Law Professors Dilly-dallying the Law

Over at Jewish Ideas Daily, the issue "What are Israel's Rights in Judea and Samaria? Two Views" is treated by law professors JHH Weiler and Yaffa Zilbershats - con and and Avi Bell as pro.

My comment there:

I am amazed that Professors Weiler and Zilbershats refuse to predate any of their discussion to 1967.  In a legal sense, the whole core of the argument over the Levy Report is not a modern issue (I hesitate to employ 'post-modern') and yet their framing seems not to take into account law concepts and conclusions older than 45 years.

They write: "Today, most international lawyers, whether friendly or hostile to Israel, are agreed...Likewise, a broad legal consensus, accepted by Israel, recognizes the Palestinians as a people with an attendant right to self-determination within the territories."

Well, when international law decided through the instrument of awarding Gt. Britain a Mandate over Palestine (a) the historical connection of the Jewish people was quite crucial;  (b) the term "Arabs" was missing from any of the documents and certainly something now called "Palestinian"; (c) among the rights awarded the Jewish people, as a national collective (for they were reconstituting their national home), was "close settlement on the land" and for that purpose, state and waste lands were to be available.  To ignore this and blithely dwell on the 'now' may be what law professors think but not what law is or should be.

And if I may, one matter the Levy Report could have promoted was the registering of all land including property distributed gratis by any Jordanian monarch, his authority being that truly an illegal occupier, and those sections not built upon, not planted or develioped in any way, should return to its previous status as state/waste land to be redivided to Arabs or Jews.

The Levy Report's major achievement is in its returning the historical element into law not only in terms of what the law was at a previous time but how it developed as a result of the primacy of the Jewish national claims.

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UPDATE

Avi Bell's rebuttal.

The scenarios offered by Weiler and Zilbershats are, at best, fanciful...Weiler’s and Zilbershats’s legal arguments are more conventional. They claim that Israel’s traditional position that the West Bank is not under de jure belligerent occupation, as endorsed by the Levy Report, has been rendered irrelevant by three developments: Security Council Resolution 242, a “consensus” regarding the status of the West Bank, and the acknowledgment of Palestinian rights of self-determination.  The authors err on all three counts....Denying Israel’s rights to try to force Israeli compromise is unsound.

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