With domestic state practice, the legal status and rights
of indigenous peoples has evolved and crystallized into
international customary law.[1]
For example, the Inter-American Commission on Human Rights
declared that "there is an international customary
law norm which affirms the rights of indigenous peoples to
their traditional lands". The African Court on Human
and Peoples' Rights affirmed that land rights of
indigenous people are protected and that these rights are
"general principles of law".
Among others, Belgium, Britain, France, Germany, Israel
and Luxembourg voted in favor of the Declaration. Since
2007, Australia, Canada, New Zealand and the United
States, who voted against, formally endorsed the
Declaration in 2010. In their relations with Israel, these
states cannot claim that the Declaration does not apply to
Israeli Jews, since such position would amount to blatant
racial discrimination.[2]
According to international law, the Jews are the
indigenous people of the lands referred to as Judea,
Samaria, Palestine, Israel and the Holy Land, and
therefore fulfill the criteria required by international
law. The Jews are the ethnic group that was the original
settler of Judea and Samaria 3,500 years ago, when the
land was bestowed upon the Jews by the Almighty. Leaders
of this world, who chose to make abstraction of history,
misleadingly refer to Judea and Samaria as the "West
Bank" of the Jordan River (which includes Israel) or
the "Occupied Palestinian Territories".
After the Balfour Declaration of 1917, the Treaty of
Lausanne (1923), British Mandate for Palestine (1922), San
Remo Resolution (1920), and Treaty of Sevres (1920)
created international law, and recognized and
re-established the historical indigenous rights of the
Jews to their land. The signatories of these treaties and
the Mandate (Britain, France, Turkey, Japan, Italy, etc.),
are bound by them.
With the Mandate
for Palestine, accorded to Great Britain in August
1922, the League of Nations recognized "the
historical connection of the Jewish people with Palestine
and the grounds for reconstituting their national home in
that country". The Jewish people's right to settle in
the Land of Palestine, their historic homeland and to
establish their state there, is thus a legal right
anchored in international law.
UNDRIP reaffirms the right of the Jewish people as the
indigenous people, and "especially their rights to
their lands, territories and resources."
Recent UN General Assembly Resolutions stating that the
settlement of Jews in Judea Samaria is contrary to
international law are no more than recommendations and
have never led to amendments of existing binding treaties.
UN Security Council Resolutions, stating that Jewish
communities in Judea and Samaria are illegal, are not
binding. Only resolutions taken under Chapter VII of the
UN Charter are binding on all UN member states. For
example, Security Council Resolution 2334 was adopted on
December 23, 2016 by a 14–0 vote. Four permanent members
of the Security Council -- China, France, Russia and the
United Kingdom -- voted in favor; the US abstained. This
resolution was not adopted under Chapter VII of the
Charter. It is not binding.
That resolution states that Israel's settlement activity constitutes a "flagrant violation" of international law. It has "no legal validity". This resolution violates the UNDRIP, the British Mandate and the other treaties.
That resolution states that Israel's settlement activity constitutes a "flagrant violation" of international law. It has "no legal validity". This resolution violates the UNDRIP, the British Mandate and the other treaties.
The right of the Jewish people to "settle" in
the so-called West Bank, and Israel's right to annex parts
of Judea and Samaria (part of Palestine) derive from the
Mandate (Levy
Report of July 9, 2012). Pursuant to the Mandate, the
right to annex some parts of Judea and Samaria is a direct
consequence of the right of the Jews to settle in all
Palestine i.e. the territory of the 1936 Mandate.
Article 80 of the United Nations Charter (1945) recognized
the validity of existing rights that states and peoples
acquired under the various mandates, including the British
Mandate for Palestine (1922), and the rights of Jews to
settle in the land (Judea and Samaria) by virtue of these
instruments. (Pr. E. Rostow). These rights cannot be
altered by the UN.
"Except as may be agreed upon in individual trusteeship agreements...nothing in this Charter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties." (Article 80, paragraph 1, UN Charter)
In a series of decisions and advisory opinions on Namibia,
the International Court of Justice (ICJ) ruled that a
League Mandate is a binding international instrument like
a treaty, which continues as a fiduciary obligation of the
international community until its terms are fulfilled. In
the case of Namibia, the Court upheld the Security
Council's ruling that South Africa had abandoned its
rights as Mandatory Power by breaching some of its
fundamental duties. The Mandate survived as a trust, based
on legal principles confirmed by Article 80 of the
Charter.
Like the South West African Mandate, the Palestine Mandate
survived the termination of the British administration as
a trust under Article 80 of the UN Charter (Pr. E Rostow).
Jewish rights of "settlement" in the so-called
"West Bank" therefore exist; it cannot seriously
be contended, as the EU, France, Britain, Russia, China
and other states do, that Jewish communities in the West
Bank are illegal and that annexation is contrary to
international law. This position is political, not legal.
Despite UN resolutions to the contrary, the establishment
of Israeli civilian settlements in the West Bank is not
inconsistent with international
law.
Israel, the Jewish State, as a member of the international
community has the right but also the duty to fulfill the
Mandate that most nations disregarded, fearing terrorism
and the Muslim world, and animated by 2,000 years of
religious hatred and anti-Semitism.
One hundred and three years passed since the Balfour
Declaration, 73 years since the 1947 UNGA Resolution 181
was rejected by the Arab states, 52 years since the 1967
Six Day War, and 27 years since the Oslo Accord. The Oslo
Accords of 1993 and 1995 were signed but did not lead to
peace. The Palestinian Authority (PA) does not want peace;
they refused Israel's offers, made in 2000 and in 2008,
for a Palestinian state and to live in peace.
The participation of the Palestinian Authority security
apparatus in the murders of Jews since 1993 is proof, as
well as the pay-to-slay program for prisoners implicated
in terror-related offenses. PA President Mahmoud Abbas'
threats that the Palestinians will provoke an
"uprising" after the Bahrain Conference and
after an annexation should be taken seriously. Abbas is
definitively not interested in peace.
Israel has the duty to draw the logical consequences of
this behavior and annex all or some of the territories in
Area C, to secure the existence of its population within
secure borders, and to be able to receive those of the
millions Jews still living in exile who wish to settle in
Israel.
Michel Calvo was born in Tunis, Tunisia. An expert in international law, he was a member of the International Court of Arbitration representing Israel. He is the author of The Middle East and World War III: Why No Peace? with a preface by Col. Richard Kemp, CBE.
[1]
S. Wiessner, 'The United Nations Declaration on the Rights
of Indigenous Peoples' in A Constantines and N. Zaikos
(eds.), The Diversity of International Law
(Brill, Leiden, 2009) at 343–362.
[2]
France, which voted for the Declaration, pushed for a
tough EU response to any Israeli annexation move. This is
no surprise since on June 2015, the Committee on the
Elimination of Racial Discrimination remains concerned by
the failure of France to fully recognize the existence of
indigenous peoples in its overseas territorial
collectivities.
