Aboriginal Rights of the Jewish People
By Allen Z. Hertz
"The Jewish people have forged a successful state in their historic homeland," said U.S. President Barack Obama in his speech to the U.N. General Assembly on September 21, 2011. This theme of "people" and "historic homeland" has for centuries resonated with most Jews round the world. However, the president's words were even more welcome, because our own time witnesses an increasingly bitter controversy over the Jewish people's right to political self-determination in a part of its aboriginal homeland.
That fierce debate inevitably revolves around the political and legal doctrine of the self-determination of peoples. There is also the companion doctrine of aboriginal rights, because the Jewish people is a small indigenous minority in the Arab Middle East, which in turn is an important part of the greater Muslim world that also includes key countries like Turkey, Iran, Pakistan, and Indonesia. To speak of aboriginal rights suggests that there is significant moral and legal weight to the circumstance that the Jews -- periodically persecuted and perennial victims of discrimination -- nonetheless for more than twenty-five centuries kept some demographic and cultural ties to their aboriginal homeland. And is there not added moral and legal weight where that particular people's aboriginal rights have already been explicitly recognized in the relevant treaties, which are the highest source of international law?
The concept of aboriginal rights has been well understood by other peoples -- e.g., by the Greeks in the early 19th century, when they fought for independence from the Ottoman Empire. Now speaking articulately about their aboriginal and treaty rights, the Indian tribes of Canada astutely perceive that law is akin to an ongoing discussion about rights, in which it is essential to offer meaningful arguments. And that discussion is one where a people gets to tell its own story, which can also become a compelling narrative that engages the conscience of others who are more powerful.
Palestinians "a people" but Jews not?
Denying or minimizing Jewish rights is an integral part of the ongoing war against the Jewish people and Israel. For example, Palestinian leader Mahmoud Abbas and Iranian President Mahmoud Ahmadinejad deny that the Jews are a people, within the context of the modern political and legal doctrines of aboriginal rights and the self-determination of peoples. However, there is an enormous body of archaeological and other historical evidence demonstrating that the Jewish people, like the Greek people or the Han Chinese people, is among the oldest of the world's peoples. The early modern European peoples probably derived their understanding of what it means to be a people in history principally from the example of the Jewish people as set out in the Bible.
What is a people?
Linguists theorize about a proto-Semitic language which perhaps suggests kinship among the ancient Semitic populations, long before the birth of Hebrew and then Arabic. But "peoplehood" is about much more than genetics. It is also a complex sociological phenomenon -- an abstraction, yet nonetheless one of the principal motors of world history. Opting to self-identify consistently as a specific people, a human population takes a name and shares a variable range of relatively distinct civilizational features -- e.g., ancestors, history, homeland, territory, language, literature, religion, culture, economy, and institutions. And, in addition to its subjective identity, a people also normally attracts objective identity in the eyes of its friends and enemies, who frequently provide valuable historical evidence about its existence and characteristics.
And this reference to historical evidence is critical, because the political and legal doctrines of aboriginal rights and the self-determination of peoples cannot apply retroactively. This means that a people, without a continuous identity stretching back to the relevant historical time, cannot today make an aboriginal or other claim with respect to that earlier period before its ethnogenesis -- i.e., when it did not yet self-identify as that particular people. And to be sure, new peoples are always emerging -- while older peoples may disappear, though genes and cultural characteristics may to some extent persist in populations of one or more other peoples.
Names/extent of the aboriginal home
Generally and locally, most Muslims and Arabs stubbornly reject the legitimacy and permanence of Israel as "the" Jewish State -- i.e., as the political expression of the self-determination of the Jewish people in a part of its larger aboriginal territory. That ancestral homeland stretched from the Mediterranean Sea to lands east of the Jordan River. For example, the Bible tells us that the Twelve Tribes straddled the Jordan River, as did the realm of Kings David and Solomon and their successors. Since antiquity, this homeland was known to Jews as "the land of Israel" -- in Hebrew, Eretz Israel (ארץ ישראל). "The Holy Land" as later understood by Christians (Latin, terra sancta) and by Muslims (Ottoman Turkish, arz-i mukaddes) was for theological reasons geographically identical to the earlier concept of Eretz Israel.
