Uti possidetis Juris

“Uti possidetis Juris”

“Uti possidetis juris“ it is a very powerful principle in international law that can be used to categorically confirm that the borders of the State of Israel should be considered those of the British Palestine Mandate. “Uti possidetis juris” is a Latin phrase meaning “as you possess under law,” that is used in international law to define the borders of states that derive either from colonial occupation or from previous unclear origins, as is the case with Israel. This blog briefly summarizes an important article entitled “PALESTINE, UTI POSSIDETIS JURIS AND THE BORDERS OF ISRAEL” by Professors Abraham Bell and Eugene Kontorovich, to be published in the Arizona Law Review . This consists of 70 pages with numerous examples of the application of this principle of international law to actual cases of sovereignty and border disputes in the real world (http://ssrn.com/abstract=2745094).

Many of us have argued that the legal arrangements subsequent to WWI form the basis for Israel’s borders to include Gaza and the West Bank (Judea and Samaria). These legal arrangements included the treaty of Ran Remo in 1920, that incorporated the Balfour Declaration of 1917, the Treaty of Sevres in 1920, that led to the British Mandate of 1922 that was approved by the League of Nations and specifically adopted by its replacement the United Nations when it was established. Note that in none of these cases was the establishment of an Arab State or specifically a Palestinian State, envisaged to be included in the British Mandate. However, while we were arguing this on the basis of international law we lacked the evident expertise to know the principles involved. Now Profs. Bell and Kontorovich have given us the specific principle in international law that applies to this case and that is authoritative.

Here are some examples where this principle has been applied and has led to the definition of borders of new states: 1. The States constituting the former Soviet Union, where the historic independent sovereign borders were used to reconstitute the new borders; 2. Similarly with the former Yugoslavia that gave rise to several new states based on previous borders; 3. The British Mandate of Mesopotamia and the borders of Iraq and Kuwait; 4. The French Mandate of Syria and the borders of Syria, Lebanon and Turkey; 5. The borders between Rwanda and Burundi; 6. The borders of Cameroon and Togo. Since the principle of border demarcation is clear in these examples, it should be applied equally to the issue of Israel’s undefined borders.

However, the Mandate, included an important exception. Article 25 of the Mandate permitted Britain to “postpone or withhold” the provisions of the Mandate recognizing Jewish rights “[i]n the territories lying between the Jordan and the eastern boundary of Palestine as ultimately determined,” subject to the approval of the Council of the League of Nations. Britain used this exception in order to satisfy its commitments to the Hashemites of Mecca and unilaterally awarded the area of Transjordan to the Emir Abdullah in 1922. However, in doing so the British demarcated the administrative legal boundary of Western Palestine as the Jordan River.

Regarding the borders of Israel their conclusion is: “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” (p. 57-8). Without further elaboration, this is as clear and definitive a statement as can be expected, although it is certainly contrary to the common perceived wisdom of the situation.

Position Paper: Israel’s Rights in the Land

Legal Grounds Campaign

This position paper was prepared by the Legal Grounds team, detailing our position on the status of Judea and Samaria according to International Law.

For a PDF version, click here.

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[] In 1917, British Foreign Minister Lord Alfred Balfour sent a letter, which had been approved by the Cabinet, to Lionel Walter Rothschild—who was the 2nd Lord Rothschild and an unofficial leader of the British Jewish community—to be brought to the Zionist Federation. This letter, which became known as the Balfour Declaration, endorsed the establishment of a Jewish national homeland in Palestine.

[] In 1922, the League of Nations unanimously approved the British Mandate for Palestine, which an article of international law. Based upon the Balfour Declaration, it called for a national homeland for the Jews in Palestine, with Britain, the Mandatory, to “encourage close settlement on the land.”

This vote was preceded by the San Remo Resolution of 1920, the first international legal document that spoke of a national homeland for the Jews in Palestine.

[] When the United Nations succeeded the defunct League of Nations in 1945, it incorporated into its Charter Article 80, which sustained the Trusteeship System.  This effectively ensured that the terms of the Mandate for Palestine would continue to be fully implemented.

[] In 1947, the General Assembly passed Resolution 181, which called for the division of Palestine into a Jewish and an Arab state.  This is without any standing in international law.  This is the case, first, because General Assembly resolutions are only recommendations.  And then because the Arab nations voted against it.

[] On May 14, 1948, when Israel declared independence, the Egyptian Air Force immediately attacked; this set the stage for the entry into Israel of the armies of Egypt, Syria, Jordan, Lebanon and Iraq.  When the War of Independence was over in 1949, armistice agreements were drawn up.

