What are the “Occupied Palestinian Territories” (OPT), and why are Israeli settlements there illegal? Legal answers to these questions are surprisingly elusive; comparative analysis of Israeli and Palestinian claims in the West Bank reveals competing bases for legal title.

On Tuesday 8 August 2023, the Australian government announced that it will refer to the West Bank and Gaza as “Occupied Palestinian Territories” (OPT) and to Israeli civilian residences there as “illegal settlements.” This Australian government position conforms to the position taken by a majority of UN members. It was condemned by Australia’s Jewish community and triggered controversy in the mainstream press.

Occupied Palestinian Territories

Which lands occupied by Israel are regarded in the UN as OPT? For most countries in Europe and in the Americas, the OPT are the “West Bank” including East Jerusalem, areas which they consider central to Palestinian self-determination through statehood. This position was affirmed for the UN in a 2021 judgement of the International Criminal Court citing UN resolutions as authority for the “right of the Palestinian people to self-determination and to independence in their State of Palestine on the Palestinian territory occupied since 1967.” The Court’s circular reasoning affirmed UN political resolutions as legal rules for UN judiciary.

Although most consider Jerusalem as OPT, a substantial number of international lawyers in European and American countries assert that Jerusalem should be under international administration, as recommended in several General Assembly Resolutions. This would secure more assurance for churches’ retention of control over their properties in the Jerusalem Holy Basin. Concerning Gaza, the better argued legal view is that Gaza is no longer occupied. Israel evacuated its military forces and civilians in 2005. At present, Gaza is self-governed, and Egypt has a land border with Gaza that is beyond Israeli control.

A broader conception of the OPT than Gaza and the West Bank prevails for those who assert that occupied Palestine should be free “from the river to the sea,” – from the Jordan River to the Mediterranean Sea – which means that all of Israel is OPT. This is the position of the Hamas government in Gaza and promoted by the Fatah-governed Palestinian Authority in the West Bank. Similarly, most Organisation for Islamic Cooperation (OIC) member countries do not recognise Israel as a country.  

It should also be noted that the Sinai Desert and Golan Heights are not regarded as Palestinian lands, but as Egyptian and Syrian. The Sinai was returned to Egypt in return for a peace agreement in 1978.

Illegal Settlements

A majority in the UN regard Jewish villages, neighbourhoods, or farms located in areas captured by Israel from Jordan in 1967, including East Jerusalem, as “illegal settlements.” The reason for asserting illegality is the prohibition on transfer of civilians into occupied territories by an occupying power, as set out in the 1949 Fourth Geneva Convention, article 49(6). However, the issue is again more complex than the legal rhetoric.

An ordinary reading of the words in article 49, together with its context, in accordance with the legal rules of treaty interpretation, indicates that “transfer” means forcible transfer. The 1998 Rome Statute of the International Criminal Court, article 8(b)(viii), explicitly includes “indirect transfer.” Obviously, that specific text would not be necessary if the 1949 Convention had already covered the situation.

UN resolutions seek to extend “transfer” in article 49 to include governmental policy supporting voluntary migration. This interpretation was confirmed in 2004 by the UN Court of Justice. It gave no interpretive explanation other than one sentence, in paragraph 102, that relied on UN resolutions for legal authority.

Furthermore, Palestine was not a state at the time Israel captured the West Bank of Jordan. Palestine still does not meet the four established international legal criteria for the formation of the state. Its population, borders, and government are indeterminate, and UN members are split on international recognition of Palestine as a state (recognition is insufficient by itself to constitute a state anyway). Thus, in 1967, Palestine was not a sovereign state to which the 1949 Geneva Convention could apply.

Disputed Land Title

The Israeli legal position is that those areas captured by Israel from Jordan in 1967 are “disputed” territories. This position is held in common with the previous Australian Government, the USA, and several other countries.

The basis for the Israeli claims to parts of the West Bank include the international legal mandates for the establishment of a Jewish homeland there under the League of Nations in 1920 and renewed under the UN in 1945; the succession of territorial title within the boundaries of the previous British government in 1948; the absence of a competing legal sovereign in the West Bank in 1967 and the absence of any international rule prohibiting acquisition of lands taken in self-defence in 1967; and the Jewish right to self-determination in indigenous land in Judaea and Samaria. In the 1993 Oslo Accords the Palestine Liberation Organization (PLO) agreed to engage in the negotiation of Israeli legal claims and security needs in exchange for Palestinian self-determination. Adoption of the Accords, endorsed by the UN, demonstrated recognition of the legitimacy of Israeli interests.

Except for East Jerusalem, Israel has not yet annexed and asserted formal sovereignty over any parts of the West Bank. The reason would seem to arise from a strong preference to end the conflict by reaching peace agreements.

Decline of International Law and Rise of Legal Rhetoric

The OPT and illegal settlements terminology is standard in the UN, driven by geopolitical blocs in alliances of interests. The influence of the 57-member OIC, the largest international organisation after the UN itself, and established to promote the cause of Palestine, predominates in UN discourses concerning Israel. The terminology promotes the case for Palestine against Israel by asserting that Israel has no legal rights in Palestine.

Palestinian claims to rights over the OPT rely in large part on the cumulative effects of consistent majority votes in multiple UN institutions. Israeli claims to areas of the West Bank, in contrast, rely mostly on conventional interpretations of customary legal doctrine and treaty law. Comparison of the competing Palestinian and Israeli claims based on legal doctrine and treaty favour Israel, but outcomes based on UN votes overwhelmingly favour Palestine.

UN courts indicate that they are more persuaded by UN majority resolutions. Although the UN has no legal authority under its Charter to prescribe any laws, globally or for a state, international legal doctrines and treaties, through circular and legally defective judicial reasoning, are subordinated to UN political functions and votes. This approach is very pragmatic and preserves the utility of the courts and of international legal rhetoric for UN political organs and agencies, as well as preserving the roles of judges themselves.

The Australian foreign minister’s use of “OPT” and “illegal settlements” terminology provides legal rhetorical cover for a national political realignment with UN majority votes predominated by the OIC. It disregards the complex reality of competing legal claims and rules of international law.

Australia’s political change of legal rhetoric on Israel is a case study of the interplay between international politics and international laws. It exemplifies the declining relevance of fundamental rules of international law, as they become more frequently diminished by and subordinated to the supreme power of political alliances that can dominate majority voting in UN institutions.

Gregory Rose is a Professor with the Australian National Centre for Ocean Resources and Security (ANCORS) at the University of Wollongong, and Director of Research for The Hague Initiative for International Cooperation (thinc.). His expertise is in international law and his areas of research cover international law relating to marine resources governance, transnational environmental crime, counter-terrorism and Arab-Israel conflict

This article is published under a Creative Commons License and may be republished with attribution.