For Christians everywhere, the Holy Land was also "Palestine." This toponym was an historical reference honoring the memory of a religiously significant province of the Roman-Byzantine Empire, where Christianity was the official faith. Maps prepared in Europe and the Americas, from the 17th century to the beginning of the First World War (1914-1918), regularly imagined a then nonexistent Palestine, which was generally portrayed as also including lands east of the Jordan River. From the late 4th century CE until 1946, "historic" Palestine has always included part or all of the territory that is now the Hashemite Kingdom of Jordan. Thus, the 1911 edition of the Encyclopaedia Britannica says that the Jordan River divides Western from Eastern Palestine, which ends where the Arabian desert begins.
The Jewish people in the Holy Land
Though classical demography is a guessing game, Jews may have numbered several million in the early Roman Empire. For more than a century before the 70 CE destruction of the Second Temple, most Jews preferred living in various places around the Mediterranean basin, rather than in their aboriginal homeland. Nonetheless, Jews remained the majority in the Holy Land, perhaps until the late 6th century CE. Though some Jews always preferred to stay in their homeland, others were moving in and out -- a migratory pattern that endures to this day. The Jewish Bible, the Christian Gospels, and the Muslim Koran all refer to the Jewish people and its connection to the Holy Land. Since antiquity, there has never been a time when Jews were absent from the Holy Land. Even when Jewish numbers dropped to a low point, the Holy Land was still home to rabbis famous throughout the Jewish world. With at least 2,600 years of continuous history, the Jewish people kept a subjective-objective identity that always included demographic and cultural links to its native land.
In the first four centuries CE, the Jews of the Holy Land played a key role in Jewish civilization, including completion of the Jerusalem Talmud. Documents from the Cairo Geniza reveal much about Jewish life in the Holy Land from the Muslim conquest in the early 7th century CE to the Crusader victory in 1099. During the Crusader period, Acre was an important center for Jews, about whom we learn from a variety of sources, including the 12th-century Jewish travelers Benjamin of Tudela and Rabbi Petachia of Ratisbon. During the Mamluk period (1250-1516), Jerusalem was seat for a deputy to the Egypt-based nagid who headed all the Jewish communities of the sultanate. Fifteenth-century Holy Land Jews also feature in the letters of Rabbi Obadiah ben Abraham Bertinoro and the travelogues of Christian pilgrims like Arnold van Harff, Felix Fabri, and Martin Kabatnik. Richer are sources from the four Ottoman centuries ending in 1917. For example, 16th-century Ottoman registers (defter-i mufassal) record the names of Jewish taxpayers. Evidence also comes from documents like some late 18th-century account books of the Jerusalem Jewish community. With the 19th century, travel books and consular reports join a flood of other sources about local Jews who also told their own stories. Though the number of Jews grew absolutely, they remained a fraction of the total population which, including the Muslims and the Christians, remained astonishingly low -- in fact, much lower than in the early Roman Empire.
Aboriginal rights of the Greek people
The modern Jewish people is aboriginal to its ancestral homeland in the same way that the Greek people is aboriginal to Greece. In the early 19th century, some prominent personalities like the English poet Lord Byron enthusiastically championed the aboriginal rights of the Greek people. Partly for this reason, some of the European powers intervened to help the Greeks win their independence from the Ottoman Empire. In 1821, when the Greeks began their revolt against the sultan, they were a minority of the population in the territory that is now modern Greece. In the 19th and 20th centuries, modern Greek history has been partly about the hundreds of thousands of Diaspora Greeks who gradually returned to their ancestral homeland. And, after the First World War, U.K. Prime Minister David Lloyd George unsuccessfully backed the aboriginal rights of the Greek people to the Anatolian littoral. There, large Greek communities had persisted from antiquity until 1922, when they were finally destroyed by the Turks, who are not aboriginal to Anatolia.
