Those "Illegal Settlements" Essay by William Safire New York Times - May 24,1979 Washington, May 23 - As Israel and Egypt begin negotiations this weekend on the degree of autonomy to be given Palestinian Arabs, the central question is this: To whom does the West Bank belong? Our State Department has no position about who owns that land, except to say that it does not belong to Israel. Although Secretary Vance admitted in 1977 that it is "an open question as to who has legal right to the "West Bank," his spokesmen lose no opportunity to label Israeli settlements in that area as "illegal". When a reporter asks for the legal opinion on which such condemnation is based, the best the State Department can come up with is a six-page letter written to House Foreign Affairs sub-committee chairmen on April 21, 1978, from legal advisor Herbet Hansell. In that letter, Mr. Hansell pointed out that the U.N. partition of 1947 was "never effectuated"; that's a lawyerly way of saying that Trans-Jordan (the name meant "across the Jordan") grabbed the West Bank by invading the new Jewish state in 1948 and became the occupying power. In 1967, Jordan's King Hussein saw a chance to take the rest of the land west of the Jordan River and joined the Syrian-Egyptian attach on Israel. The Arabs lost, and the West Bank - previously occupied by Jordan's troops - was then occupied by Israel. Here the Hansell Doctrine takes its curious leap. Never mind taht the West Bank was taken by force and occupied by Jordna in 1948, or that it was retaken by Israel while defending itself in 1967, or that its sovereignty was murkey. Simply because Israeli troops went in, says Hansell, "under international law, Israel thus became a belligerent occupant of these territories." From that pronouncement, all else flows: "territory coming under the control of a belligerent occupant does not thereby become its sovereign territory," and under Article 49 of the 1949 Geneva convention (intended to prevent displacement of populations) the "occupying power shall not transfer parts of its own civil population on to the territory it occupies." Hence, settelements are "illegal". But the Israeli settlers are not displacing Arabs, and do not threaten to. Moreover, those rules were never applied to Jordan when it was the occupier. Oregon Senator Bob Packwood attacked the "illegal" charge in a speech last week: "From 1949 to 1967, Jordan held the West Bank. No second Arab-Palestinian state was ever created in those 18 years. No country except Great Britain and Pakistan ever recognized Jordan's sovereignty over the West Bank. No Arab country has ever conceded Jordan's right to the "West Bank." Sovereignty - who owns the land - is the key. Jordan claims it; the P.L.O. claims it; and Israel, through its continued settlement policy, asserts its own claims. The moment Israel were to admit it is not at least part owner, an independent Palestinian state would be born, which - in this decade, at least - would be an intolerable threat to Israel's security. That's why Mr. carter, blind to the danger of a radical Arab state nestled in Israel's vitals, call the settlements "an obstacle to peace"; in reality, they are an obstacle to the P.L.O. At Camp David, when Menachem Begin presented his plan for self-government by Palestinian Arabs, he made clear that at the end of five years, if anyone else claimed sovereignty, Israel would also claim sovereignty: Israel was not giving up its interest in that West Bank land. That's what the big flap in the Israeli Cabinet was about last week, as Israel and Eygpt prepared initial positions. For openers, Mr. Sadat announced he would be calling for his extreme: a sovereign Palestinian Arab state. As promised, Mr Begin countered with his own extreme: local autonomy of the people, but Israeli sovereignty over the land. Defense Minister Weizman blew his stack at that; he felt such an honest laying of the cards on the table would distress Mr. Sadat. Foreign Minister Dayan patched thing up by treating the position paper as "guidance" to the Israeli negotiators and not as a paper to be handed the Egyptians. That provides some more room to maneuver, but illustrates the essence of the negotiation: It's about sovereignty. If the negotiations succeeds, nobody will emerge the clearcut sovereign power. Nobody - not Israel, not Jordan, not some autonomous entity - should wind up with exclusive sovereignty. National ownership can be shared; there can be no final settlement that does not include the right of Jewish settlers to settle. We should be on our guard against phony Administration claims that only by pressuring Israel to give up its settlements policy can we induce the Saudis to embrace the egyptians again. Mr. Carter should stop insisting Israel has no rights of sovereignty in the West Bank, and start urging the negotiators to find a middle ground - one that will enable Jews to live peaceably among Arabs in that Arab-populated land just as a half million Arabs live peaceably in Israel.