then the Israelis’ current level of use—including any profligate or wasteful uses—must be balanced against ‘natural’ considerations, such as the fact that aquifers in the West Bank help supply Israel with water. Again, it may be that the Convention’s attention to natural considerations is greater than that found in customary international law, but there is relatively little state practice in this area, so the Convention’s position at least has a certain amount of persuasive authority.
Other factors in Article 6 also might bolster the Palestinian position in negotiations. One such factor is the ‘potential’ use of water. Again, the (p.306) Convention treats this factor as being on a par with ‘existing’ uses, but there is municipal law suggesting that the state arguing that water is necessary for a ‘potential’ use must do so with clear and convincing evidence.155 It would seem appropriate that a party seeking water for future uses would bear the burden of proving a future need for that water. Some of the other factors in Article 6 might bolster both Palestinian and Israeli claims. The ‘social and economic needs’ of Israel can be balanced against the ‘social and economic needs’ of Gazans, whose low water supply is approaching emergency levels.
Even if one disregards the Convention and treats ‘existing use’ as the most important factor, the Palestinians still have room to argue for a greater allocation of water. The law surely does not (or at least should not) favour existing wasteful or profligate uses. As one commentator puts it, it is not ‘sustainable’ for Israeli settlers ‘to enjoy three or four times more water than their Palestinian neighbors, with Jewish children playing in swimming pools while nearby Arab children lack enough water to bathe’.156 Moreover, any assessment of ‘existing use’ must account for the realities of Israeli occupation, through which Israel has exercised control over Palestinian decisions on water use.
In sum, the international law on equitable allocation of water is still in its formative stages. There is relatively little state practice or conventional law on which to draw, and the new ILC Convention on the subject does not bind the parties to any one particular set of rules. Still, the Convention does offer useful guidelines on the general shape of an Israeli-Palestinian agreement on water. In particular, it suggests that Israel has a legitimate right to protect its existing uses, so long as those uses are not unduly profligate or wasteful, and that the Palestinians have a legitimate right to seek a greater allocation of water that meets their social and economic needs.
Any such agreement will be most stable if it also takes account of the interests of other states in the region. Indeed, the ideal settlement would be a multilateral regional agreement on water, but of course a multilateral agreement might also be more difficult to achieve. Among other things, it would probably require revisiting the Israel-Jordan understandings, and it would have to overcome not only traditional differences between Israel and its Arab neighbours, but disagreements among the Arab states. But even if a multilateral agreement is not feasible, a bilateral Israeli-Palestinian agreement is still essential. The parties need to come to some agreement to address the increasingly dire situation of Palestinians in Gaza and to address the problem of over-pumping in the area generally. And, of course, if there is to be an independent Palestinian state, there (p.307) should be some rules governing how it shares water with its Israeli neighbour. Otherwise the water issue might make peace in the Middle East only temporary.
In sum, international law offers general guidance on how the parties might resolve most of the final-status issues, including Jerusalem, refugees, settlements, security, borders, regional relations, and water. Of course, the main part of the task ahead is political, not legal. The law will not dictate any particular outcome. But law can draw baselines for the parties. It can set limits. It can help advance negotiations by providing a common language for discussion. If it can do these things, the law will have served its purpose.
(1) For a sampling of the large body of legal literature on Jerusalem, see, e.g., Ruth Lapidoth, ‘Jerusalem—Some Jurisprudential Aspects’, 45 Catholic U. L. Rev. 661, 671–3 (1996); Silvio Ferrari, ‘The Religious Significance of Jerusalem in the Middle East Peace Process: Some Legal Implications’, Ibid. 733 (1996); John Quigley, ‘Sovereignty in Jerusalem’, Ibid. 765 (1996); Moshe Hirsch et al., Whither Jerusalem? Proposals and Positions Concerning the Future of Jerusalem (The Hague; Boston: Martinus Nijhoff, 1995); Ruth Lapidoth, ‘Jerusalem and the Peace Process’, 28 Israel L. Rev. 402 (1994); Julius Stone, Israel and Palestine: Assault on the Law of Nations (Baltimore, MD: Johns Hopkins University Press, 1981); Henry Cattan, Jerusalem (New York: St Martin’s Press, 1981); Yehuda Z. Blum, ‘The Missing Reversioner: Reflections on the Status of Judea and Samaria’, 3 Israel L. Rev. 279, 294 (1968); Elihu Lauterpacht, Jerusalem and the Holy Places (London: Anglo-Israel Association, 1968). See also Temple Mount Faithful—Amutah et al. v. Attorney-General, 23 Sept. 1993 (H. Ct. Justice, Isr.), reprinted in 45 Catholic U. L. Rev. 861 (1996). For a collection of legal documents on Jerusalem, see Ruth Lapidoth and Moshe Hirsch (eds.), The Jerusalem Question and its Resolution: Selected Documents (Dordrecht; Boston: Martinus Nijhoff, 1994).
(2) For a useful recent summary of these theories, see Lapidoth, ‘Jerusalem—Some Jurisprudential Aspects’, 671–3.
(3) It will be recalled from Ch. 1 that the French and Spanish texts could be read as calling for total withdrawal. The important point, however, is that the English text was the basis for negotiations over Resolution 242. See Sydney D. Bailey, The Making of Resolution 242 (Dordrecht: Martinus Nijhoff, 1985), 152–3.
