The principle of uti possidetis juris and the borders of Israel

Most of the writing on the ICJ Advisory Opinion on the Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including Jerusalem, has related to the opinion of the Court itself, and to the attached individual opinions and declarations of the judges who agreed with most, if not all, of the Court’s conclusions. In this short post, I shall relate to an argument raised in the Dissenting Opinion of Vice-President Julia Sebutinde.

The uti possidetis argument

The argument, previously raised in an article by Avi Bell and Eugene Kontorovich,¹⁾ is that the borders of Israel are determined by the principle uti possidetis juris. According to this principle, when a new State is established in territory that was previously subject to a colonial regime, the borders of that State are the administrative borders of the territory that had been subject to colonial rule. This rule applies even if there are ethnic or national minorities in that territory who wish to exercise their right to self-determination in a separate State. Bell and Kontorivich argued, and in her opinion Judge Sebutinde adopted their argument, that since Israel is the only State that arose in the territory of Palestine after the British withdrew from the Mandate in May 1948, Israel’s borders are the international borders of Palestine that existed during the Mandate. Hence Israel is the sovereign power in the whole territory of Palestine “from the river to the sea.” Israel may negotiate with other States to modify those borders, but the starting line is the borders of Mandatory Palestine.

Bell and Kontorovitz point out in their article that the “critical time” for determining the borders of a newly independent State is the date of independence. Later developments may serve as evidence about the intention when the new State was established, but cannot abrogate the original intention. It is clear, then, that the time for applying uti possidetis in the case of Israel is the date of its establishment as an independent State, namely 15 May 1948, while subsequent events may reveal how the leaders of Israel related to its borders on that date.

Other scholars have related to the uti possidetis argument. Thus, for example, writing before Bell and Kontorovich, Malcolm Shaw argued that the object of the uti possidetis principle is to promote stability and avoid conflict when colonial rule comes to an end.²⁾ Hence the international community may depart from the principle when it is of the opinion that applying it might endanger peace and security. In Shaw’s opinion, this was the situation when the United Nations General Assembly adopted the Partition Plan (UNGA Res 181(II), 29 November, 1947). Under this Plan, after the British Mandate over Palestine ended, two separate States, an Arab State and a Jewish State, were to be created in the territory of the Mandate. The borders of the two States were part of the Plan.

Ariel Zemach presented similar arguments, but also raised another reason why the principle does not apply in the case of Israel.³⁾ Zemach argued that while the uti possidetis principle overrides the right of an ethnic/national minority to self-determination, it has never been applied to allow a minority in a former colonial territory to demand sovereignty in the whole of that territory, thereby frustrating the right to self-determination of the national majority in the territory. In this context, it is appropriate to point out that according to the report of the United Nations Special Committee on Palestine (UNSCOP) that recommended partition of Palestine into two States, at the end of 1946, the Jews comprised only one third of the population in the territory of the British Mandate.⁴⁾

Rejecting the argument

Shaw and Zemach’s grounds for rejecting the application of the uti possidetis principle in the case of Israel/Palestine are convincing. At the same time, I contend that there is another more cogent reason for rejecting the Bell/Kontorovich/Sebitunde argument. That reason is that at the time of independence Israel’s political leaders did not claim that the new State was established in the whole of the territory of the Mandate. In fact, the founding fathers of the State of Israel claimed the opposite: they accepted the principle of partition even though they were not happy with the Partition Plan proposed in General Assembly Resolution 181 and did not intend to accept the borders laid out in that Plan.⁵⁾

The reasons for accepting partition of Palestine were complex. In the first place, the leaders of the Yishuv (the Jewish community in Palestine) wanted to obtain international legitimacy for the Jewish State. They realised that achieving this goal was dependent on accepting the UN Partition Plan. The representatives of the Jewish Agency, who represented the Yishuv on the international level in the pre-State era, and immediately after the Declaration of Independence, worked hard to persuade UN member States to support partition,⁶⁾ and General Assembly Resolution 181 is expressly mentioned in the Declaration on the Establishment of the State of Israel of 14 May 1948. Furthermore, in secret talks with King Abdallah of Jordan before the surrounding Arab countries invaded Palestine on 15 May 1948, representatives of the Yishuv made it clear that they were committed to the principle of partition and would not agree to a plan that contradicted it.⁷⁾ Secondly, the leaders of the Yishuv realised full well that there could be a Jewish State only if there were a large Jewish majority in it. Establishing the State in the whole of Mandatory Palestine would have meant that the Jews were a minority in their own State.

