Palestinian Territorial Rights (and the One-State Solution)

The events of October 7, 2023 and Israel’s subsequent war on Gaza are the subject of strong media attention, which is surely important. Yet I want to step back and claim that this war constitutes yet another chapter, perhaps the most grisly since 1947, of a conflict that has existed since at least 1917, when Britain issued the Balfour Declaration promising Jews a national homeland in Palestine, and that intensified since 1948, when Israel was established as a state. I make this claim because the conflict has not been settled in a just way, owing to the fact that various Palestinian rights have not been respected or implemented. My focus is specifically on the Palestinians’ territorial rights. In this respect, the Balfour Declaration, according to which the British government views “with favour the establishment in Palestine of a national home for the Jewish people…it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country,” was a watershed moment. It implied the erosion of the Palestinians’ territorial rights by acknowledging only their civil and religious rights. Yet territorial rights constitute the conflict’s core, namely, whether it is Jews, Palestinians, or both who have territorial rights to historic Palestine, which comprises Israel (including west Jerusalem), the West Bank (including east Jerusalem), and the Gaza Strip. Unless this question is answered fairly, the conflict is likely to continue.

The international consensus today, modeled on the 1947 United Nations Partition Plan, is that there should be two states: Israel and a Palestinian state comprised of the West Bank, the Gaza Strip, and east Jerusalem. (I use “Palestine” to refer to this proposed Palestinian state and “historic Palestine” to the entirety of region west of the Jordan River). Palestine might never see the light of day given Israeli Jewish settlements in the West Bank, Israel’s annexation of east Jerusalem, and Israel’s near-total destruction of Gaza. Various human rights organizations attest to Israel’s apartheid-like actions toward the Palestinians (see Israel’s own B’Tselem). Setting this question aside, the underlying assumption of the two-state solution is that Israelis have territorial rights to the territory that constitutes Israel while Palestinians have territorial rights to Palestine. This allocation of territorial rights seems correct. Even if we doubt that pre-1948 Jews had territorial rights to historic Palestine back then, Israeli Jews today do, at least to Israel, because given the passage of time, with generations of them living on the land since 1948, they have acquired territorial rights to it. The Palestinians surely also have rights to Palestine, since they, too, have lived there for centuries.

Yet complications arise when considering more closely the “particularity question,” namely, the specification of the territory to which a group has rights (see Moore, 2024, “Territorial Rights”; section 1.3). In this case, the question is, “Exactly which territory do the Palestinians have rights to?” The two-state solution assumes it is only Palestine. I will argue that it is to historic Palestine, with the understanding that this is compatible with Israelis’ territorial rights to Israel. If I am right, the just solution to this conflict would be a single state for both Israelis and Palestinians.

Before starting, let’s be clear on territorial rights. Territorial rights are a cluster of rights, which most crucially include the right to jurisdiction over a particular territory. The right to jurisdiction is the right to rule the territory (usually through a state), including the right to use its resources and the right to control its borders. Note here that “territory” does not refer only to land, but also to the water, the airspace, and the earth beneath the land (see Miller, 2012, “Territorial Rights”). Moreover, the holders of territorial rights tend to be groups. States can also be holders of territorial rights but tend to hold them in the name, or as the representative, of groups (see Moore 2014, “Which People and What Land?”). Whether the group in question is best understood as national, ethnic, religious, etc. is debatable. My view is that it can be any one of them, as long as it has established historic roots in, and cultural ties to, the territory (see Miller, 2012, “Territorial Rights”; Moore, 2014, “Which People and What Land?”). Finally, having territorial rights by group G to territory T does not entail that these rights are exclusive of others; another group might also have territorial rights to T. This can be seen in the fact that some territories contain more than one group with legitimate claims to jurisdiction, such that the state, if one exists, rules on all their behalf. It can also be seen in cases of restitution, when refugees ought to be allowed to return to the territory from which they were wrongfully expelled by another group (see Moore, 2017, A Political Theory of Territory; ch. 7).

In brief, here’s my argument for Palestinians’ territorial rights to historic Palestine:

1. The Palestinians in 1948 were a people who had established historic roots in, and cultural ties to, historic Palestine.
2. Therefore, they had then territorial rights to historic Palestine.
3. The Palestinians continue to this day to be a people.
4. Their territorial rights to historic Palestine have not been superseded or overridden.
5. Therefore, they continue to have them.

