12 No. 75 JUSTICE despite stating that it is not “dealing with a bilateral dispute” between Mauritius and the United Kingdom,” made “an unnecessary pronouncement on ‘an unlawful act of a continuing character’” on the part of the United Kingdom.17 Judge Tomka warned that advisory proceedings “are not an appropriate forum for making these kinds of determinations, especially when the Court is not asked to make them and they are not strictly necessary for providing advice to the requesting organ.”18 17. In this case, too, although there is no express reference to “sovereignty” in the General Assembly’s request, by virtue of multiple express references to “Palestinian territory” in Resolution 77/247, and in particular its request for an opinion on the legal consequences arising from Israel’s “annexation of the Palestinian territory occupied since 1967,” the General Assembly has made it clear in this case that a dispute over sovereignty lies at the heart of its request. The scope of this submission 18. This submission therefore addresses three topics: firstly, the nature and legal status of the parties’ respective sovereign legal entitlement to the West Bank and Jerusalem; secondly, the international and bilateral framework for resolution of the conflict; thirdly, the content and status of international law relating to the law of occupation in relation to the conflict. The Court may agree that answers to questions arising from these topics will, in turn, impact on its answers to the question of the propriety of answering the General Assembly’s questions, as well as the merits of the questions themselves, should the Court exercise its jurisdiction to deliver an Advisory Opinion in this case. The nature and legal status of the parties’ respective rights to the West Bank and Jerusalem 19. General Assembly Resolution 77/247 refers to the West Bank, the eastern part of Jerusalem, and the Gaza Strip as “Palestinian territory.” The resolution appears to assume that sovereign rights to this area rest exclusively with the Palestinian people. It disregards any potential claims the State of Israel and the Jewish people may have with respect to some of these areas. We enclose as Annex “A” a comprehensive, separate, submission from the IJL addressing these matters in detail.19 20. In summary of the detailed explanations in Annex “A”, it is incorrect to assume that Israel and the Jewish people have no valid legal claims, under international law, in the West Bank and Jerusalem. Without prejudice to, but without accepting the validity of any Palestinian claims,20 this is plainly a situation of competing claims to sovereign legal entitlement. 21. In law and in fact, for over a century, sovereign legal title over the West Bank (and indeed the Gaza Strip) has been, and continues to be, indeterminate, or in abeyance. This has been the legal position under international law since the end of the First World War, when Turkey (as the successor to the Ottoman Empire) ceded sovereignty of the areas outside of its current borders.21 No agreement, instrument, judgment, opinion, or event with legal effect has changed this status since, as reflected – and explicitly stated – in agreements between the interested parties, and particularly agreements between the Israeli and Palestinian authorities. Under these agreements, the question 17. Id., para. 8. 18. Id. 19. Annex “A” entitled ‘Israel’s Legal Claims to the West Bank’. 20. Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo II), 28 September 1995 (hereinafter “Interim Agreement”). 21. See Annex “A” to this submission.
RkJQdWJsaXNoZXIy MjgzNzA=