Aboriginal rights of the "First Nations"
The modern Jewish people claims both aboriginal and treaty rights to parts of its ancestral homeland. Aboriginal and treaty rights are also claimed by the aboriginal peoples of Canada, including the "First Nations" or Indian tribes. The First Nations strongly believe that their sovereign rights to their tribal lands extend back to the beginning of time -- i.e., long before the origins of Canadian, European, and international law. In the same way, the Jewish people's claim to its ancestral homeland reaches back to antiquity and thus antedates the post-classical birth of both Europe and the Islamic civilization.
Conceptually, the Jewish people is aboriginal to its ancestral homeland in the same way that the First Nations are aboriginal to their ancestral lands in the Americas. Common Law courts began recognizing aboriginal rights in the 19th century. From 1982, the rights of the aboriginal peoples of Canada have explicitly featured in Canada's Constitution Act. The Supreme Court of Canada has decided that, where a First Nation maintains demographic and cultural connections with the land, aboriginal title (including self-government rights) can survive both sovereignty changes and the influx of a new majority population resulting from foreign conquest. Dealing with claims of right on all sides, the Court seeks to reconcile the subsequent rights of newcomers with the aboriginal rights of a First Nation. The concept of aboriginal rights is also an important legal topic in Australia, New Zealand, and the U.S., and is now receiving more attention internationally.
Spot-on is the comparison between the aboriginal rights of the Jewish people and those of the First Nations of the Americas. Between the sea and the Jordan River, "the Jewish people" is the aboriginal tribe and "the Arab people" is the interloping settler population, including newer waves of Arab immigration in the 19th and 20th centuries. Whether a thousand years ago or today, Jews returning to join other Jews in the Holy Land are not to be compared with the 17th-century Pilgrim Fathers who had neither antecedents nor kin in the New World.
Aboriginal rights of the Jewish people
Like the Greek people or the First Nations, the Jewish people has for more than two millennia continuously affirmed its connection to its ancestral homeland. Of all extant peoples, the Jewish people has the strongest claim to be aboriginal to the Holy Land, where Judaism, the Hebrew language, and the Jewish people were born (ethnogenesis) around 2,600 years ago. Before then, the Holy Land was home, inter alia, to the immediate ancestors of the Jewish people, including personalities like Kings David and Solomon, famous from the Jewish Bible. And at that time and still earlier, the Holy Land was also home to other peoples -- like the Phoenicians, Ammonites, Moabites, Edomites, and Philistines -- which have long since vanished from the world, with nobody today entitled to make new claims on their behalf -- e.g., by reason of recently alleged genetic descent.
What, then, of that dramatis persona of world history known as "the Arab people"? As such, the great Arab people is aboriginal to Arabia, not the Holy Land. Judaism, the Hebrew language, and the Jewish people were already established in the Holy Land for about a thousand years before the 6th-7th-century-CE ethnogenesis in Arabia of the great Arab people, the birth of which was approximately coeval with the emergence of Islam and classical Arabic.
Though local Jews suffered persistent discrimination and periodic persecution, neither the Arab people -- from the first Muslim conquest in the 7th century CE -- nor subsequent invaders succeeded in eradicating the Jewish population or ending the links between the Jewish people and the Holy Land. Jews are today no longer a minority between the sea and the Jordan River. This means that the Jewish people can now draw greater benefit from the doctrine of the self-determination of peoples, which normally allocates territory by the national character of the current local population. At the same time, the Jewish people also continues to affirm aboriginal rights to parts of its ancestral homeland. And it will be seen that these Jewish aboriginal rights still have some political and legal significance in the ongoing dispute over the refusal of most Muslims and Arabs to recognize the legitimacy and permanence of Israel as the Jewish State.
