One hundred and one years have passed since the international community met in Paris and San Remo to establish a post-imperial world order founded on independent nation-states. In San Remo, Jews were promised a "national home" in Palestine – as it was then referred to – and an explicit right to settle in all parts of the country, which included Judea and Samaria. But the international community did nothing to implement this promise, given the reluctance of the Mandate government to act on the one hand, and growing xenophobia against Jewish immigrants by local Arabs on the other.
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The Jews are the ones who translated the international promises into facts on the ground. In 1948 they did so in part because much of the territory, including the holy sites, fell into Jordanian hands. After Israel regained control of these territories in 1967, a large part of the international community pretended that previous promises had not been given at all. Not only that, all areas that were "clean" of Jews in 1948 must remain such indefinitely, even if Israel actually controls them.
Despite this, more than a century after that conference, one leader arose who was willing to fulfill the old commitments of the League of Nations. It was President Trump, who recognized a united Jerusalem, and Secretary of State Mike Pompeo, who declared that Jewish settlement in Judea and Samaria was not a crime but represented an understanding of the legal significance of those promises by the League of Nations. The two are perhaps the first leaders to refuse to bend Israel's legal rights and allow for political blackmail by Arab states.
The post-World War I peace arrangements, which began in Paris in 1919 and culminated in San Remo the following year, gave birth to the countries of Syria, Lebanon, Iraq, Jordan and Israel, as well as the borders of those countries.
It is easy to criticize the artificiality of the countries established by the League of Nations. But in the world – and especially in an area where ethnic and religious groups are mixed and live without separation – there is no escape from the arbitrary setting of boundaries. In any area ruled by the Mandate, it was determined that an unfortunate minority will live among a majority: Muslims with Christians in Lebanon, Kurds with Arabs in Iraq, and Syria on the whole is an inexplicable mix. The process was not perfect, but the alternatives that existed in the past – a vast pan-ethnic empire, or one group trying to take over others – eventually made countries look like the Syria we have known in recent years.
This is why the post-World War I borders were widely accepted as the binding sovereign borders of the countries established in the territories of the British Mandate. Neither the Kurdish separation nor the Syrian annexation of Lebanon as a protégé receive international support, because such support would call into question the same Mandatory borders.
There is one place in the Middle East where the international community takes a completely opposite position regarding the borders of the Mandate. This is happening, of course, in Israel. Although Pompeo's statement during the previous US administration did not deal with borders, it did put back on the agenda the principle established in San Remo, according to which Jewish settlement is not illegal.
Pompeo rejected the conclusions of a memorandum authored by former Legal Adviser of the Department of State in 1978, Herbert Hansell. The conclusions of the memorandum were rejected by President Ronald Reagan 1981, but never officially. The four-page memorandum dealt with new decisions, issues that according to its author were never resolved. In the decades since its formulation, the legal analysis of the occupation and the settlements has not changed, and Israel has always been treated in a special way.
That memorandum had two main conclusions. The first was the definition of Israel as an "occupying power in the West Bank". Its author clings to an unknown clause in the Geneva Convention, one that has never been applied to any country. The same Herbert Hansell, who held almost no consultations, stated that Israel should prevent Jews from living in areas that Jordan had "cleansed from Jews" years before.
Under international law, occupation occurs when a state takes over territory subject to the sovereignty of another state. This is, for example, the reason why Russia is considered an occupying power in the Crimea, even though most of the island's population is made up of Russians and historically the peninsula is considered part of Russia. In terms of international law, there is ultimately clear Ukrainian sovereignty in place, even against the backdrop of opposition to the self-determination of a local ethnic majority.
But Judea and Samaria were never part of Jordan. On the contrary, Jordan only took control of this territory in 1949.
Moreover, a state cannot occupy territory in which it is sovereign. Israel has the strongest sovereign claim to the territory. In international law, a new state inherits the boundaries of the previous geopolitical unit in this area. In this case, that unit was the mandate of the League of Nations for Palestine. Hansell preferred to ignore all of this.
The memo that Hansell has failed the test of history. The U.S. State Department did not apply the definition of "occupation" to Western Sahara controlled by Morocco, Dutch New Guinea, nor any other situation in which the territory that had not changed hands in war had no previous sovereign power.
And there is another matter: Hansell's conclusions are irrelevant. This is because he explicitly stated that the state of occupation will not exist if Israel enters into a peace agreement with Jordan, since the law of occupation is part of the law of war; It does not apply in times of peace. Jordan signed a full and unconditional peace agreement with Israel in 1994 and rendered the memorandum irrelevant.
And the claims that the occupation creates an impenetrable demographic bubble around the territory have no basis in history or international conventions. Even the attempt to tie it to the Geneva Convention is a lie. Neither the United States nor the United Nations have ever claimed this in any case of similar conflicts.
As we celebrate the 101st anniversary of the San Remo Conference, we must also remember the boundaries that it set. But nothing determined then will be preserved if Israel does not claim its sovereignty itself and insist on it loud and clear in the international arena.
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Israeli governments have largely failed to state forthrightly their rights over all parts of the country, leaving their opponents in the international community free to make statements and carry out measures, such as the disengagement from Gaza by the late Prime Minister Ariel Sharon, as an ax to grind.
Israel is the sovereign in Judea and Samaria, and this territory belongs to it. It is not enough that this was decided in San Remo. State leaders must speak loud and clear so that the whole world understands that this is the reality, and there is no alternative.
Eugene Kontorovich is a professor at George Mason's Antonin Scalia School of Law, specializing in constitutional and international law.
