Lennart Eriksson

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Israel and ”uti possidetis juris”

The author of the text below is unknown to me. I have received it through Facebook. I have decided to publish it anyway (but not under my name) because I find it very accurate and very important as a means of understanding that Israel have the legal right to Judea and Samaria – and Israel’s legal right to exist in itself. The unknown author must be commended for his/hers good work. I will, however reluctantly, certainly delete this text, should the author ask me to do so. In that case, please let me know. /Lennart

International law establishes the borders of new states emerging from Mandates or colonies on the basis of territorial frontiers at the time of independence. Application of this doctrine (known as uti possidetis juris) to the Mandate for Palestine means that the State of Israel has a legitimate claim of sovereignty up to the territorial frontiers of the Palestine Mandate in May 1948 when Israel became an independent state, inclusive of Jerusalem, the Gaza Strip and the “West Bank”.

International law contains several principles upon which legally enforceable borders can come into existence. These include: effective control; historical title; and treaties. In recent years, many legal judgments, including the rulings of the International Court of Justice regarding border disputes in Asia and Africa, and examinations by lawyers regarding issues such as the borders of the new states emerging from Yugoslavia and the former Soviet Union, have emphasized that the most persuasive principle for determining the borders of new states is the doctrine known as uti possidetis juris. The borders of the state of Israel, no less than those of other states, are subject to this doctrine.

Uti possidetis juris is one of the main principles of customary international law intended to ensure stability, certainty and continuity in the demarcation of boundaries. The principle acts to clarify and determine the territorial boundaries of newly emerging states by providing that states emerging from decolonization or mandates shall presumptively inherit the colonial administrative borders that existed at the time of independence. In effect, the principle of uti possidetis juris transforms the colonial and administrative lines existing at the moment of the birth of the new State into national borders. The principle applies to the State as it is [at the moment of independence], i.e. to the ‘photograph’ of the territorial situation then existing.

In 1947 Britain decided to terminate her stewardship of the Mandate for Palestine and notified the United Nations accordingly. It should be noted that the Mandate itself was not terminated but only Britain’s stewardship of it. Applying the principle of uti possidetis juris to the borders of the State of Israel (the only state to emerge in Palestine upon the withdrawal of Great Britain), the administrative boundaries of the Mandate for Palestine on 14th May 1948 became the borders of the State of Israel that came into existence upon the proclamation of its independence on that date. On 15th May 1948, Great Britain, the Mandatory for Palestine, officially departed. The eastern boundary of the Mandate on 14th May 1948 was the Jordan River, and a line extending south from the Dead Sea (into which the Jordan River empties) to the Red Sea near Aqaba. (The Mandate had originally included the territory of Transjordan, but Transjordan was administratively separated from Palestine in 1922, with the approval of the League of Nations, and granted its independence by Britain in 1946.)

It is generally understood that the principle of uti possidetis juris operates retrospectively to the moment of independence, without reference to the territories actually controlled by the new state. Thus, even though the State of Israel, upon its creation, did not have effective control over all of the area previously covered by the Mandate for Palestine, it acquired the borders of the Mandate.

The administrative boundaries of the Mandate for Palestine remained effective right up to the proclamation of the State of Israel on 14th May, 1948. It is important to note that the November 1947 UN “Partition Plan”, recommended by General Assembly Resolution 181, never went into effect. Its primary objective was to partition the remaining Israel territory (already reduced – as a result of the separation of Transjordan in 1922 – by approximately 78% of the originally mandated territory) to create independent Jewish and Arab states, which were to work together in an economic union. The principal reason the Plan was never implemented was that the Arabs rejected it in its entirety and chose instead to engage in war, thereby destroying any possibility of the cooperation necessary to realize the economic union and precluding any subsequent attempt to revive the resolution. Owing to the Arab rejection and subsequent military aggression, counter to the UN Charter, the Security Council, even though asked by the General Assembly, took no action to implement the resolution. Likewise, Britain took no action to implement the resolution and it refused to facilitate the Palestine Commission’s attempts to do so.

Finally, it is strongly arguable that nothing that has happened since May 1948 has altered the legal status of those borders. Specifically, neither the 1949 Armistice Agreements, the 1994 Israel-Jordan Peace Treaty, the PLO’s claims since 1988 to the existence of a “State of Palestine”, nor the Oslo Agreements, have been legally effective to alter the borders of the State of Israel as they existed in May 1948. Moreover, Article 3.1 of the peace treaty between Israel and Jordan recognized that the ”international boundary between Israel and Jordan is delimited with reference to the boundary definition under the Mandate” which is significant since it comports fully with the application of uti possidetis juris.

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