What was known as the Green Line – which the Palestinian Arabs claim is their “legitimate border” with Israel – was only an armistice line established between Israel and Jordan by virtue of that 1949 armistice agreement.  At the insistence of Arab nations, the agreement specified that this line was an armistice demarcation line established for military purposes and would not prejudice ultimate political settlement between the parties – future territorial settlement or establishment of a boundary line. Palestinian Arabs played no role in this scenario, and there was no mention of a “Palestinian state” in the agreement.

Jordan’s occupation of Judea and Samaria from 1949 until 1967 – which occurred as a result of an offensive war in 1948-49 – was illegal, recognized by only two nations in the world.

[] That 1949 armistice – and the armistice line it established – was breached by Jordan in 1967 when it attacked Israel. In legal terms, it then no longer existed.

In the course of fighting a defensive war, Israel moved into Judea and Samaria and eastern Jerusalem.  Israel was liberating these areas from an illegal occupation.  Israel could not be an “occupier” in that Land, as 1) it was part of the original Mandate land, 2) the doctrine of customary international law in Uti Possidetis Juris states that emerging states presumptively inherit their pre-independence administrative boundaries, and 3) there was no legitimate sovereign in the land before Israel moved in.

[] UN Security Council Resolution 242, passed after the war and reaffirmed in UN Security Council Resolution 338 of 1973, did not call for Israel to withdraw from all territories acquired in the course of the war, but rather from “territories”: by design it did not say “the” territories.  Israel, in withdrawing from the Sinai, which represented 91% of the land that had been acquired during the war, can be said to have fulfilled that requirement.

Its recognition of the right of every state in the area to “live in peace within secure and recognized boundaries free from threats or acts of force” is understood to reject the requirement that Israel return to the former 1949 armistice line, as, on the face of it, this did not provide Israel with a secure boundary.  In referring to “recognized boundaries” it is calling for negotiations.  To Israel’s east, those negotiations were understood to be between Israel and Jordan.  Once again, there was no reference to a Palestinian people or a Palestinian state and in no way was it implied that Israel would negotiate with the Palestinian people in determining her eastern border.
A reference in 242 to “a just settlement of the refugee problem” has been interpreted as referring in part to the Palestinian Arab refugees . It does not require that these refugees be given any territory or political rights. 

[] In 1994, a peace treaty between Israel and Jordan was signed. In obvious reference to Resolution 242, it recognizes each other’s right to live within “secure and recognized boundaries.” The treaty states explicitly that “the international boundary between Israel and Jordan is delimited with reference to the boundary definition under the Mandate.”  This is an article of international law, as the boundary was agreed to by the parties on either side of the line.

(The treaty qualifies this by stating that this border is set “without prejudice to the status of any territories that came under Israeli military government control in 1967.”  This is recognition that the border might change if a Palestinian state were established.)

[] In 1993, the first Oslo Accord was signed between Israel and the PLO.  It established an interim self-government, the Palestinian Authority.

The stated goal of the Accord was a “permanent status” agreement to be achieved via bilateral negotiations.  It says nothing about a Palestinian state.

It was understood that the issue of Israel “settlements” in Judea and Samaria would be resolved in the final negotiations, that is, there was no prohibition on Israeli building.

[] In 1995 Oslo II was signed.  It established Areas A (under full PA administration), B (PA civil administration and Israeli military administration), and C (under full Israeli administration) in Judea and Samaria.  It might be argued that as a result of these divisions Israeli building is restricted to Area C, but that is where all the “settlements” are located in any event. There is no restriction on Israeli building in area C.

Leading legal experts maintain that Oslo is not binding in international law as it was not an agreement between two states. The fact that it was witnessed by the major powers and endorsed by the UN does provide it with a unique status.

In any event, even if it did have such weight, it can be argued that the Palestinian Authority has materially breached the agreement by virtue of the fact that it called for both parties to ”immediately, efficiently and effectively [act] against acts or threats of terrorism, violence or incitement.”

On the contrary, the PA has acted blatantly and consistently to foster terrorism – giving “salaries” to terrorists in Israeli prisons, naming town squares after terrorists and otherwise praising them publicly, referring to terrorists as “martyrs.”

What is more, the PA was to be an interim entity of self-government with a final understanding to be achieved via negotiations. Yet those negotiations have never taken place in good faith because of the maximalist and unreasonable demands, totally lacking in a spirit of compromise, put forth by the PLO.

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In summary:

The call by the PLO for a state that would extend from Jordan’s border to the 1949 armistice line is constructed out of thin air and flies in the face of historical and legal realities. 