Regarding the first and third premises: the Palestinians were, and continue to be, a people because they satisfy important criteria for being a people. Using Margaret Moore’s three criteria: “they share a conception of themselves as a group”; “they have the capacity to establish and maintain political institutions through which they exercise self-determination”; and “they have a history of political cooperation together,” which is certainly true of the Palestinians in their struggle to return to historic Palestine and establish their own state (Moore, 2017, A Political Theory of Territory, p. 50; see also Rashid Khalidi, 2009, Palestinian Identity). The Palestinians, moreover, continue to be a people despite their dispersion, because they meet these three criteria in profound ways: in Palestine and in the diaspora (including neighboring Arab countries), they were able to forge all sorts of governing institutions (e.g., the Palestine National Council); they consider themselves a people in whichever place they live; and their diasporic existence has strengthened their political cooperation precisely around the idea of return to historic Palestine and/or having a Palestinian state in historic Palestine.

Regarding the second premise: granted that the Palestinians were, and still are, a people, did they have territorial rights in 1948 to historic Palestine? Yes, and for at least three reasons. First, if the Syrians, the Lebanese, and the Jordanians (among others), all of whom were in the throes of independence from Ottoman and then French and British rule, did have such rights, then surely so did the Palestinians. Second, neither Britain’s promise of a homeland to the Jews in historic Palestine nor Jewish presence there would negate this claim since the Jewish presence or homeland did not need to be exclusive of others, and since Britain had no moral authority to make such promises, certainly not to territories inhabited by other people and without consulting their wishes. It might have had the legal ability to do so, but the legitimacy of these laws is doubtful since it reflected the might of Western powers and not the will of the inhabitants of the Arab territories. Third, the Palestinians satisfy the criteria that philosophers have come up with to justify a group’s territorial rights. For example, the Palestinians met the criterion of having lived in a territory for a long time and struck historic and cultural roots in it (see Miller, 2012, “Territorial Rights”; Miesels, 2009, Territorial Rights).

Regarding the fourth premise: The Palestinians’ territorial rights have not been superseded. Supersession is when circumstances change through sheer passage of time (Waldron, 1992, “Superseding Historic Injustice”; see also Meyer & Waligore, 2022, “Superseding Historical Injustice?”). One crucial indicator that supersession has occurred is that there is no moral residue that pushes us to consider the rights of the peoples involved (Simmons, 2016, Boundaries of Authority; p. 156). For example, there is no doubt that Arabs do not have territorial rights to Spain, because the passage of time has changed circumstances to the point that this issue simply is not alive—no Arab group is claiming such rights; no group can be legitimately delineated that would exercise such rights; and no group is currently stateless owing to its inability or need to live in Spain.

Not so with the Palestinians. Seventy-five years is simply not enough time for supersession to apply. This is indicated by the fact that there is definitely moral residue: Palestinians continue to claim their territorial rights, especially through the idea of the refugees’ right of return, enshrined in UNGA Resolution 194 and various conferences to that effect (see the annual reports of the Resource Center for Palestinian Residency and Refugee Rights), an issue that has been one of the main impediments to a resolution of the conflict, given Israel’s refusal to repatriate them (see Chapter V of the United Nations’ “The Question of Palestine”). Moreover, the Palestinians have not been dispersed into the world in such a way that they, as a people, have melted into other populations. Nor have they, as a people, been transformed merely into ethnic pockets living in various parts of the world. The overwhelming majority of them live as Palestinians near Israel, most of them united politically by a common cause.

The case, then, for Palestinians’ not having territorial rights to historic Palestine rests on the claim that such rights have been overridden. This means that the rights still exist, but it is permissible to override them—to morally permissibly block the Palestinians from exercising them—because there are other considerations that take precedence, much like my right to my property is overridden when a person needs to use it for temporary shelter from a dangerous enemy (see Thomson, 1992, The Realm of Rights; esp. chapters 4 and 6).

What might these considerations be? I’ll discuss five prominent ones.

In his famous essay, “The Iron Wall,” the Revisionist Zionist Vladimir Jabotinsky mentioned a crucial consideration: “We hold that Zionism is moral and just. And since it is moral and just, justice must be done, no matter whether Joseph or Simon or Ivan or Achmet [“Ahmad” in Arabic] agree with it or not.” The idea, that Jews’ need for a state is of supreme moral importance, is one of the most common justifications for the permissibility of the 1948 ethnic cleansing of the Palestinians (Pappe, 2007, The Ethnic Cleansing of Palestine).

