Editors’ Note: The Land of Israel is the historic homeland of the Jewish people and has never been governed independently by any other people. The return of the Jews to the land in large numbers – and the international community’s support for Israel’s independence – is the restoration of an indigenous people to its rightful place in the community of nations. Israel’s grounding in international law is essential to its story and no one provided a better education than Professor Eugene V. Rostow. This is the third and final installment of Prof. Rostow’s thinking excerpted from the 1980 Yale International Law Journal article, ”Palestinian Self-Determination: Possible Futures for the Unallocated Parts of the British Mandate.”
Legally, politically, and strategically, the obvious solution for the Palestinian problem is peace between Israel and Jordan in accordance with Resolutions 242 and 338. Such a settlement could take many forms, but peaceful settlement is the only way to end the problem of Palestine in ways that satisfy the terms of the Mandate and of the Security Council Resolutions that have sought to carry out its principles.
Thus far, the most promising idea for peace between Jordan and Israel is the proposal put forward by the Israeli Foreign Minister at Strasbourg more than a decade ago. That proposal would establish definitive boundaries between Jordan and Israel, dividing the West Bank and perhaps making the Gaza Strip part of Jordan; unite the two countries in a common market (or confederation) open also to other states in the area; give Jordan a free port on the Mediterranean, probably at Haifa; make special arrangements for Jerusalem which would take fully into account all the religious interests in that city; and establish appropriate security dispositions.
Jordan rejected the Strasbourg plan when it was announced. It has continued to reject all proposals for peace based on Resolution 242.
So long as Jordan refuses to carry out its obligations under Resolution 338, there is no way to fulfill the policies of the Security Council. Israeli annexation of the West Bank and the Gaza Strip would not be recognized by the international community for the same reasons that led to the rejection of Jordan’s attempt to annex the West Bank in 1951. The territories are parts of the Mandate… their disposition should be arranged in ways that fulfill the terms of the Mandate…
There is no foundation in international law for the idea of a second Arab Palestinian state in the West Bank and the Gaza Strip. And it would be political and military folly for the West to force Israel to acquiesce in such a scheme. Establishing a new Arab state there would injure Western interests, and advance those of the Soviet Union, by strengthening the Soviet position in the region, and by increasing Arab dependence on Soviet protection. It would weaken Israel, which, since the fall of Iran, is the most important Western ally in the area.
Above all, such a policy would abandon the moral and political obligations towards Israel, which the victorious Allies assumed in 1919, and reiterated through the United Nations Charter in 1945.
Israel’s legitimacy as a state rests on much more than the usual criteria of international law–de facto statehood; membership in the United Nations; recognition; the success of its armed forces; the weight of history; and so on. In 1922, the organized international community of the day, the League of Nations, with the special concurrence of the United States, which was not a member, established the Palestine Mandate. Through that Mandate, it invited Jews to come to live in Palestine as their national home. In reliance on that promise, the Jewish community in Palestine developed, and, with the approval of the Security Council and the General Assembly of the United Nations (the successor to the League), became the state of Israel. The solemn obligations of the international community to Israel implicit in these events survive not only as a special moral and historic element in Israel’s status within the family of nations, but as a trust still applicable, with other norms and interests, to the task of fashioning a just and durable future for the West Bank and the Gaza Strip. For the West to betray those commitments would be to take another long step towards dissolving the world community organized as the United Nations into a condition of universal war.
The functions of law in the life of international society are no different from its functions within national societies. In one realm as in the other, law offers society a way – the principal way – to fulfill its aspirations for order and for justice. Law is both a process for settling disputes peacefully and a model for behavior – a pattern of behavior deemed right. Despite the absence of a “sovereign” to “command,” international law is quite as legitimate as municipal law, and for the same reasons. It develops in much the same way. And it is obeyed about as much.
The long, bitter, and thus far unresolved conflict over the place of Israel in the state system raises this stark issue. For more than thirty years the Security Council, speaking for the organized international community, has insisted that Israel is a legitimate state, born of the Mandate, and that members of the United Nations are therefore legally and morally bound to make peace with it in accordance with the terms of the Mandate and of the Security Resolutions which seek to apply them. Throughout this period, a shifting but important group of states, strongly backed by the Soviet Union, has asserted that the Mandate and all that flowed from it was illegal, and that the existence of Israel is in itself an aggression against the sovereignty of the Palestinian people, defined as the descendants of those who lived in the territory of the Mandate in 1922.
The Security Council demands peace between Israel and Jordan – a peace that would settle the territorial dispute between them about the West Bank and the Gaza Strip. Jordan, following the Rabat decision, stands aside, and urges that the PLO be accepted as the sole legitimate representative of the Palestinian people. Resisting all Western political pressure, the PLO refuses to modify its firm commitment to the principle of a single secular state for the entire territory of the Palestine Mandate.
For these reasons, the vehement effort to force Israel to accept a PLO state including the West Bank, Jerusalem, and the Gaza Strip rests on a misapprehension. The proponents of “Palestinian self-determination” in this sense believe that such a step would eliminate the only point of dissension between the majority of the Arabs and the West: Palestine. They cannot bring themselves to believe that the object of the campaign for a third Palestinian state is not a peaceful solution of the Palestine problem, but the destruction of Israel. Thus, they fail to address the reality before them, like those who supported Lord Runciman’s proposals for Czechoslovakia and the HoareLaval plan for Ethiopia a generation ago.