(4) See, e.g., Adnan Abu Odeh, ‘Religious Inclusion, Political Inclusion: Jerusalem as an Undivided Capital’, 45 Catholic U. L. Rev. 687, 694 (1996); Lapidoth, ‘Jerusalem—Some Jurisprudential Aspects’, 686.
(5) Some commentators go further, suggesting that the Oslo Accords themselves violate Palestinian rights of self-determination. See, e.g., Edward W. Said, Peace and its Discontents: Essays on Palestine in the Middle East Peace Process (New York: Vintage Books, 1995).
(6) See Ian Brownlie, Principles of Public International Law, 4th edn (Oxford: Clarendon Press; New York: Oxford University Press, 1990), 513. For examples of enunciation of the right in conventional law, see UN Charter, 26 June 1945, T.S. No. 993, Arts. 1(2) and 55; International Covenant on Civil and Political Rights, 16 Dec. 1966, 999 U.N.T.S. 171, Art. 1(1). For an example of scepticism about the reach of such a right, see Boutros Boutros-Ghali, ‘An Agenda for Peace’, UN Doc. S/24111, ¶17 (1992), 31 I.L.M. 948, 953 (1992) (noting that statehood for every ethnic group would result in ‘no limit to fragmentation’ of states).
The Oslo Accords themselves avoid the term ‘self-determination’, speaking instead of the ‘legitimate rights’ of the Palestinian people. See, e.g., Declaration of Principles, Art. 3(3). See also John Strawson, ‘Palestine’s Basic Law: Constituting New Identities Through Liberating Legal Culture’, 20 Loy. LA. Int’l & Comp. L.J. 411, 424 (1998) (‘the Oslo Accord talks coyly of “legitimate rights”’ rather than self-determination).
(7) See, e.g., Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, Annexe to GA Res. 2625, UN GAOR, 25th Sess., Supp. No. 28, at 121, UN Doc. A/8028 (1970), reprinted in 9 I.L.M. 1292 (1970).
(8) See, e.g., Inter-American Commission on Human Rights, ‘Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin’, OAS Doc. OEA/Ser.L/V/11.62, Doc. 10, rev. 3 (1983); ‘Report of the Commission of Rapporteurs presented to the League of Nations Council’, League of Nations Doc. B.7.21/68/106 (1921) (maintaining that a right of secession would ‘destroy order and stability within States’ and ‘inaugurate anarchy in international life’). These and other examples are quoted in Frederic L. Kirgis, Jr., ‘The Degrees of Self-Determination in the United Nations Era’, 88 Am. J. Int’l L. 304, 304 (1994), a thoughtful comment on the different flavours of ‘self-determination’. For scholarly scepticism about a right of secession, see, e.g., Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The Accommodation of Conflicting Rights (Philadelphia: University of Pennsylvania Press, 1990), 30; Thomas Franck, ‘Postmodern Tribalism and the Right to Secession’, in Catherine Brölmann, René Lefeber, and Marjoleine Zieck (eds.), Peoples and Minorities in International Law (Dordrecht; Boston: M. Nijhoff, 1993), 3, 13–14.
It is doubtful that there is a ‘general principle of law’ endorsing secession. States have resisted recognizing such a right in their municipal law. For example, some of the most famous political rhetoric in American history deals with the question of secession. See, e.g., Abraham Lincoln, First Inaugural Address (1861), in Michael Les Benedict, Sources in American Constitutional History (Lexington, MA: D. C. Heath & Co., 1993), 108–9 (‘no State upon its mere motion can lawfully get out of the Union’); Daniel Webster, ‘Reply to Hayne’ (1830), in Benedict, Sources, 81–3; cf. Abraham Lincoln, The Gettysburg Address (1863), in Benedict, Sources, 114 (implying that government is of ‘the people’ as a whole, not individual states, and vowing that ‘government of the people, by the people, for the people, shall not perish from the earth’).
(9) See generally Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge; New York: Cambridge University Press, 1995).
(10) See generally Frederic L. Kirgis, Jr., ‘The Degrees of Self-Determination in the United Nations Era’, 88 Am. J. Int’l L. 304 (1994).
(12) See Sir Ian Sinclair, The Vienna Convention on the Law of Treaties, 2nd edn (Manchester; Dover, NH: Manchester University Press, 1984), 15–17.
(13) Louis Henkin et al., International Law: Cases and Materials, 3rd edn (St Paul, MN: West Publishing, 1993), 492.
(14) See Ze’ev Schiff, ‘Beilin and Abu Mazen Drafted a Document on Final Status; Agreed to Establish a Palestinian State’, Ha’aretz, 22 Feb. 1996.
(15) See Marshall J. Breger and Thomas A. Idinopulos, Jerusalem’s Holy Places and the Peace Process (Washington, DC: Washington Institute for Near East Policy, Policy Papers Ser. No. 46, 1998), 67.
(16) See Marshall J. Breger, ‘The Future of Jerusalem: A Symposium—An Introduction’, 45 Catholic U. L. Rev. 653, 656–7 (1996).
(17) See Lapidoth, ‘Jerusalem—Some Jurisprudential Aspects’, 678.