This justification, however, does not achieve what it thinks it can achieve. Even if Zionism, understood as the movement to establish a Jewish state in Palestine (as opposed to a non-state presence, which is irrelevant to the first consideration), is just, at most its justice justifies Jewish immigration to Palestine and the protection of their lives and culture; it does not justify the carving out of a state at the expense of the Palestinians, who had territorial rights to the same region. That is, Zionism’s justness must accommodate another justice, that of the Palestinians’ rightful claims to the land. This is because uprooting the Palestinians from their lands and homes violated a crucial moral interest that they had, namely, not to be forced to create a whole new life elsewhere (see Stilz, 2019, “On the Zionist Claim to Territory”; p. 194). Given the existence of bi-nationalism as an option (see Ahad Ha’am’s 1897 classic “The Jewish State and the Jewish Problem”), one espoused by cultural Zionists, and given Palestinians’ territorial rights, the justice of Zionism means at most sharing the territory with the Palestinians.

A second consideration is that if the Palestinians were to exercise their territorial rights to historic Palestine, this would erode the Jewish character of Israel or, even worse, it would mean the end of Israel as the Jewish state. The concern is that with greater numbers, Palestinians’ religion(s) and culture would take over and Israel would lose its Jewish character (this is a commonly found objection to Palestinian return; see, e.g., the Jewish Virtual Library, “Palestinian Refugees: The ‘Right of Return’—A Plot to Destroy the Jewish State”).

There are ways, however, to maintain Israel’s Jewish character without having to keep the Palestinians, so to speak, “out,” such as adopting Hebrew as one of the state’s official languages, through state symbols, through signage and names of places, through joint rule with the Palestinians, through a constitution that provides for equal sharing of power, and through the Law of Return, which allows every Jew in the world to immigrate to Israel and obtain citizenship upon entry (see Halwani, 2008, “The One-State Solution”; Abunimah, 2007, One Country, esp. ch. 4). Even if Jews become a numerical minority, this need not erode the state’s Jewish character (cf. Canada and its French and British character, even if French Canadians are a minority). And this would not be a new phenomenon: Palestine has always been considered to be the home of the three Abrahamic faiths, and Jews who had continuously lived in Palestine were, and were seen as, indigenous to the land and were called “Palestinian Jews” (see Perez, 2016, “Palestinian-Jews and Israel’s Identity Crisis”).

A third consideration is that Israeli Jews have legitimate expectations to live in Israel, not in Israel-Palestine. In law, expectations are used to justify recourse to precedent, the idea being that one good reason to follow precedent is that people have come to form expectations that things will continue as they are into the future, so they have planned their lives accordingly. Hence, one might argue that Israeli Jews have planned their lives based on the idea that their country won’t undergo as radical a transformation as becoming a whole different state (Moore, 2017, “Legitimate Expectations and Land”).

Note, first, that Palestinian Israelis form about 20% of the population of Israel. Second, although there is no doubt that Israeli Jews have some legitimate expectations, including to continue living in Israel, to exercise their sovereignty (though, as we’ll see, not exclusive sovereignty), and to have basic political, religious, and civic rights, none of them are undermined by transforming their state into one that is also for Palestinians as equal citizens with jurisdiction. Like other thriving multicultural states, both Israelis and Palestinians can have shared jurisdiction over historic Palestine, with each group having a say in how the country is to be governed (how this is accomplished and what form it takes is a subject for a different kind of essay). Moreover, it’s arguable that legitimate expectations do not include Israel’s remaining Jewish by not allowing the Palestinians to return and exercise their territorial rights or by allowing them to return but disallowing them from exercising authority. As Lukas Meyer puts it, “Israel cannot plausibly claim … to have an extreme need to exercise exclusive sovereign control over the land.” Crucial here is the fact that the Palestinians are not outsiders demanding to have sovereignty in Israel—they are not foreigners seeking a better life there. They are the land’s native inhabitants, refused entry after a war in which Arab states lost on their behalf. Indeed, if those very expectations of Israeli Jews that leave Palestinians out have come about precisely because of the 1948 ethnic cleansing, then they seem to be illegitimate expectations (see Waligore, 2017, “Legitimate Expectations, Historical Injustice, and Perverse Incentives for Settlers”). That is, whether an expectation is legitimate depends, partly, on not violating crucial rights, and if Israelis’ expectations to not transform their country into one with shared jurisdiction with the Palestinians depends on the continued violation of the latter’s territorial rights, then the expectation is illegitimate. One thing to remember is the Palestinians’ own legitimate expectations: if they have such expectations to exercise their rights in the territory from which they were ethnically cleansed, then it is unclear why their expectations must yield to those of the Israelis. It is worth repeating that they are the land’s natives.