The conduct of the political leaders of Israel after the State was established reveals quite clearly that they never imagined, let alone claimed, that the State had been established in the whole of Palestine. The Provisional Government of the State related to territories held by the Israeli Defence Forces (IDF) that were not included in the Jewish State under the UN Partition Borders as occupied territory.⁸⁾ Hence it was of the opinion that special legislation was required in order to apply the law of Israel in such territories. It therefore tabled legislation that was enacted by the Provisional Council of State, which served as the State’s legislative body before the first elections. This legislation, the Area of Jurisdiction and Powers Ordinance,⁹⁾ of 26 September 1948, provides:

“Any law that applies in the whole of the State of Israel will be regarded as applying in all the territory both of the State of Israel as well as in any part of the Land of Israel which the minister of defence defines in a proclamation is being held by the IDF.”

We see then that both the executive and legislative organs of the newly independent State made a clear distinction between the territory of the State and other territory in the Land of Israel that had been part of the British Mandate territory. There could hardly be more persuasive evidence that neither of these organs thought that the borders of the State of Israel had been determined by the principle of uti possidetis.

According to the UN Partition Plan, Jerusalem and its environs were not supposed to be part of either of the two States envisioned in that Plan, but a corpus separatum that would be subject to international control. After the IDF took control of West Jerusalem in 1948, it was regarded as occupied territory, and not part of Israel’s territory.¹⁰⁾ In a meeting of the UN Security Council that took place on 22 May, 1948, Abba Eban, the Jewish Agency representative who represented the Provisional Government of Israel, was asked which territory was held by the Israeli forces. Eban replied:

“The Provisional Government of Israel actually exercises control at present over the entire area of the Jewish State, as defined in the resolution of the General Assembly of 29 November 1947. In addition, the Provisional Government is now exercising control over the city of Jaffa; northwestern Galilee, including Acre, Zib, Basea and the Jewish settlements up to the Lebanese frontier; a strip of territory alongside the road from Hulda to, Jerusalem; almost all of new Jerusalem and of the Jewish quarter within the walls of the Old City of Jerusalem.
The above areas outside the territory of the State of Israel are under the control of the military authorities of the State of Israel, who are strictly adhering to international regulations in this regard. The southern Negeb is an uninhabited area over which no effective authority has ever existed.”¹¹⁾ (emphasis added)

Here then is more evidence that the Provisional Government of Israel, comprised of members of political parties that enjoyed the support of the majority of the Yishuv, did not consider that Israel had been established in the whole of Mandatory Palestine.

In 1949 Israel conducted negotiations with the surrounding Arab States that led to the signing of Armistice Agreements between Israel and Egypt, Jordan, Syria and Lebanon. The Armistice Agreement between Israel and Egypt of 24 February 1949 states that the Demarcation Line established between the parties “is not to be construed in any sense as a political or territorial boundary, and is delineated without prejudice to the rights, claims and positions of either Party to the Armistice as regards ultimate settlement of the Palestine question.” (Art. V. 2). The Armistice with Jordan of 3 April 1949 does not contain a similar clause. It does, however, state (Art. II) that:

1. The principle that no military or political advantage should be gained under the truce ordered by the Security Council is recognised;
2. It is also recognised that no provision of this Agreement shall in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations.

Following the signing of the Armistice Agreement with Jordan there was uncertainty about the legal status of the Armistice lines between Israel and Jordan. On the one hand, the Agreement states that its provisions are “dictated exclusively by military considerations”, thereby seemingly implying that those lines are only the dividing lines between two armies, and not lines defining the political borders of the State of Israel. On the other hand, both sides to the Agreement committed themselves to refrain from use of force against the other, recognized the right of each party to its security and to be free from attack by the other party, and declared that “establishment of an armistice between the armed forces of the two Parties is accepted as an indispensable step toward the liquidation of armed conflict and the restoration of peace in Palestine.” (ibid., Art. I).

Under the Armistice lines, Israel had more territory than the territory allotted to the Jewish State under the UN Partition Plan. Since Israel’s leaders feared that there may be pressure to force Israel to withdraw to the Partition Plan lines, Israel had a political interest in promoting recognition of the Armistice lines as its political border.¹²⁾ Hence, quite soon after the end of the War in 1949, senior officials presented arguments that the Armistice lines were the recognized borders of the Jewish State. A main example is a letter dated 23 October 1949 from Shabtai Rosenne, legal adviser of the Israel Ministry for Foreign Affairs, to Abba Eban, head of Israel’s delegation to the U.N. In this letter Rosenne argues that Israel has sovereignty over all the territory that is under its control. According to Rosenne, this sovereign territory includes West Jerusalem, which, under Resolution 181, was supposed to be part of the corpus separatum that would not belong to either of the two States that would come into being in Palestine after the Mandate ended.¹³⁾ Rosenne subsequently delivered and published a public lecture in which he argued that the Armistice Lines are Israel’s political borders.¹⁴⁾ As legal adviser to the Israel Ministry of Foreign Affairs, it is inconceivable that Rosenne would publicly have presented a view on the State’s borders that was incompatible with that of his government.

