Thursday, March 10, 2016

  • Thursday, March 10, 2016
  • Elder of Ziyon

Legal scholars Eugene Kontorovich and Avi Bell have written an impressive new paper submitted to the Arizona Law Review that uses a well-known principle of international law to determine the borders of nations and applies it to Israel.

Here are the important excerpts of the 70-page paper.

ABSTRACT:  Israel’s borders and territorial scope are a source of seemingly endless debate. Remarkably, despite the intensity of the debates, little attention has been paid to relevance of the doctrine of uti possidetis juris to resolving legal aspects of the border dispute. Uti possidetis juris is widely acknowledged as the doctrine of customary international law that is central to determining territorial sovereignty in the era of decolonization. The doctrine provides that emerging states presumptively inherit their pre-independence administrative boundaries. 
Applied to the case of Israel, uti possidetis juris would dictate that Israel inherit the boundaries of the Mandate of Palestine as they existed in May, 1948. The doctrine would thus support Israeli claims to any or all of the currently hotly disputed areas of Jerusalem (including East Jerusalem), the West Bank, and even potentially the Gaza Strip (though not the Golan Heights). 
What is uti possidetis juris?

Today, it is generally accepted that the borders of newlyformed states are determined by application of uti possidetis juris as a matter of customary international law. The doctrine even applies when it conflicts with the principle of self-determination. Summarizing the operation of the rule, Steven Ratner explains, “[s]tated simply, [the doctrine of] uti possidetis [juris] provides that states emerging from decolonization shall presumptively inherit the colonial administrative borders that they held at the time of independence.” Recent decades have shown that uti possidetis juris applies to all cases where the borders of new states have to be determined, and not just in its original context of decolonization. Thus, for instance, uti possidetis juris was used to determine the borders of the states created by the dissolution of the Soviet Union,Czechoslovakia, and Yugoslavia.
Does it apply to Israel?

The application of the principle of uti possidetis juris to the legal borders of Israel seems straightforward. Israel emerged as a new state in 1948, when it declared statehood at the expiration of the League of Nations Mandate for Palestine. The new state of Israel was immediately invaded by its neighbors and several nonneighboring Arab states, and at the conclusion of hostilities, Israel possessed only part of the territory of the Mandate (the remaining mandatory territory was occupied by the states of Syria, Egypt and Transjordan). Israel and its neighbors reached armistice agreements, but they failed to reach peace treaties or boundary agreements. For its part, the British Mandatory government—the immediately prior ruling authority until 1948— did not propose or reach any agreement on borders with the new state. While there had been proposals to divide the territory of Palestine between two new states (one Jewish and one Arab), Israel was the only state to emerge from the Mandate of Palestine. 
Israel’s independence would thus appear to fall squarely within the bounds of circumstances that trigger the rule of uti possidetis juris. Applying the rule would appear to dictate that Israel’s borders are those of the Palestine Mandate that preceded it, except where otherwise agreed upon by Israel and its relevant neighbor. And, indeed, rather than undermine the application of uti possidetis juris, Israel’s peace treaties with neighboring states to date—with Egypt and Jordan—appear to reinforce it. These treaties ratify borders between Israel and its neighbors explicitly based on the boundaries of the British Mandate of Palestine.Likewise, in demarcating the so-called “Blue Line” between Israel and Lebanon in 2000, the United Nations Secretary General relied upon the boundaries of British Mandate of Palestine.
Given the location of the borders of the Mandate of Palestine, applying the doctrine of uti possidetis juris to Israel would mean that Israel has territorial sovereignty over all the disputed areas of Jerusalem and the West Bank and Gaza, except to the degree that Israel has voluntarily yielded sovereignty since its independence. This conclusion stands in opposition to the many public figures who have pronounced that international law dictates very different boundaries.Amazingly, however, such pronouncements reveal no awareness or discussion of the application of uti possidetis juris to the borders between Israel and its neighboring states. Indeed, the literature on both the doctrine and the Israeli-Arab conflict has almost entirely ignored application of uti possidetis to Mandatory Palestine.
At its expiration in 1948, the borders of the Mandate of Palestine, both internal and external, were relatively well demarcated and uncontroversial. Thus uti possidetis juris could be a powerful tool for resolving extant disputes about the borders of Israel. To be sure, Israel appears to be interested in drawing consensual new boundaries that differ from the borders established by uti possidetis juris.  Uti possidetis juris does not preclude later modifications of borders. Application of uti possidetis juris, as is customary in other boundary disputes, would nevertheless provide a clear baseline for future negotiated solutions.   
Why would this apply to Israel whose boundaries did not come close to the British Mandate lines after the 1948 war?

On May 14, 1948, when Israel declared its statehood, its forces controlled only a small part of Palestine. While Israel’s geographic scope of authority expanded by the end of the war, the armistice agreements that ended the war in 1949 left large parts of Palestine in the hands of Syria, Egypt and Jordan. The doctrine of uti possidetis juris, however, rejects possession as grounds for establishing title, favoring instead legal entitlement based upon prior administrative borders. And it is clear that the relevant administrative borders of Palestine at the time of Israel’s independence were the boundaries of the mandate as they had been set in 1923. Israel was the only state that emerged from mandatory Palestine, and it was a state whose identity matched the contemplated Jewish homeland required of the Mandate, and that fulfilled a legal Jewish claim to self determination in the Mandatory territories. There was therefore no rival state that could lay claim to using internal Palestinian district lines as the basis of borders. At the same time, while considerable efforts had been invested in creating and advancing proposals for altering the borders of the ultimate Jewish state and a companion Arab state, no such efforts had ever been crowned with the success of implementation. Thus, it would appear that uti possidetis juris dictates recognition of the borders of Israel as coinciding with the borders of the mandate as of 1948.
Certainly Israel has the right to voluntarily modify the borders in peace agreements, and the authors suggest that perhaps Israel's withdrawal from Gaza would also have that legal weight. Nevertheless, this legal principle that has been the basis of determining the borders of many other states worldwide should be equally applicable to Israel's borders.