  • The 1949 Armistice line has no legal standing at present.  There is no way in which it can be said to be the western “border” of a Palestinian state.
  • There is a doctrine of customary international law known as Uti Possidetis Juris. It states that emerging states presumptively inherit their pre-independence administrative boundaries.  This means Israel has the borders of the Mandate, which immediately preceded it.  That border is along Jordan on the east and includes Judea and Samaria as part of Israel.
  • The Oslo Accords (II) put no restriction on Israeli building in Area C (which is where all Israeli building is done). The Accords stated that the issue of “settlements” would be resolved in final negotiations.
  • The Oslo Accords, which in any event have been materially breached by the Palestinian Arabs, speak about “a permanent status” agreement to be arrived at via bilateral negotiations. The Accords say nothing about a full and sovereign Palestinian state to be established in Judea and Samaria

It is certainly theoretically possible that Israel, in honest negotiations with the PLO, might opt to grant the Palestinian Arabs a self-governing autonomy in a defined area within Judea and Samaria – a region to which Israel has solid claim.

At present, even this is not a viable alternative, not remotely a possibility, given the belligerence, the maximalist demands, and the fostering of terrorism of the PLO.

The “Mandate for Palestine” is Valid to This Day

The “Mandate for Palestine” is Valid to This Day

The Mandate survived the demise of the League of Nations. Article 80 of the UN Charter implicitly recognizes the “Mandate for Palestine” of the League of Nations.

This Mandate granted Jews the irrevocable right to settle anywhere in Palestine, the area between the Jordan River and the Mediterranean Sea, a right unaltered in international law and valid to this day. Jewish settlements in Judea and Samaria (i.e. the West Bank), Gaza and the whole of Jerusalem are legal.

The International Court of Justice reaffirmed the meaning and validity of Article 80 in three separate cases:

  • ICJ Advisory Opinion of July 11, 1950: in the “question concerning the International States of South West Africa.”33
  • ICJ Advisory Opinion of June 21, 1971: “When the League of Nations was dissolved, the raison d’etre [French: “reason for being”] and original object of these obligations remained. Since their fulfillment did not depend on the existence of the League, they could not be brought to an end merely because the supervisory organ had ceased to exist. … The International Court of Justice has consistently recognized that the Mandate survived the demise of the League [of Nations].”34
  • ICJ Advisory Opinion of July 9, 2004: regarding the “legal consequences of the construction of a wall in the occupied Palestinian territory.”35

In other words, neither the ICJ nor the UN General Assembly can arbitrarily change the status of Jewish settlement as set forth in the “Mandate for Palestine,” an international accord that has never been amended.

All of western Palestine, from the Jordan River to the Mediterranean Sea, including the West Bank and Gaza, remains open to Jewish settlement under international law.

Professor Eugene Rostow concurred with the ICJ’s opinion as to the “sacredness” of trusts such as the “Mandate for Palestine”:

“‘A trust’—as in Article 80 of the UN Charter—does not end because the trustee dies … the Jewish right of settlement in the whole of western Palestine—the area west of the Jordan—survived the British withdrawal in 1948. … They are parts of the mandate territory, now legally occupied by Israel with the consent of the Security Council.”36

The British Mandate left intact the Jewish right to settle in Judea, Samaria and the Gaza Strip. Explains Professor Rostow:

“This right is protected by Article 80 of the United Nations Charter, which provides that unless a trusteeship agreement is agreed upon (which was not done for the Palestine Mandate), nothing in the chapter shall be construed in and of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which members of the United Nations may respectively be parties.

“The Mandates of the League of Nations have a special status in international law. They are considered to be trusts, indeed ‘sacred trusts.’

“Under international law, neither Jordan nor the Palestinian Arab ‘people’ of the West Bank and the Gaza Strip have a substantial claim to the sovereign possession of the occupied territories.”

It is interesting to learn how Article 80 made its way into the UN Charter.

Professor Rostow recalls:

“I am indebted to my learned friend Dr. Paul Riebenfeld, who has for many years been my mentor on the history of Zionism, for reminding me of some of the circumstances which led to the adoption of Article 80 of the Charter. Strong Jewish delegations representing differing political tendencies within Jewry attended the San Francisco Conference in 1945.