The Jewish State
Most Jews round the world see Israel as "the" Jewish State -- i.e., as the political expression of the self-determination of the Jewish people in a part of its larger ancestral homeland. Like other peoples, the Jewish people has a right to self-determination. Though the self-determination of the great Arab people is expressed via twenty-one Arab countries, Israel is the sole expression of the self-determination of the great Jewish people. Some Western thinkers are now uncomfortable with the idea of a nation-state as the homeland of a particular people. If so, there is no special reason to target Israel, because other countries are also nation-states. For example, also nation-states are Japan, Italy, Greece, and the countries of the Arab League. In theory and practice, the nation-state model does not have to conflict with fundamental civil and human rights for aliens or for citizens who do not ethnically self-identify as members of the majority people. Moreover, the nation-state can also accommodate collective rights for one or more minority peoples. And, with regard to such individual and collective rights, Israel's domestic law is comparable to what is provided by other legal systems, and superior to what is offered in other Middle Eastern states.
Israel born of the Ottoman Empire
Until the end of the First World War, the Holy Land was part of the Ottoman Empire. Thus, Israel and two dozen other modern countries are successor-states of the Ottoman caliphate, which for four hundred years (1516-1920) was the principal power in the Near and Middle East. Apart from the ruling Turks, the Ottoman Empire was home to other peoples including Albanians, Greeks, Slavs, Copts, Armenians, Kurds, Arabs, and Jews. For centuries, these Jews lived in a variety of Ottoman venues, including Constantinople, Salonika, Cairo, Alexandria, Damascus, Aleppo, Mosul, Baghdad, Basra, Tiberias, Hebron, Safed, Jaffa, and Jerusalem.
In October 1914, the Ottoman Empire opted to enter the First World War to fight against the U.K. and its Allies. As the fortunes of war began to favor the British Army, the U.K. government addressed the question of what to do with the multi-national Ottoman lands both in the light of current British interests and the 19th-century liberal doctrine of the self-determination of peoples. In this regard, the father of modern political Zionism, Theodor Herzl, in his 1896 manifesto The Jewish State, had already proclaimed that Jews, though living in many different places around the globe, constitute one people for the purpose of self-determination.
Why the Balfour Declaration?
In October 1917, the U.K. Cabinet decided to favor plans to create "a national home for the Jewish people." The venue was said to be "Palestine," a then-nonexistent country of uncertain extent, that was ultimately described by the League of Nations in 1922 as "the Palestine Mandate," that also included the Trans-Jordan Emirate first formed in 1921. The U.K. government's promise of "best endeavours" to create "a national home for the Jewish people" was motivated by a desire to help realize the Jewish people's long-standing claim to self-determination in its ancestral homeland, to shore up support for the Allied war effort among Jews in revolutionary Russia and the U.S., and to help cover the eastern flank of the Suez Canal, which was then the crucial gateway to British India. The intention to create this "national home for the Jewish people" was announced in the November 1917 Balfour Declaration.
No "Palestinian people" in 1919
As the U.K. worked to defeat the Ottoman Turks, the world also began to learn about the national claims of the great Arab people. Here recall the wartime exploits of Lawrence of Arabia and the Hashemite Prince Feisal ibn Hussein, both of whom were present at the 1919-1920 Paris Peace Conference. There, a powerful searchlight was trained on the doctrine of the self-determination of peoples, including the claims of the great Arab people. But nobody in Paris knew about a distinct "Palestinian" people. Had there then been such a Palestinian people, its existence would have been known to Prince Feisal, U.S. President Woodrow Wilson, France's Prime Minister Georges Clemenceau, U.K. Prime Minister David Lloyd George, and to the other leaders who came to work on the peace treaties. This assessment is confirmed by extensive local testimony and petitions collected in 1919, by the U.S. King-Crane Commission. Its report to President Wilson indicated that, whether Muslim or Christian, the Arabs of the Holy Land specifically rejected any plan to create a new country called "Palestine," which they perceived to be part of the detested Zionist project.