(18) Oppenheim’s International Law, 9th edn, §170, 2:565. There has traditionally been disagreement about the precise definition of a condominium and the precise status of the condominial territory. See D. P. O’Connell, ‘The Condominium of the New Hebrides’, 43 Brit. Yb. Int’l L. 71, 77–84 (1968–9).
(19) See Oppenheim’s International Law, 9th edn, §170, 2:565–6.
(21) John v. Whitbeck, ‘The Road to Peace Starts in Jerusalem: The “Condominium” Solution’, 45 Catholic U. L. Rev. 781, 790 (1996).
(22) Compare Geoffrey R. Watson, ‘Offenders Abroad: The Case for Nationality-Based Criminal Jurisdiction’, 17 Yale J. Int’l L. 41 (1992) with Geoffrey R. Watson, ‘The Passive Personality Principle’, 28 Texas Int’l L. J. 1 (1993).
(23) See, e.g., Treaty of Extradition, 8 June 1972, US–UK, 28 U.S.T. 227, Art. X.
(24) See, e.g., Interim Agreement, Annex I, Art. 1(1)(b) (permitting the PA to prosecute Palestinians for certain offences outside PA jurisdiction).
(25) Cf. HRH King Hussein, speech before the US Congress, reprinted in 140 Cong. Rec. H6204, H6205 (daily edn. 26 July 1994).
(26) See Breger and Idinopulos, Jerusalem and the Holy Places, 61 and n. 5.
(27) See Elihu Lauterpacht, Jerusalem and the Holy Places (London: Anglo-Israel Association, 1968), 58–9.
(28) See Breger and Idinopulos, Jerusalem and the Holy Places, 63–6.
(30) See Moshe Hirsch, ‘The Freedom of Proselytism Under the Fundamental Agreement and International Law’, 47 Catholic U. L. Rev. 407 (1998); Geoffrey R. Watson, ‘Progress for Pilgrims? An Analysis of the Holy See–Israel Fundamental Agreement’, Ibid. 497, 506–27 (1998).
(31) International Covenant on Civil and Political Rights, Art. 18(3).
(32) Fundamental Agreement Between the Holy See and the State of Israel, 30 Dec. 1993, Art. 4(1), reprinted in 33 I.L.M. 153 (1994) and 47 Catholic U. L. Rev. 529 (1998). For more on the ‘status quo’, see generally L. G. A. Cust, The Status Quo in the Holy Places (Jerusalem: Ariel Pub. House, 1980); Walter Zander, Israel and the Holy Places of Christendom (New York: Praeger, 1971).
(33) See generally Ruth Lapidoth, ‘Freedom of Religion and of Conscience in Israel’, 47 Catholic U. L. Rev. 441, 449–55 (1998).
(34) See, e.g., Convention for the Protection of World Cultural and Natural Heritage, 14 May 1954, 249 U.N.T.S. 215.
(35) Treaty of Peace between Israel and Jordan, 26 Oct. 1994, Isr.–Jordan, 34 I.L.M. 43, 46. This language grew out of similar language in the Washington Declaration of 25 July 1994. See Menachem Klein, ‘The Islamic Holy Places as a Political Bargaining Card (1993–1995)’, 47 Catholic U. L. Rev. 745, 747 (1996).
(37) Declaration of Principles, Art. V(4), XII.
(38) See Interim Agreement, Annex 3 (Civil Matters), Art. 32.
(39) Cf. Quigley, ‘Sovereignty in Jerusalem’, 779 (asserting that the Palestinians have the better claim to ‘both sectors’ of Jerusalem).
(40) Abraham Rabinovich, ‘On capitals and compromise’, Jerus. Post, 18 June 1999.
(41) Some analysts prefer the term ‘displaced Palestinian’ to ‘refugee’ because a refugee is traditionally defined as someone who does not wish to return home because of a fear of persecution. See John Quigley, ‘Displaced Palestinians and a Right of Return’, 39 Harv. Int’l L.J. 171, 171 n. 4 (1998), citing Vojin Dimitrijevic, ‘Legal Position of Palestine Refugees’, 19 Rev. Int’l Aff. 427 (1968). Indeed, there is some doubt about whether all Palestinians outside Israel qualify as ‘refugees’ within the traditional meaning of the term. See Convention on the Status of Refugees, 28 July 1951, 189 U.N.T.S. 137, Art. 1(A)(2) (defining a refugee as a person who has a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’).
The Middle East peace agreements themselves, however, have adopted the convention of describing those fleeing the 1948 War as ‘refugees’ and those dislocated by the 1967 War as ‘displaced persons’. See, e.g., Treaty of Peace, Isr.–Jor., Art. 8(2). The apparent theory behind this distinction is that the 1948 War sent Palestinians abroad, whereas the 1967 War merely resulted in their relocation within the occupied territories. Some analysts have also adopted this convention. See Salim Tamari, Palestinian Refugee Negotiations: From Madrid to Oslo II (Washington, DC: Institute for Palestine Studies, 1996), 21–2, 59, 61. For the sake of convenience, and because international law may draw some distinctions between the two, that convention is adopted here.
(42) Benvenisti and Zamir, ‘Private Claims to Property Rights’, 297 (asserting that 600,000–700,000 Palestinians left).
