“Uti possidetis juris” & Eretz Yisrael

 The rights that the Jewish Community acquired under the Mandate for Palestine did not terminate upon expiration of the Mandate as per Article 80 of the UN Charter. There is a principal in international law that “emerging states acquire the territory of their former administrative district(s)” – As well, Uti possidetis (lit. “as you possess”) is a principle in international law that territory and other property remains with its possessor at the end of a conflict.
Since the Hashemite Kingdom of [trans-]Jordan was established as “a [temporary] administrative power” under Article 25 of the Mandate for Palestine and trans-Jordan illegally annexed and ethnically cleansed Judea and Samaria; at the end of hostilities (in this case at the conclusion of a treaty of peace in 1984) territorial sovereignty reverts back to the beneficiary of the “sacred trust” under which it was held (per Article 80 of the UN Charter and Article 5 of the Mandate for Palestine) – the Jewish People – terra nullius does not apply as these [“disputed”] Lands are “Liberated Lands” under the principal of Uti possidetis; now that Israel possesses peace treaties with Egypt and Jordan these Liberated Lands are “Treaty Lands” (It might be argued that since Israel is still in a state of war with Lebanon, Syria and Iraq in a defensive posture, terra nullius could never apply due to the Treaties of Sevres and the Anglo-American Treaty of 1924).
One might invoke the principal of Uti possidetis per the 1969 Convention on the Laws of Treaties, as relevant to the Faisal-Weizmann Agreement, the Franco-British Boundary Convention and the rights acquired under the Mandate, now reserved in Article 80 of the UN Charter and as acquired under the Anglo-American Treaty of 1924 (e.g. Jewish territorial integrity, self-determinism) and demand recognition of past acts of Arab (“Palestinian”) self-determinism (the December 1948 Jericho Conference) (estoppel and laches) as no Trusteeship Agreement has been made under emerging or developing international law with respect to these Treaty Lands.
More recently, the principle has been used in the modified form “Uti possidetis juris” to establish the frontiers of newly independent states by ensuring that the frontiers followed the original boundaries of the old territorial entities from which they emerged.

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.