A fourth consideration is the two-state solution. The argument can go something like this: the two-state solution is the international consensus on how the conflict should be resolved, and claiming that the Palestinians have territorial rights over historic Palestine goes against this consensus, because the two-state solution relegates these rights only to Palestine, not to historic Palestine. Various Israeli officials have made this claim, especially in relation to the Palestinian refugees’ rights of return, and so have some think tanks and philosophers (e.g., Chaim Gans in his 2008 A Just Zionism, made a similar claim but couched in better consequences for both peoples; see pp. 83-84).

The two-state solution, however, is acceptable only if we deny the Palestinians’ territorial rights to begin with. That is, like the 1947 United Nations Partition Plan and any other plan that divides the territory, it does not so much address the territorial rights of Palestinians as it sets them aside in favor of pragmatic reasons to keep things peaceful. It is as if the law says to a family who used to live in an entire apartment, “You may live only in one wing of the apartment, while this other family may live only in the other wing for the sake of keeping the peace.” Although peace considerations are understandable, unless accompanied by additional considerations as to why the family has no occupancy rights to the whole apartment, they are tantamount to merely setting aside these rights, not to showing that they are overridden. Of course, the two-state solution is better than the current state of affairs, but it does not really offer a justification for overriding these territorial rights.

In this regard, the fifth consideration might press on: Why don’t peace considerations override the territorial rights of the Palestinians? Granted that consequentialist considerations have to be quite high to override rights, they are quite high in this conflict—at stake is the peace and security of two peoples. So they do seem to override the rights in question.

At stake here is, partly, the issue of when consequentialist considerations—in this case, peace—can override particular crucial rights—in this case, the Palestinians’ territorial rights. It is important to keep in mind that individuals and groups have rights precisely so that their autonomy, which is protected by rights, is not overridden by the good of the many (Wenar and Cruft, 2025, “Rights”; section 5.1). So is peace in this case of such high value that it may override the Palestinians’ territorial rights? The strongest argument in support of a positive answer to this question assumes two things: that the hostility between Israelis and Palestinians is unavoidable if they were to co-mingle, and that the merging of the two peoples in one territory would occur without proper planning, including mechanisms to calm people’s fears and anxieties, which are very legitimate given how out of control this conflict has spiraled.

But neither assumption is warranted. There is no inherent enmity between the two groups; the enmity is, arguably, the result of the continued violation of Palestinians’ various rights, including territorial and self-determination rights (see Anziska, 2018, Preventing Palestine). Moreover, any implementation of a process that involves such drastic changes must be done carefully and after a cooling-off period, and involving the strengthening of the idea that Israelis and Palestinians can live together in one state.

Granted the above, why even try to uphold the Palestinians territorial rights when things look utterly bleak and the path forward seems long and arduous? My answer is that because we usually consider justice to be our guiding light, even if it takes time to be achieved, if ever. As Martin Luther King, Jr. famously said, “Let us realize that the arc of the moral universe is long, but it bends toward justice.” So unless we are sure that this enmity will never end, prioritizing peace over rights sounds more like violating the rights than overriding them. Furthermore, one reason for the continued hostility, as I mentioned, is the continued violation of rights. That Palestinians fight back is not a surprise. The Palestinians here are the rule, not the exception, to the phenomenon that a downtrodden people will fight back (e.g., the Haitians, the Vietnamese, the Algerians, the French and Russian Revolutions, Black South Africans, and so on). Respecting their rights surely will go some way to increasing the prospects of peace. Finally, we can respect peace as a means to the final goal of co-sharing the territory: various interim measures, including a temporary two-state cooling off period, can be implemented on the way to the final resolution.

If the Palestinians’ territorial rights are respected, this points to a single state for both peoples. This would have additional advantages: (1) both peoples can live and move about in all parts of historic Palestine (it would, e.g., allow Jews to live legally in the West Bank and Gaza); it would transform the status of Israeli Palestinians from second class citizens to full equality; it would remove the apartheid-like conditions in the West Bank imposed on the Palestinians; it would resolve the Palestinian refugee problem; and it would live up to the ideals of liberal democracy, according to which no religious or ethnic group is to be treated with favoritism simply based on its identity (for a recent argument to this effect, see Scheindlin, “Two States, Together”).

I am pessimistic that Palestinians will ever get to exercise their territorial rights in historic Palestine. Nonetheless, understanding that Palestinians continue to have these rights helps reframe the discussion in important ways. It provides an ideal to which we should aspire, and it reminds us that this is the minimum to which the Palestinians are entitled—that this is not an issue of generosity on the part of Israel. If so, even if Israel (and perhaps the international community) rejects a single state, it can at least come to grips with what it has done and provide the Palestinians with some form of minimally adequate restitution. As Joseph Levine puts it, “once one acknowledges the enormity of Palestinian injury, it becomes clear that accommodating their needs is Israel’s primary obligation.”