The number of refugees, and especially the cause of their flight, is a matter of intense disagreement to this day. For examples of differing numerical estimates, see Benny Morris, The Birth of the Palestinian Refugee Problem, 1947 49 (Cambridge: Cambridge University Press, 1987), App. 1, pp. 297–8 (‘loose’ estimate of between 600,000 and 760,000 refugees); Shlomo Gazit, The Palestinian Refugee Problem 3 (1995) (putting the number at about 604,000); Janet Abu-Lughod, ‘The Demographic Transformation of Palestine’, in Ibrahim Abu-Lughod (ed.), The Transformation of Palestine: Essays on the Origin and Development of the Arab–Israeli Conflict (Evanston: Northwestern University Press, 1971), 139, 160 (asserting that after the first Israeli census, only 120,000 Arabs remained of 900,000 present before the war).
For a sampling of the passionate arguments on both sides of the causes of the Palestinian exodus, compare Justus Weiner, ‘The Palestinian Refugees’ “Right to Return” and the Peace Process’, 20 B.C. Int’l & Comp. L. Rev. 1, 21–6 (1997) with Quigley ‘Displaced Palestinians’, 173–82.
(43) See Benvenisti and Zamir, ‘Private Claims to Property Rights’, 18; Quigley, ‘Displaced Palestinians’, 181; Sydney D. Bailey, The Making of Resolution 242 (Dordrecht: Martinus Nijhoff, 1985), 172.
(44) G.A. Res. 194, UN GAOR, 3rd Sess., ¶11, UN Doc. A/810 (1948).
(45) See Ruth Lapidoth, ‘The Right of Return in International Law, with Special Reference to the Palestinian Refugees’, 16 Isr. YB. Hum. Rts. 103, 116 (1986); Kurt René Radley, ‘The Palestinian Refugees: the Right to Return in International Law’, 72 Am. J. Int’l L. 586, 601 (1978).
(46) See Quigley, ‘Displaced Palestinians’, 189 and n. 110 (citing examples). Professor Quigley attaches significance to the statement of the resolution’s drafter, the United Kingdom, that the provision was a ‘precise directive’. Ibid. 189, quoting UN GAOR, 3rd Sess., 184th mtg. at 948, UN Doc. A/PV.184 (1948) (Mr McNeil, UK). According to Quigley, this characterization ‘makes sense only if it is a call for repatriation’. Ibid.
(48) 21 GAOR, Special Political Committee (501st mtg.) 23, UN Doc. A/SPC/SR. 501 (1966) (statement of Mr Al-Ghouri, chairman of the Palestine Arab Delegation) (‘That right [to return] could never be a matter of option or permission’).
(49) See UN Charter, Art. 10.
There are other, less persuasive objections to the claim that General Assembly Resolution 194 established a right of return and repossession as a matter of international law. It has been said, for example, that because the Resolution is limited to Palestinians ‘wishing to … live at peace with their neighbors’, it confers on Israel discretion to determine which refugees might return peacefully. See Yoav Tadmor, ‘Comment: The Palestinian Refugees of 1948: The Right to Compensation and Return’, 8 Temple Int’l & Comp. L.J. 434 (1994). But the provision says nothing about vesting such determinations in Israel; it could plausibly be read simply to suggest that displaced Palestinians may choose between returning to Israel or remaining abroad. See Quigley, supra, at 187. Moreover, as Quigley points out, subsequent Assembly resolutions eliminated the phrase ‘wishing to live at peace’. Ibid.
(50) Cf. Vienna Convention on the Law of Treaties, Art. 31(3) (providing that treaty interpretation shall consider subsequent practice).
(51) G.A. Res. 513, UN GAOR, 6th Sess., Supp. No. 20, at 12, UN Doc. A/2119 (1951).
(52) S.C. Res. 237, UN SCOR, 22nd Sess., at 5, UN Doc. S/INF/22/Rev. 2 (1967). The General Assembly also called for the return of Palestinians displaced by the 1967 War. See G.A. Res. 2452A, UN GAOR, 23rd Sess., Supp. No. 18, at 22, UN Doc. A/7218 (1968).
(53) See S.C. Res. 242, UN SCOR, 22nd Sess., at 8, UN Doc. S/INF/22/Rev. 2 (1967).
(54) Universal Declaration of Human Rights, 10 Dec. 1948, G.A. Res. 217 (III 1948).
(55) For argument over the meaning of the term ‘arbitrary’, and about whether Israel has given proper notice of derogation from this obligation, compare Lapidoth, ‘The Right of Return’, 110, 115, with Quigley, ‘Displaced Palestinians’, 203–4.
(56) See, e.g., Lapidoth, ‘The Right of Return’, 108–9; cf. Hurst Hannum, The Right to Leave and Return in International Law and Practice (Dordrecht; Boston: Martinus Nijhoff, 1987), 71; Stig Jagerskiold, ‘The Freedom of Movement’, in Louis Henkin, ed., The International Bill of Rights (New York: Columbia University Press, 1981), 180.
(57) See, e.g., Radley, ‘The Palestinian Refugees’, 613–14; Lapidoth, ‘The Right of Return’, 114 (‘The Palestinian Arab refugees have never been nationals or permanent residents of Israel’).