Never a Muslim state called "Palestine"
In 1919-1920, most local Arabs backed then-current plans to create a new Arab state of Greater Syria, which they expected would cover what is today Syria, Lebanon, Jordan, the West Bank, Gaza, and Israel. For Muslims in the Holy Land, this broader geographic focus of political self-identification was natural, because a large province of Damascus (Ottoman Turkish, Şam) had at various times featured prominently in Muslim and Ottoman history. By contrast, the Ottoman Empire never had a province or sub-provincial unit called, or co-extensive with, "Palestine," no matter how conceived. Nor had Muslim history ever known a state or province called "Palestine." After the 7th-century-CE Arab conquest, the caliphate for a time kept the old Roman and Byzantine toponym Palaestina, arabicized as Filastin (فلسطين), for one small district or jund (جند) of the province of Damascus. Straddling the Jordan River, this jund Filastin was just a fraction the size of the larger Palestine that was -- a province of the Roman-Byzantine Empire, then for centuries remembered by Christians everywhere, and finally realized again, in 1922, as "the Palestine Mandate" that included both the Trans-Jordan Emirate and the "national home for the Jewish people," from the sea to the Jordan River.
Global self-determination exercise
The Paris Peace Conference was concerned with the task of accommodating the political interests of the victorious Allied and Associated Powers with the claims to self-determination of well-known peoples with long histories of self-affirmation and bitter suffering under foreign oppression. Thus, considered were difficult and entangled issues touching the self-determination of such famous peoples as the Chinese, the French, the Germans, the Poles, the Finns, the Letts, the Latvians, the Estonians, the Czechs, the Slovaks, the Slovenes, the Croats, the Serbs, the Italians, the Hungarians, the Romanians, the Bulgarians, the Greeks, the Turks, the Kurds, the Armenians, the Arabs, and the Jews. In this larger context, just one decision among many was creation of "a national home for the Jewish people." And it is noteworthy that "national home for the Jewish people" was reiterated from 1917 to 1922, in a series of consistent declarations, resolutions, and treaties that were ex post facto blessed by the 1923 Lausanne Treaty with the Turkish Republic, as successor to the Ottoman Empire.
Why a national home for the Jewish people?
The decision to realize the self-determination of the Jewish people in a part of its aboriginal territory was the rationale for the 1922 creation of "a national home for the Jewish people," from the sea to the Jordan River. With a legal status akin to a multilateral agreement or treaty, the Palestine Mandate of the League of Nations (July 24, 1922) entrusted the U.K. government with a new jurisdiction that included both Trans-Jordan and the national home for the Jewish people. In 1946, Trans-Jordan was by treaty severed from the Palestine Mandate to become the independent Arab state called "the Hashemite Kingdom of Jordan." In 1948, the national home for the Jewish people became the independent Jewish state called "Israel."
Decision-makers at the Paris Peace Conference knew the Holy Land to be significantly under-developed and under-populated. They also understood that the new national home for the Jewish people would initially lack a Jewish majority population. However, there was a conscious choice to refer not just to circa 85,000 Jews then living locally, but also to the past, present, and future of the great Jewish people. In this context, the national home for the Jewish people was understood to also pertain to the 14 million Jews worldwide, including the one million then living in the Near and Middle East.
The international decision to create a national home for the Jewish people was made not so much on the basis of local demographics, but explicitly due to "the historical connection of the Jewish people with Palestine." This was clear recognition of the Jewish people's long-affirmed and continuing links to its aboriginal homeland. The Palestine Mandate of the League of Nations also contained detailed stipulations requiring the development of the national home for the Jewish people. For example, specific provisions called for "close settlement by Jews on the land," from the sea to the Jordan River.
Did Arabs deserve all the Middle East?
Failure to create a national home for the Jewish people would have meant denying the great Jewish people a share in the partition of the multi-national Ottoman Empire, where Jews had lived for centuries, including in the Holy Land. Failure to create a national home for the Jewish people would also have meant that the great Arab people would have received almost the whole of the Ottoman inheritance. That result would have been unacceptable to David Lloyd George, Woodrow Wilson, and their peers, because they significantly understood that the claim to self-determination of the great Jewish people was as compelling as that of the great Arab people.