During the 1950’s, Israel’s leaders called on its neighbours to enter into negotiations on permanent peace agreements. Speaking in the Knesset in May 1954, Foreign Minister Moshe Sharett declared that Israel was prepared to enter into negotiations that would be based on “Israel as it is, with its territory and population, that is to say Israel in its existing borders…”¹⁵⁾ Had the decision-makers in Israel been of the opinion that Israel had inherited the borders of Mandatory Palestine, one would have expected its Foreign Minister to claim that these borders would be the starting point for negotiations, but that in a peace agreement Israel might be prepared to consider modifying them. Sharett did nothing of the sort. Once again this is clear evidence that none of Israel’s decision-makers thought that the uti possidetis principle was relevant in determining the borders of the Jewish State.

In order to accept that Israel’s borders were determined by the uti possidenti principle, we have to believe that none of the branches of Israel’s government were ever aware that Israel’s sovereign territory included the whole of the West Bank and Gaza. After the June 1967 Six Day War the Israeli authorities related to the territories that had been taken by the IDF as occupied territory in which Israeli law did not apply. Hence, they thought it necessary to pass special legislation in order to apply Israeli law in East Jerusalem.¹⁶⁾ Furthermore, the authorities never once argued before Israel’s Supreme Court that these territories were part of the State’s sovereign territory. In a joint judgment of ten judges handed down in 2005, in referring to the West Bank and Gaza, the Supreme Court declared:

“According to the legal outlook of all Israel’s governments as presented to this court – an outlook that has always been accepted by the Supreme Court – these areas are held by Israel by way of belligerent occupation… The legal regime that applies there is determined by the rules of public international law and especially the rules relating to belligerent occupation.”¹⁷⁾

Evidence of the approach of Israel’s legal authorities is also contained in the first Military Order promulgated when Israel took control over the West Bank in June 1967. That Order provided that the military courts that had been established to try residents of the West Bank who were charged with security offences must apply the Fourth Geneva Convention, 1949, that applies to the protection of persons in occupied territory.¹⁸⁾ Some months later, the section in the Military Order relating to the Geneva Convention was revoked and the government raised doubts whether the Convention applied.¹⁹⁾ However, these doubts were not based on the claim that the West Bank is part of Israeli territory, but on the claim that since Jordan was not the sovereign power in the West Bank when Israel occupied the area, the Convention did not apply to this specific occupation.²⁰⁾ The Israel Supreme Court has ruled that there was never any doubt that the Hague Regulations annexed to the 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land apply in the West Bank.²¹⁾ The Court regularly resorts to Article 43 of those Regulations that defines the obligations of an occupying power in occupied territory.²²⁾

It is indeed true that the “critical time” for application of the uti possidetis principle is the date of independence. But subsequent developments provide crucial evidence whether the newly created State intended to inherit the borders of the departing colonial regime. I have shown that neither at the time of independence nor later, when Israel gained control over the West Bank, did any of its governmental organs claim that Israel’s sovereign territory extends “from the river to the sea.”

Conclusion

Vice-President Sebutinde’s view that under the principle of uti possidetis juris Israel’s political borders are those of Mandatory Palestine faces an insuperable obstacle. All the cases in which this principle has been applied are cases of border disputes between States in which one State rests its claim on the colonial borders (or, in the case of the dissolution of an empire, on the administrative borders between different parts of the empire), or in which a national minority demands not to be part of the State that is established in those borders. There is no precedent for application of the uti possidetis principle when not only the newly established State itself does not claim that it is inheriting the colonial borders but shows in its actions that it does not regard those borders as its borders.

That a State’s appetite for territory grows, when 20 years after independence it expands its control beyond its independence borders, can in no way change the fact that it did not claim to have inherited the borders of the colonial power that ruled the territory before it became independent. International law does not force a State to accept the colonial borders even though for various reasons it never claimed that these were its borders, and agreed to partition of the colonial territory so that another people living there could have their own State in the territory. The principle certainly does not apply when the agreement of the new State to partition of the colonial territory followed the view of the international community that two separate States should be created in the territory that had been administered by the departing mandatory power.