(58) See Nationality Law, art. 3, in 6 L.S.I. 50 (1952).
(59) One problem with this argument is that the text of the Covenant does not, strictly speaking, limit the right of return to nationals. It speaks instead of a right to return to one’s ‘own country’. For the view that the right to return is none the less limited to nationals, see Inglés, ‘Study of Discrimination in Respect of the Right of Everyone to Leave Any Country, Including his Own, and to Return to his Country’, at 5, 18, 56, 66 (1963), UN Doc. E/CN.4/Sub.2/229/Rev. 1; Lapidoth, ‘The Right of Return’, 107–8. For the view that permanent residents also enjoy a right of return, see Ibid. 108 and nn. 25–6.
(60) See Refugee Convention, Art. 3 (providing that the state of refuge should not discriminate against the refugee); Ibid., Art. 21 (requiring favourable housing); Ibid., Art. 22 (education); Ibid., Art. 23 (public relief); Ibid., Art. 33 (restricting refoulement).
(61) For example, the Hague Convention and its accompanying Regulations require respect for ‘public order and safety’ (‘l’ordre et la vie public’) in occupied territory, but they do not contain a specific obligation of repatriation. Convention Respecting the Laws and Customs of War on Land, 18 Oct. 1907, Annexe: Regulations Respecting the Laws and Customs of War on Land, T.S. 539, Art. 43. As to whether the English text is an inaccurate translation of the French, see Yoram Dinstein, ‘The Israel Supreme Court and the Law of Belligerent Occupation: Deportations’, 23 Isr. Yb. Hum. Rts. 1, 19–20 (1993); Edmund Schwenk, ‘Legislative Power of the Military Occupant under Article 43, Hague Regulations’, 54 Yale L.J. 393, 398 (1945); Quigley ‘Displaced Palestinians’, 198 and n. 154.
(62) The Camp David Accords provided that Egypt and Israel would work together and with ‘Other interested parties’ to ‘establish agreed procedures for a prompt, just and permanent implementation of the resolution of the refugee problem’. A Framework for Peace in the Middle East Agreed at Camp David, Art. A(4), reprinted in Lapidoth and Hirsch, The Arab–Israeli Conflict, 195.
(63) See generally Salim Tamari, Palestinian Refugee Negotiations: From Madrid to Oslo II (Washington, DC: Institute for Palestine Studies, 1996).
(64) Declaration of Principles, Art. V(3); see also Interim Agreement, Art. XXXI(5) (identical language); Wye River Memorandum, ¶IV.
(65) Declaration of Principles, Art. XII; see also Gaza–Jericho Agreement, Art. XVI; Interim Agreement, Art. XXVII. Pursuant to these provisions, Egypt, Israel, Jordan, and the Palestinians did create a Quadripartite Committee for Displaced Persons. For more on the work of the Committee, see Tamari, Palestinian Refugee Negotiations, 21–2.
(66) See Interim Agreement, Annex III, Appendix 1, Art. 28(11) and (12); Ibid., Annexe II, Art. II(1)(g)(2). The Interim Agreement also establishes a joint committee to deal with reissuance of identity cards to ‘those residents who have lost their identity cards’. Ibid., Annexe III, Appendix I, Art. 28(3). For more on these changes, see generally Tamari, Palestinian Refugee Negotiations, 24–6, 63–6.
(67) Treaty of Peace, Isr.–Jor., Art. 8(2).
(68) Quigley, ‘Displaced Palestinians’, 226. See also ‘Progress Report of the U.N. Conciliation Commission for Palestine’, UN GAOR, 6th Sess., Supp. No. 18, at 5, UN Doc. A/1985 (1951) (‘The areas from which the refugees came are no longer vacant, and any movement of return would have to be carefully worked out and executed with the active cooperation of the Government of Israel’).
(69) See Yossi Beilin, Touching Peace: From the Oslo Accord to a Final Agreement, trans. Philip Simpson (London: Weidenfeld & Nicolson, 1999), 187.
(70) Benvenisti and Zamir, ‘Private Claims to Property Rights’, 324.
(71) Cf. Beilin, Touching Peace, 187 (Palestinian refugees ‘will be entitled to compensation from the international organisation that is to be established to replace the existing aid and development agencies …’).
(72) See Patrick M. Norton, ‘A Law of the Future or a Law of the Past? Modern Tribunals and the International Law of Expropriation’, 85 Am. J. lnt’l L. 474, 479–88 (1991); Oscar Schachter, ‘Compensation for Expropriation’, 78 Am. J. Int’l L. 121 (1984); G.A. Res. 1803 (XVII), 14 Dec. 1962 (87–2, with 12 abstentions) (requiring ‘appropriate compensation’); Texaco Overseas Petroleum et al. v. Libyan Arab Republic, Int’l Arb. Award, 19 Jan. 1977, 17 I.L.M. 1 (1978), ¶87 (holding that Resolution 1803 ‘seems to this Tribunal to reflect the state of customary law’); Charter of Economic Rights and Duties of States, G.A. Res. 3281 (XXIX), 12 Dec. 1974, Art. 2(2)(c) (‘appropriate compensation’).
(73) See Case Concerning the Factory at Chorzów (Merits), P.C.I.J. Ser. A, No. 17, at 28 (1928).