The paper notes that historically there was a competing legal principal,  uti possidetis de facto which says that legal possession of land only applies to where there is actual control - but no international court has applied that principle in modern times, and it is universally understood in determining the borders of other nations that uti possidetis juris is the single guiding legal principle.

But what about the rights of Palestinian Arabs within the boundaries of the British Mandate?

Another set of problems related to the Palestine Mandate concerned questions of self-determination. From the outset, the Palestine Mandate was anomalous, in that it recognized a particular people as entitled to express its self-determination on the territory of the Mandate, even though that people was not at that time the majority population of the Mandate. Over the years, Palestinian advocates have argued that this portion of the Mandate was ultra vires, and that the Jewish people were not entitled to receive a grant of the legal right to self-determination. The argument has little to recommend it. But even if the argument were well-founded, it would have little effect on the outcome of the uti possidetis juris analysis, as we have seen. Even unlawful treatments of the right of self-determination have not been seen as grounds to undermine the uti possidetis borders of other Mandates. 
A potentially more serious matter is the question of whether the Jewish people were the only nation entitled to self determination in the Mandate of Palestine. The Mandate itself gives no indication of there being another entitled nation, describing only a Jewish national home and no other national home or national expression. The Mandate provides for a single partition (the separation of Transjordan from the remainder of the Mandate), but no other. The Mandate of Palestine was not, of course, the only Mandate to encompass populations who would not be granted the right to self-determination and an independent state (consider, for instance, the Kurds in the Mesopotamian Mandate). However, the Mandate of Palestine was the only one in which the majority population (the Arabs of Palestine) was not granted a right of self-determination by the founding documents. It may be argued, nonetheless, that, notwithstanding the silence of the founding documents of the Mandate, the Palestinian Arabs did have a claim to self-determination. General Assembly Resolution 181 of 1947 would have given both the Palestinian Jewish and Palestinian Arab peoples independent states.

The rights of multiple nations to self-determination on a given territory should not, prima facie, disturb application of the doctrine of uti possidetis juris. This is not simply because the doctrine of uti possidetis juris does not rely upon the existence of a prior claim of self-determination for the new state. Nor is it simply because uti possidetis juris may actually conflict with and override the demands of self-determination, as the International Court of Justice stated explicitly in the Burkina Faso case.321 The most important reason for rejecting the idea that multiple claims of self determination forbid application of uti possidetis juris is that many of the states that have had their borders established by uti possidetis juris have, in fact, been subject to multiple claims of self-determination; in no case has the existence of an additional nation with a right of self-determination defeated application of the doctrine of uti possidetis juris. This is true even when the new state that claimed the benefit of uti possidetis juris was later itself driven apart by new internal claims of self-determination. Yugoslavia and the U.S.S.R. provide several examples of this. Consider, for instance, Serbia (later subject to the secession of Kosovo) and Ukraine (later subject to the highly controversial secession of Crimea).
If an Arab Palestinian state had achieved independence in 1948, alongside the Jewish one, this would doubtless have affected the application of the rule of uti possidetis juris. With two states having achieved independence at the same time within the Mandate of Palestine, it would obviously not be possible for both states to share the borders of the Mandate. Different lines would have to serve as the basis of the borders of each states—if the new states could not reach agreement on mutually acceptable boundaries, the borders of districts or subdistricts would have to do. But, despite the potential self-determination claim of the Arab population of Palestine, only one state was born in 1948 at the termination of the prior administration. As the Palestine Mandate ended, the state of Israel achieved independence. No other state did.

Likewise, if the partition of Palestine envisioned by General Assembly Resolution 181 had been implemented, even if only administratively, the application of uti possidetis juris would have changed. Resolution 181 called for a U.N. Commission to take over administration of Palestine as the Mandatory withdrew. The Commission was to “carry out measures for the establishment of the frontiers of the Arab and Jewish States and the City of Jerusalem” and then to assist in the creation of provisional governments before the states achieved independence. However, the Commission never arrived in Palestine. Neither the Commission nor the Mandatory ever sketched out the proposed frontiers. At no time was a separate administration ever set up for the proposed Jewish, Arab and Jerusalem territories as called for by the resolution. In short, at the time of independence, there was only one administrative unit in Palestine. To attempt to apply uti possidetis juris to any borders other than those of the Mandate would leave the remaining Mandatory territories terra nullius, which is exactly the situation the doctrine seeks to avoid.
The paper concludes:

It is likely that a future peace agreement between Israel and the Palestinians future solutions will reflect the parties’ presumed desire to accommodate Palestinian self-determination, as well as the right of states to modify existing uti possidetis juris borders by agreement. Uti possidetis juris is not, therefore, the last word on matters. 
At the same time, it is likely that any future solution to the boundary disputes of Israel that wishes to take international law seriously will have to take account of the rules of uti possidetis juris. The doctrine is therefore an indispensable starting point for legal discussions of borders. 
And that is the precise point. The 1949 armistice lines never held any legal value under international law, they were meant to be temporary. Jordan's seizure of the West Bank was not recognized by international law. The assumption that the so-called "1967 lines"  should be used as the borders of a Palestinian state is legally baseless.

UPDATE: Video of a lecture that describes this in detail:

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