The Paris decision-makers strongly insisted that they had also done justice to the claims of the great Arab people, which they believed they had freed from 400 years of Turkish rule and helped on the road to independence via creation or recognition of several new Arab states on lands that had formerly been subject to the Ottoman sultan. For example, 77% of the territory of the Palestine Mandate was Trans-Jordan, which finally became an independent Arab state in 1946.
The international decision to create a national home for the Jewish people, from the sea to the Jordan River, did not result in the displacement of local Arabs. To the contrary, from 1922 until 1948, the Arab population of the national home for the Jewish people almost tripled, while the Jewish population there multiplied eight times. The later problem of Arab refugees (about 726,000) from the national home for the Jewish people, and Jewish refugees (about 850,000) from Arab countries only emerged from May 1948, when local Arabs allied with several neighboring Arab states to launch a war to destroy the newly independent Israel. Their declared intention was to exterminate the Jews living between the sea and the Jordan River, just as the Turks in 1922 had spectacularly succeeded in liquidating the aboriginal Greek communities of the Anatolian littoral.
Who self-identified as Palestinian before 1948?
The Jewish people has kept the same name and subjective-objective identity in each century since ancient times. By contrast, among local Muslim Arabs, the formation of a distinct, subjective-objective "Palestinian" identity did not generally occur before the second half of the 20th century. And this is understandable, because the fifty years from the Ottoman collapse to the 1967 Six-Day War was a short time for the birth of a new people. Moreover, relatively few Muslim Arabs would have wanted to self-identify as "Palestinian" until three preconditions had been satisfied.
First precondition was political resurrection of the ancient toponym "Palestine" via the 1917 Balfour Declaration and the 1922 creation of the Palestine Mandate, which consisted of Trans-Jordan and the national home for the Jewish people, from the sea to the Jordan River.
Second precondition was the 1946 separation from the Palestine Mandate of an independent Arab state called Jordan. This is significant because the new Palestinian identity was directly focused on the territory of the national home for the Jewish people. This was then notably that smaller Palestine, from the sea to the Jordan River, that existed for less than two years -- i.e., from May 25, 1946 (the birth of Jordan) until May 14, 1948 (the birth of Israel). Before 1946, that precise territorial focus was largely absent, because as a border the Jordan River then had relatively little meaning for the self-identification of most of the Muslim Arabs living on either bank. This factor was implicitly recognized by the U.K. Peel Commission, which in 1937 recommended the creation of a new Arab state to consist of both Trans-Jordan and the Arab-inhabited parts of the national home for the Jewish people. And more than a decade later, this factor was again implicitly recognized by King Abdullah I, who in 1950 annexed to the Kingdom of Jordan the West Bank and East Jerusalem that his Arab Legion had conquered in the 1948-1949 war.
Third precondition was the abrupt jettisoning in May 1948 of the appellation "Palestine" in favor of "Israel" as the name for the newly independent Jewish state. Before 1948, the adjective "Palestinian" had too often been used as synonym for "Jewish." And to be sure, the name "Palestine" and many other specific features of the 1922 Palestine Mandate were too closely associated with Jews and Zionism to have offered much of a focus for Muslim Arabs. Therefore, they generally did not identify as "Palestinian" until the "Palestine" trademark had been definitely abandoned by the Jews.
The Palestinian people in the 1960s
Arab leaders had themselves been slow to recognize the existence of a distinct Palestinian people with a right to self-determination. For example, as principal Arab leader at the Paris Peace Conference, Prince Feisal had specifically accepted the plan to create "a national home for the Jewish people" in Palestine. And his father, the Hashemite King of the Hedjaz (later part of Saudi Arabia) was party to the 1920 Sevres Treaty that explicitly stipulated that there would be "a national home for the Jewish people" in Palestine. Around three decades later, the governments of Egypt and Jordan showed how little regard they had for the self-determination of a Palestinian people. First, they rejected the 1947 U.N. General Assembly resolution recommending the partition of the territory of the national home for the Jewish people into two new independent states, the one Jewish and the other Arab. Second, no Palestinian state was created between 1948 and 1967, when Egypt held the Gaza Strip and Jordan had East Jerusalem and the West Bank. The loss of those lands by Egypt and Jordan in the Six-Day War strongly encouraged the tendency of local Arabs to see themselves as distinct from the Arabs of Egypt and Jordan. Now more clearly spearheading their own irredentist struggle, local Arabs had added incentive to self-identify as "Palestinian." And all the more so, since the new identification effectively expressed their stubborn determination to eventually master all the territory that in 1922 had been internationally recognized as the "national home for the Jewish people." And certainly, history knows of other instances in which new national identities have been forged in the fire of territorial dispute and ethno-religious hatred.
