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Assessing the Scope of Palestinian Territorial Entitlement

Article by Ariel Zemach

What is the scope of the Palestinian entitlement to the territory of the West Bank, currently occupied by Israel? The right of the Palestinian people to self-determination and its derivative, a Palestinian right to statehood, have been widely acknowledged. But does the right to self-determination determine the borders of the Palestinian state, giving rise to a Palestinian territorial entitlement to the whole of the West Bank? The Article answers this question in the negative, demonstrating that neither state practice nor the jurisprudence of the International Court of Justice support a rule of customary international law that assigns self-determination considerations a role in the demarcation of international boundaries.

The Article also examines the role of international recognition of title to territory in the resolution of the territorial dispute between Israel and the Palestinians. To what extent does international law empower the international community to resolve a territorial dispute over the objection of an affected party, by pronouncing a collective position that reflects near-consensus? The Article concludes that a collective recognition by the international community of Palestinian title to territories currently occupied by Israel would have neither a probative value nor a constitutive effect under international law, unless such international position takes the form of UN Security Council action in the exercise of its binding powers under Chapter VII of the UN Charter.

The Article further demonstrates that international law does not support an Israeli claim to sovereignty over the occupied West Bank. This inquiry focuses on a critical examination of a theory recently advanced in legal literature, which predicates such a claim on the doctrine of uti possidetis juris. Finally, the article considers the consequences of the absence of a norm of international law governing the demarcation of the border between Israel and the Palestinians.

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