Is there any legal justification for the creation of a Palestinian state?A question was posted on Quora.com as this: "Since the Palestinians rejected the partition plan, is there any legal justification for the creation of a Palestinian state?". I will endeavor to answer that question.
The justification of an Arab Palestinian state exists. It was created in 1922 and ratified in the Treaty of Lausanne. It was originally named “Arab Government of the East”. Today you know it as Jordan. It was created as Arab Palestine and even used overprinted Mandate Palestine stamps.
The justification for Jewish Palestine was defined in San Remo in 1920 and included what is now Jordan. The San Remo Resolution, 1920 (a binding international agreement) stated:
The High Contracting Parties agree to entrust, by application of the provisions of Article 22, the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory, to be selected by the said Powers. The Mandatory will be responsible for putting into effect the declaration originally made on November 8, 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people
A particular point of interest is article 6 of the Mandate
Article 6. The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency. referred to in Article 4, close settlement by Jews, on the land, including State lands and waste lands not required for public purposes.
This is actually the law enabling Jewish "settlement" activity. In essence it was the British governors who failed to adhere to this law.
To appease Ibn Saud, who later became King of Saudi Arabia, the British chopped off a part of the mandate and made it a monarchy with one of Ibn Saud’s relatives. This was also in accordance with the League of Nations mandate:
ARTICLE 25. In the territories lying between the Jordan and the eastern boundary of Palestine as ultimately determined, the Mandatory shall be entitled, with the consent of the Council of the League of Nations, to postpone or withhold application of such provisions of this mandate as he may consider inapplicable to the existing local conditions, and to make such provision for the administration of the territories as he may consider suitable to those conditions, provided that no action shall be taken which is inconsistent with the provisions of Articles 15, 16 and 18″~Palestine Mandate
Professor Eugene V. Rostow, an American legal scholar and public servant, Dean of Yale Law School and served as Under Secretary of State for Political Affairs under President Lyndon B. Johnson, stated that after the partition plan was rejected by Arabs the only legally binding document remains is British Mandate for Palestine (legal instrument) which states:
“Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights ( but not political ) of existing non-Jewish communities in Palestine, or the rights and political ( the word political is especially mentioned ) status enjoyed by Jews in any other country
Nothing about any other entity to the west of the Jordan river besides the Jewish National Home .
Now we get to the United Nations itself. The UN official charter Article 80 ( a binding international agreement)
Except as may be agreed upon in individual trusteeship agreements, made under Articles 77, 79, and 81, placing each territory under the trusteeship system, and until such agreements have been concluded, nothing in this Chapter 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.This in effect means that the partition plan of 1947 was illegal and non-binding. Whether the Arabs accepted or rejected it means nothing, it was illegal under international law. Under the law, the UN agreed to accept all decisions of the League of Nations meaning the boundaries of Arab Palestine and Jewish Palestine.
May 15th 1948, the British Mandate for Palestine ended and the neighboring Arab states invaded Israel and so the Arab occupation began.At the end of this war in which the Arabs had hoped to erase Israel there were ceasefire discussions. The Arabs demanded that it would not be a border. The 1949 Armistice Agreement, also known as the ‘green line”.
The Armistice Demarcation Line is not to be construed in any sense as a political or territorial boundary, and is delineated without prejudice to rights, claims and positions of either Party to the Armistice as regards ultimate settlement of the Palestine question."
Take note: the so-called 1967 border is not a border but a ceasefire line.
When the PLO was created in 1965, they specifically said that the area illegally occupied by Jordan and Egypt were not a part of their demands. After the loss in 1967, the PLO covenant was altered)
Article 24. This Organization does not exercise any regional sovereignty over the West Bank in the Hashemite Kingdom of Jordan, on the Gaza Strip or the Himmah Area.~PLO Covenant 1964
People have said that after 1967, Israel was in violation of the Fourth Geneva Convention, part IV which deals with occupied territory.
Article. 49. Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.If people claim that Israel violates that convention, then why were they silent when Jordan occupied Judea and Samaria? Secondly, what occupied territory? You cannot occupy your own territory. In addition, it is talking about deportations, transfers etc. Explain how that is relevant? In addition, the section deals with sovereign states. That would be Israel and what other state? The Jordanians occupied the area illegally, so what other state?
In addition in 2016, the French courts said that Israel is the legal "occupier" of Judea and Samaria, claiming that the area is Israeli under international law.
All that being said, the so-called "Palestinian" Arabs do not want to live with Jews. Does Israel behave like the Spaniards when the Catalonians elected not to be a part of Spain and reject their demand? Or do we say, "OK, we signed an agreement and area A and B is yours, do whatever you want there". Will the Arabs accept that?