Peaceful rights reconciliation
This analysis neither denies the current existence of a distinct Palestinian people nor suggests that this newborn Palestinian people is today without rights, including claims to self-determination, independence, and territory. Rather, there are now "claims of right" on all sides. Urgently required is a peaceful process that respects the dignity of both peoples and effects a reconciliation of the subsequent rights of the newly emerged Palestinian people with the prior rights of the ancient Jewish people. A peaceful process is mandatory, inter alia, because the Jewish people's aboriginal rights include "the right to life." Namely, Jews have a right to live safely in their native land -- and even more so, in that part of their aboriginal homeland, that was explicitly recognized as "national home for the Jewish people" in a series of declarations, resolutions, and treaties from 1917 to 1923. This significantly means that the Palestinian people lacks the right to wage a "war of national liberation" against the Jewish people, which is legitimately sited between the sea and the Jordan River. There, the Jewish people lives "as of right and not on sufferance," as said by Winston Churchill in 1922.
Sketching a principled peace
One people lacks a right to rule over another people. Thus, a peaceful process for the reconciliation of rights would probably have to respect the doctrine of the self-determination of peoples. For example, a full and final peace treaty concluded today would likely have to waive most Jewish aboriginal and treaty rights with respect to land now mostly inhabited by Palestinians wishing to live in a new Palestinian state. By the same doctrine, the treaty would probably have to include within Israel land now mostly inhabited by Jews. If so, there would probably be no legal requirement to compensate a new Palestinian state for Israel's retention of some territory beyond the 1949 Green Line -- i.e. the armistice demarcation lines (ADL). First, the 1949 armistice agreements with Egypt and Jordan say that the ADL are without prejudice to a final settlement. Second, no Arab government has ever recognized the ADL as the legitimate and permanent borders of the Jewish State. Third, the peace treaties with Egypt (1979) and Jordan (1994) explicitly indicate as Israel's international borders not the ADL, but rather to the west the old Sinai boundary with Egypt, and to the east the Jordan River. Fourth, the Jewish people's aboriginal, treaty, and self-determination rights rest on principles so fundamental that they probably outweigh any arguments favoring the ADL.
A full and final peace treaty could probably also rely on aboriginal rights to ensure that Jews keep access to certain religious sites, sacred to Judaism for more than two millennia.
Finally, Jewish aboriginal and self-determination rights together argue for safeguards to ensure that creating a new Palestinian state cannot be a stepping stone toward eventual destruction of Israel. Because Jews remain a vulnerable minority in the Muslim and Arab Middle East, a full and final peace treaty would probably need to have a number of effective stipulations for Jewish security. And such safety measures should probably embrace both military provisions and an article unequivocally recognizing the legitimacy and permanence of Israel as the Jewish State -- i.e., as the political expression of the self-determination of the Jewish people in a part of its aboriginal homeland.
Allen Z. Hertz was senior advisor in the Privy Council Office serving Canada's prime minister and the federal cabinet. He formerly worked in Canada's Foreign Affairs Department and earlier taught history and law at universities in New York, Montreal, Toronto, and Hong Kong. He studied European history and languages at McGill University (B.A.) and then East European and Ottoman history at Columbia University (M.A., Ph.D.). He also has international law degrees from Cambridge University (LL.B.) and the University of Toronto (LL.M.).