(74) See Luke T. Lee, ‘The Right to Compensation: Refugees and Countries of Asylum’, 80 Am. J. Int’l L. 532 (1986).
(75) 4 L.S.I. 68. This regime is described more fully in Benvenisti and Zamir, ‘Private Claims to Property Rights’, 300–1. See also Sabri Jiryis, ‘Settlers’ Law: Seizure of Palestinian Lands’, 2 Palestine Y.B. Int’l L. 17 (1985); David Kretzmer, The Legal Status of the Arabs in Israel (Boulder, CO: Westview Press, 1990), 60–6.
(76) 27 L.S.I. 176. As to the Jordanian administration of Israeli property in the West Bank from 1948 to 1967, see Benvenisti and Zamir, ‘Private Claims to Property Rights’, 301–4. As to Egyptian administration of Israeli property in Gaza, see Ibid. 304–5. As to Israeli practice in the occupied territories since 1967, see Ibid. 305–16.
(77) See generally Norton, ‘A Law of the Future’; Schachter, ‘Compensation for Expropriation’.
(78) See Benvenisti and Zamir, ‘Private Claims to Property Rights’, 330–1 and n. 207.
(79) Benvenisti and Zamir, ‘Private Claims to Property Rights’, 331.
(81) Progress Report of the UN Conciliation Commission for Palestine, UN GAOR, 6th Sess., Supp. No. 18, UN Doc. A/1985 (1951).
(82) Benvenisti and Zamir, ‘Private Claims to Property Rights’, 339–40.
(83) Richard B. Lillich and Burns H. Weston, ‘Lump Sum Agreements: Their Continuing Contribution to the Law of International Claims’, 82 Am. J. Int’l L. 69, 70 (1988). See generally Richard B. Lillich and Burns H. Weston, International Claims: Their Settlement by Lump Sum Agreements, 2 vols (Charlottesville: University of Virginia Press, 1975).
(84) Beilin, Touching Peace, 187.
(86) See Ze’ev Schiff, Israeli Preconditions for Palestinian Statehood (Washington, DC: Washington Institute for Near East Policy, 1999), 32.
(87) See Watson, ‘Offenders Abroad’, 50.
(88) See Abraham Rabinovich, ‘West Bank Pullout Could Isolate Settlers; Netanyahu Plan Faces Flak in Cabinet’, Wash. Times, 17 Dec. 1997, at A1 (reporting on then-Defence Minister Mordechai’s plan for Israeli extraterritoriality over 42 out of the 144 settlements on the West Bank).
(89) Cf. Daienese v. Hall, 91 U.S. 13, 15 (1875) (stating that treaties could lawfully establish consular jurisdiction, at least in ‘Pagan and Mahometan countries’).
(90) Case Concerning Rights of Nationals of the United States of America in Morocco (Fr. v. US), 1952 I.C.J. 176, 188. The United States relinquished its consular jurisdiction in Morocco in 1956. See Marjorie M. Whiteman, Digest of International Law (Washington, DC: US Dept. of State, 1968), 6:315.
(91) Partition Resolution, U.N.G.A. Res. 181(11), 29 Nov. 1947, part IV.
(92) See UN Charter, Art. 2(1); Declaration on Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625 (XXXV), 24 Oct. 1970, 25 GAOR, Supp. (No. 28) 121, 9 I.L.M. 1292 (1970).
(93) Convention on Rights and Duties of States, 26 Dec. 1933, 165 L.N.T.S. 19, T.S. 881, Art. 9.
(94) Sir Robert Jennings and Sir Arthur Watts (eds.), Oppenheim’s International Law, 9th edn (Harlow, Essex: Longman, 1993), 1:7.
(95) See UN Charter, Art. 103; Vienna Convention on the Law of Treaties, Art. 53.
(96) See 1966 Y.B. Int’l L. Comm’n, ii:247–9, cited in Oppenheim’s International Law, 9th edn, 1:8 and n. 4.
(97) See, e.g., North Atlantic Treaty: Status of Forces, 19 June 1951, 199 U.N.T.S. 67, 4 U.S.T. 1792, Art. VII.
(98) See Beilin, Touching Peace, 186 (‘We have no use for a solution whereby 140,000 people are evicted from their homes’).
(99) See Treaty of Peace Between the State of Israel and the Arab Republic of Egypt, 26 Mar. 1979, Art. 1(2), in Ruth Lapidoth and Moshe Hirsch (eds.), The Arab–Israel Conflict and its Resolution: Selected Documents (Dordrecht: Martinus Nijhoff, 1992), 218. See also Martin Gilbert, Israel A History (New York: William Morrow and Co., 1998), 492, 499–500. For a photograph of the Yamit settlement in the Sinai, and a photograph of its destruction, see Ibid. after p. 496 (plates 58–9).
(100) See Schiff, Israeli Preconditions, 27, 31.
(101) See, e.g., International Covenant on Civil and Political Rights, Art. 26.
(102) See, e.g., S.C. Res. 465, 1 Mar. 1980, ¶6 (calling on Israel ‘to dismantle the existing settlements’).
(103) See Jennifer S. Berman, ‘No Place Like Home: Anti-Vietnamese Discrimination and Nationality in Cambodia’, 84 Calif. L. Rev. 817, 843 (1996).
