Linking the Gaza Strip with the West Bank: - Jerusalem Center For ...

Not only is the need for Palestinian safe passagequestionable, but also the legal basis of the demand isdubious.International law does notrequire territorial contiguity.Likewise contiguity is not arequirement for statehood;not under the traditionalcriteria for statehood, nor interms of modern criteria thathave arisen as a result ofdevelopments in the field ofinternational law.Not only is such a link -- be it sovereign or not -- notrequired of a state by international law, but it is alsonot granted to states as a right under international law.Both past and present international practice confirm thatstates made up of geographically distinct areas have noinherent right to a special link connecting those areas, andin particular, a sovereign link. This applies to the Israeli-Palestinian conflict as well. While the largely defunctinterim Oslo Agreements mentioned the creation of safepassage, none of these eight agreements conferred aright to safe passage. Perhaps more importantly, U.N.Security Council Resolution 242, the foundation of anysolution to the conflict, does not call for safe passage orconfer a right to safe passage.Thus, under international law, territorial contiguity isnot a prerequisite for statehood. Therefore, should thePalestinians have non-contiguous territory, this wouldbe no bar to statehood. In fact, a bar to statehood for‘Palestine’ might arise, but not because its territorywould be non-contiguous. Despite their numerous alliesand admirers, ‘Palestine’ may not satisfy the criteriafor statehood because its elected leaders utterly fail toexercise effective government, or exercise even nominalcontrol over the Palestinian Territories.Should thePalestinians restore and sustain law and order in Gazaand the West Bank, the authors see no reason why theycould not create a viable, non-contiguous state.Therefore, those who assert that Israel is obliged byinternational law to create such a passage are whollymistaken or misled.There is no such obligation onIsrael. Out of humanitarian concern Israel could chooseto create such passage, but it is in no way obliged to do so.Undeniably Israel’s security concerns militate against herdoing so. As demonstrated above, Israel is situated in anacutely threatening region with both states and terroristorganizations calling for and planning conventional andeven genocidal attacks aimed at obliterating or drivingout its Jewish population.Should Israel choose to create a safe passage, sheneed not transfer sovereignty over such passage tothe Palestinians. Indeed, the concept of internationalservitudes urges her to retain sovereignty over thepassage itself.The legal concept of internationalservitudes also entitles her to terminate the use of suchpassage should there be a violation of the treaty thatcreates such an arrangement, or should the Palestinianstacitly or expressly renounce such a treaty.This isimportant: were the Palestinians to comply with theterms of the treaty until the first day of its implementationand then breach the treaty by, for example, smugglingIranian missiles or Hezbollah terrorists the length of thesafe passage, then Israel would no longer remain boundby any such commitments.Moreover, and asimportantly, internationallaw justifies Israel’s retainingcontrol over the crossingpoints, in light of its right toself-defense and its duty toprotect its citizens.page 53