European governments have every right to boycott trade with West Bank settlements, according to a leading international counsel, British newspaper The Independent reported Monday. Cambridge professor of international law James Crawford formulated the formal opinion in a 60-page document obtained by The Independent. “There do not appear to be any EC [European Commission] laws which could be breached by a member state taking the decision to ban the import of settlement produce on public policy grounds,” Crawford asserted in the document.
He continued that imposing a ban on trade with settlements would not breach obligations to the World Trade Organization, because “as a member of international law, the West Bank and Gaza cannot be considered to be Israel’s territory.”
Crawford, oddly enough, is Director of the Lauterpacht Centre. Why?
Well, as for Lauterpacht legality, read on:
The international lawyer Dr. Elihu Lauterpacht has written that in order to determine the title to a particular area the normal procedure is to "trace the chain of title back from the present claimant to a holder whose rights were unquestioned".(2)
In the case of Palestine, of which the West Bank is part of, Turkey was the unquestioned holder and one need not go further back than the period of Ottoman rule. In July 1923, Turkey signed the Treaty of Lausanne, in which she renounced her rights and title to various territories which included Palestine.(3) By that time(4) the Council of the League of Nations had already granted the Palestine Mandate to Britain.(5) The question of Sovereignty over mandated territories had puzzled international lawyers for decades and there are a number of possibilities as to where the sovereignty rested. These include the League of Nations, the Mandatory Powers, or that the sovereignty was in abeyance.(6) A possible solution to this question came in 1950 when Sir Arnold McNair in his separate opinion on the International Status of South-West Africa stated that "Sovereignty over a Mandated Territory is in abeyance".(7)
The sovereignty over Palestine when the Mandate over Palestine terminated is discussed by Lauterpacht and he suggested the possibility of a sovereignty gap.(8) In accordance with the opinion of Sir Arnold McNair, this would be a continuation of the Sovereignty vacuum which existed during the life of the League of Nations.
However, since all are agreed that sovereignty was located somewhere or was in abeyance, it has been pointed out by international lawyers that "no mandated territory can be regarded, on the termination of the mandate over it, as a res nullius open to acquisition by the first comer,"(9) and that "sovereignty could only be acquired by lawful action."(10)
Dr. Elihu Lauterpacht (Lecturer in Law at the University of Cambridge): "Jordan was not entitled to claim any of the areas west of the river Jordan [West Bank]" and "Egypt was not entitled to assert sovereignty over the Gaza Strip."(16)
(2) Elihu Lauterpacht, Jerusalem and the Holy Places, (London: The Anglo-Israel Association, 1988), p.38
(3) Lausanne Treaty, signed between British Empire, France et al. on one side and Turkey on the other, on 24 July 1923, Article 16. The text may be found in The Treaties of Peace 1919-1923 vol.2, (New York: Carnegie Endowment for International Peace, 1924), pp.959ff.
(4) The Palestine Mandate was signed in London on 24 July 1922.
(5) British Mandate for Palestine, League of Nations, Official Journal, 3rd year, no.8, August 1922, Annex 391, pp.1007-12.
(6) Yehuda Blum, "The Missing Reversioner", Israel Law Review, vol.3, no.2, April 1968, p.282; Alan Levine, "The Status of Sovereignty in East Jerusalem and the West Bank," New York University Journal of International Law & Politics, vol.5, no.3, Winter 1972, p.489.
(7) International Court of Justice, Reports of Judgments, Advisory Opinions and Orders, 1950, International Status of South-West Africa, Advisory Opinion of July 11th, 1950, Separate Opinion by Sir Arnold McNair, p.150.
(8) Lauterpact, op. cit., pp.40-41.
(9) Blum, op. cit., p.283.
(10) Lauterpacht, op .cit., p.42.
(16) Lauterpacht, op. cit., p.44.
And this collection. And this by Julius Stone. And this from Eli Hertz.
In any case,
Prof. Crawford’s opinion rejects arguments suggesting that EU member states are obliged – rather than merely able – to enforce a ban. According to the report, the legalist’s brief will be published by the Trades Union Congress later this week.