(104) Oppenheim’s International Law, §407, 1:918 n. 26, citing Lithgow and Others, 75 I.L.R. 439, 482 (1986).
(105) See Brice M. Clagett, ‘The Cuban Liberty and Democratic Solidarity (Libertad) Act: Title III of the Helms–Burton Act is Consistent with International Law’, 90 Am. J. Int’l L. 436, 439 (1996).
(106) See generally Benvenisti and Zamir, ‘Private Claims to Property Rights’, 310–16.
(107) See Oppenheim’s International Law, §407, 1:921–2.
(108) See Beilin, Touching Peace, 187–8.
(109) See Samira Shah, ‘On the Road to Apartheid: The Bypass Road Network in the West Bank’, 29 Colum. Human Rts. L. Rev. 221, 224 (1997).
(110) For an excellent discussion of the history of the contiguity doctrine, see generally Thomas D. Grant, ‘Defining Statehood: The Montevideo Convention and its Discontents’, 37 Colum. J. Transnat’l L. 403, 420–33 (1999).
(111) See Humphrey M. Waldock, ‘Disputed Sovereignty on the Falkland Islands Dependencies’, 25 Brit. Y.B. Int’l L. 331, 341–2 (1948). One of the most famous examples of the demise of contiguity doctrine is in Island of Palmas (Neth. v. U.S.), 2 R.I.A.A. 829 (Perm. Ct. Arb. 1928) (asserting that the ‘title of contiguity, understood as a basis of territorial sovereignty, has no foundation in international law’). For the view that the Palmas arbitration should not be read as a wholesale rejection of contiguity doctrine, see Sir Hersch Lauterpacht, ‘Sovereignty Over Submarine Areas’, 1950 Brit. Y. B. Int’l L. 376, 428–9.
(112) See UN Convention on the Law of the Sea, 10 Dec. 1982, U.N. Doc. A/CONF. 62/122, 21 I.L.M. 1261 (1982), Art. 76(1), 76(3).
(113) See Convention on the Rights and Duties of States, 26 Dec. 1933, Art. 1, 165 L.N.T.S. 19, reprinted in 28 Am. J. Int’l L. (Supp.) 75 (1934). For a recent critique of the Convention, see Grant, ‘Defining Statehood’, 433–57.
(114) See, e.g., Beilin, Touching Peace, 188 (‘I don’t subscribe to the view that living under another sovereignty spells perpetual danger’).
(115) Cf. generally Oppenheim’s International Law, §395, 1:884–6.
(116) See Schiff, Israeli Preconditions, 42–3.
(117) Hurst Hannum and Richard B. Lillich, ‘The Concept of Autonomy in International Law’, 74 Am. J. Int’l L. 858, 860 n. 13 (1980).
(118) See generally Jorri C. Duursma, Fragmentation and the International Relations of Micro-States (Cambridge, Melbourne, New York: Cambridge University Press, 1996); Gregory H. Fox, Book Review, 92 Am. J. Int’l L. 359, 361 (1998). Cf. also Michael J. Kelly, ‘Political Downsizing: The Re-Emergence of Self-Determination, and the Movement Toward Smaller, Ethnically Homogenous States’, 47 Drake L. Rev. 209, 224–5 (1999). But see Thomas D. Grant, ‘Review Article: Between Diversity and Disorder’, 12 Am. U.J. Int’l L. & Pol’y 629, 666–7 (1997) (arguing that Monaco’s delegation of its foreign-affairs powers undermines its claim to statehood).
(119) See UN Charter Art. 2(4), 103.
(120) See, e.g., 1848 Switzerland Constitution, Art. 9; US Constitution, Art. I, §10, cl. 1.
(121) See Schiff, Israeli Preconditions, 43.
(122) Cf. Schiff, Israeli Preconditions, 26.
(123) See Aaron Wolf and John Ross, ‘The Impact of Scarce Water Resources on the Arab–Israeli Conflict’, 32 Nat. Res. J. 919, 920 (1992).
(125) See, e.g., Sharif S. Elmusa, The Water Issue and the Palestinian–Israeli Conflict (1993), 2; Sharif S. Elmusa, ‘Dividing Common Water Resources According to International Water Law: The Case of the Palestinian–Israeli Waters’, 35 Nat. Res. J. 223 (1995); Gemal Abouali, ‘Natural Resources under Occupation: The Status of Palestinian Water under International Law’, 10 Pace Int’l L Rev. 411, 417 (1998).
(126) See, e.g., Jeffrey D. Dillman, ‘Water Rights in the Occupied Territories’, J. Palestine studies (Autumn 1989), 46, 57; Joseph W. Dellapenna, ‘Water in the Jordan Valley: The Potential and Limits of Law’, 5 Palestine Yb. Int’l L. 15, 35 (1989).
(127) Cf. Interim Agreement, Annexe III, Art. 40, ¶¶6–7 (acknowledging the ‘future’ and ‘immediate’ water needs of the Palestinians in the West Bank); see also Schiff, Israeli Preconditions, 24.
(128) See, e.g., Eyal Benvenisti and Haim Gvirtzman, ‘Harnessing International Law to Determine Israeli–Palestinian Water Rights: The Mountain Aquifer’, 33 Nat. Res. J. 543, 547–50 (1993); Schiff, Israeli Preconditions, 24–5.