Rabbi Stephen S. Wise, Peter Bergson, Eliahu Elath, Professors Ben-Zion Netanayu and A. S. Yehuda, and Harry Selden were among the Jewish representatives. Their mission was to protect the Jewish right of settlement in Palestine under the mandate against erosion in a world of ambitious states. Article 80 was the result of their efforts.”37

The phrase “in Palestine”, another expression found in the Balfour Declaration that generated much controversy, referred to the whole country, including both Cisjordan and Transjordan. It was absurd to imagine that this phrase could be used to indicate that only a part of Palestine was reserved for the future Jewish National Home, since both were created simultaneously and used interchangeably, with the term “Palestine” pointing out the geographical location of the future independent Jewish state. Had “Palestine” meant a partitioned country with certain areas of it set aside for Jews and others for Arabs, that intention would have been stated explicitly at the time the Balfour Declaration was drafted and approved and later adopted by the Principal Allied Powers. No such allusion was ever made in the prolonged discussions that took place in fashioning the Declaration and ensuring it international approval.

There is therefore no juridical or factual basis for asserting that the phrase “in Palestine” limited the establishment of the Jewish National Home to only a part of the country. On the contrary, Palestine and the Jewish National Home were synonymous terms, as is evidenced by the use of the same phrase in the second half of the Balfour Declaration which refers to the existing non-Jewish communities “in Palestine”, clearly indicating the whole country. Similar evidence exists in the preamble and terms of the Mandate Charter.

The San Remo Resolution of 1920 on Palestine combined the Balfour Declaration of 1917 as international treaty with Article 22 of the League Covenant. This meant that the general provisions of Article 22 applied to the Jewish people exclusively, who would set up their home and state in all of Palestine. There was no intention to apply Article 22 to the Arabs of the country, as was mistakenly concluded by the Palestine Royal Commission which relied on that article of the Covenant as the legal basis to justify the partition of Palestine, apart from the other reasons it gave. The proof of the applicability of Article 22 to the Jewish people, including not only those in Palestine at the time, but those who were expected to arrive in large numbers in the future, is found in the Smuts Resolution, which became Article 22 of the Covenant. It specifically names Palestine as one of the countries to which this article would apply. There was no doubt that when Palestine was named in the context of Article 22, it was linked exclusively to the Jewish National Home, as set down in the 1917 Balfour Declaration, a fact everyone was aware of at the time, including the representatives of the Arab national movement, as evidenced by the agreement between Emir Feisal and Dr. Chaim Weizmann dated January 3, 1919 as well as an important letter sent by the Emir to future US Supreme Court Justice Felix Frankfurter dated March 3, 1919. In that letter, Feisal characterized as “moderate and proper” the Zionist proposals presented by Nahum Sokolow and Weizmann to the Council of Ten at the Paris Peace Conference on February 27, 1919, which called for the development of all of Palestine into a Jewish commonwealth with extensive boundaries. The argument later made by Arab leaders that the 1917 Balfour Declaration and the Mandate for Palestine were incompatible with Article 22 of the Covenant is totally undermined by the fact that the Smuts Resolution – the precursor of Article 22 – specifically included Palestine within its legal framework.

The San Remo Resolution of 1920 on Palestine became Article 95 of the Treaty of Sevres in 1920 which was intended to end the war with Turkey, but though this treaty was never ratified by the Turkish National Government of Kemal Ataturk, the Resolution retained its validity as an independent act of international law when it was inserted into the Preamble of the Mandate for Palestine and confirmed by 52 states. The San Remo Resolution of 1920 is the base document upon which the Mandate was constructed and to which it had to conform. It is therefore the pre-eminent foundation document of the State of Israel and the crowning achievement of pre-state Zionism. It has been accurately described as the Magna Carta of the Jewish people. It is the best proof that the whole country of Palestine and the Land of Israel belong exclusively to the Jewish people under international law.

The Mandate for Palestine implemented both the 1917 Balfour Declaration and Article 22 of the League Covenant, i.e. the San Remo Resolution of 1920. All four of these acts were building blocks in the legal structure that was created for the purpose of bringing about the establishment of an independent sovereign Jewish state. The Balfour Declaration of 1917; in essence stated the principle or object of a Jewish state. The San Remo Resolution of 1920 gave it the stamp of international law. The Mandate furnished all the details and means for the realization of the sovereign Jewish state. As noted, Britain’s chief obligation as Mandatory, Trustee and Tutor was the creation of the appropriate political, administrative and economic conditions to secure the sovereign Jewish state. All 28 articles of the Mandate were directed to this objective, including those articles that did not specifically mention the Jewish National Home. The Mandate for Palestine created a right of return for the Jewish people to Palestine and the right to establish settlements and communities on the land throughout the country of Palestine in order to create the envisaged Jewish state.