(129) See, e.g., Wolf and Ross, ‘The Impact of Scarce Water Resources’, 921.
(131) Benvenisti and Gvirtzman, ‘The Mountain Aquifer’, 561.
(134) Treaty of Peace, Isr.–Jor., Art. 6 and Annexe II.
(135) Declaration of Principles, Annexe III, ¶1.
(136) Interim Agreement, Annexe III, Art. 40, ¶1.
(137) See, e.g., the ‘Harmon Doctrine,’ enunciated in 21 Op. Att’y Gen. 274, 280–3 (1895) (opinion of US Attorney General Judson Harmon). See generally Stephen C. McCaffrey, ‘The Harmon Doctrine One Hundred Years Later: Buried, Not Praised’, 36 Nat. Res. J. 549 (1997). The United States has since abandoned the Harmon Doctrine, but some states apparently still adhere to it. See Kevin P. Scanlan, Note, ‘The International Law Commission’s First Ten Draft Articles on the Law of the Non-Navigational Uses of International Watercourses: Do They Adequately Address All the Major Issues of Water Usage in the Middle East?’, 19 Fordham Int’l L.J. 2180, 2207 (1996).
(138) 20 Aug. 1966, 52 I.L.A. 484 (1967), Ch. 2.
(139) See, e.g., Colorado v. New Mexico, 459 U.S. 176 (1982); see also A. Dan Tarlock, ‘The Law of Equitable Apportionment Revisited, Updated, and Restated’, 56 U. Colo. L. Rev. 381 (1985).
(140) See generally Stephen C. McCaffrey, ‘A Human Right to Water: Domestic and International Implications’, 5 Geo. Int’l Envtl. L. Rev. 1 (1992); Eyal Benvenisti, ‘Collective Action in the Utilization of Shared Freshwater: The Challenges of International Water Resources Law’, 90 Am. J. Int’l L. 384, 406–8 (1996); Abouali, ‘Natural Resources under Occupation’, 411.
(141) See, e.g., International Covenant on Economic, Social and Cultural Rights, 16 Dec. 1966, 993 U.N.T.S. 3, Art. 11(1) (‘adequate food’); International Covenant on Civil and Political Rights, Art. 6 (‘life’). See generally Philip Alston and Katarina Tomaševski (eds.), The Right to Food (Boston, MA: Martinus Nijhoff, 1984).
(142) See generally Harold Dichter, ‘The Legal Status of Israel’s Water Policies in the Occupied Territories’, 35 Harv. Int’l L. J. 565 (1994); Abouali, ‘Natural Resources under Occupation’, 461–95; Dillman, ‘Water Rights in the Occupied Territories’.
(143) Niva Telerant, ‘Riparian Rights under International Law: A Study of the Israeli–Jordanian Peace Treaty’, 18 Loy. L.A. Int’l & Comp. L.J. 175, 189–90 (1995).
(144) For earlier ILC drafts on watercourses, see, e.g., Report of the International Law Commission on the work of its forty-sixth session, UN GAOR, 49th Sess., Supp. No. 10, at 195, UN Doc. A/49/10 (1994); Report of the International Law Commission on the work of its forty–third session, UN GAOR, 46th Sess., UN Doc. A/46/405, 30 I.L.M. 1563 (1991).
(145) Convention on the Law of the Non–Navigational Uses of International Watercourses, GA Res. 51/229, annexe (21 May 1997), 36 I.L.M. 700 (1997).
(146) See Aaron Schwabach, ‘The United Nations Convention on the Law of Non-navigational Uses of International Watercourses, Customary International Law, and the Interests of Developing Upper Riparians’, 33 Tex. Int’l L. J. 257, 258 (1998).
(147) Stephen C. McCaffrey and Mpazi Sinjela, ‘The 1997 United Nations Convention on International Watercourses’, 92 Am. J. Int’l L. 97, 98 (1998).
(148) Another important development is the International Court’s decision in the Case Concerning the Gabcikovo-Nagymaros Project (Slovakia v. Hungary), 1997 I.C.J. 3 (1997), 37 I.L.M. 162 (1998), ¶85 (citing the Convention as evidence that international law requires ‘equitable’ sharing of watercourses).
(149) Convention on International Watercourses, Art. 6(1).
(150) McCaffrey and Sinjela, ‘The 1997 Convention’, 101.
(151) Convention on International Watercourses, Art. 6(1)(a).
(152) See Benvenisti and Gvirtzman, ‘The Mountain Aquifer’, 547–50.
(153) See Arizona v. California, 373 U.S. 546 (1963) (majority opinion); but cf. Ibid. 627 (Douglas, J., dissenting) (arguing that apportionment can turn in part on the size of the basin within each competing state). See G. Sherk, ‘Equitable Apportionment After Vermejo: The Demise of a Doctrine’, 29 Nat. Res. J. 656, 577 n. 65 (1989).
(154) See, e.g., American Law Institute, Restatement (2nd) of Torts, §858(1).
(155) See, e.g., Colorado v. New Mexico, 467 U.S. 310 (1984).
(156) Schiff, Israeli Preconditions, 24.