Palestine, Uti Possidetis Juris, and the Borders of Israel

[Mosby]

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 the 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).


http://arizonalawreview.org/palestine-uti-possidetis-juris-and-the-borders-of-israel/

[Little Tich]

1. Wow, that's a strong legal case for the bi-national state - I didn't know you were a one-stater...

In the end, if Israel doesn't want to create a Palestinian state, the Palestinian territories are on their side of the sovereign border that's already been delineated, so they will have to be absorbed into Israel. 5 million Palestinians get Israeli citizenship, and all those refugees who want to return to their homeland can do so.

Game over, problem solved.

[aranthus]

2. Only as to outside claimants.

The doctrine applies as between states. So between Jordan and Israel, Israel has the legal claim to the West Bank, and Jordan's was always illegitimate. It applies when there is a single sovereign that establishes itself in a colonial territory. But in the West Bank and Gaza there are two (three if Hamas is separate) entities claiming sovereignty. As between the Palestinians and the Israelis, the doctrine isn't very helpful.

And if Israel is the legal sovereign of the West Bank, and has been in possession since 1967, then isn't the Israeli government wrongfully denying citizenship to the Palestinians? Israel can't have it both ways. It can't claim legal sovereignty over a territory and at the same time ignore its responsibilities as the sovereign.

[Israeli]

3. The Settlements vs. the Peace Process

October 7, 2016
Mitchell Plitnick

On Wednesday, in the wake of Israel’s announcement of hundreds of more units in West Bank settlements, the Israeli Ministry of Foreign Affairs posted a page on its website articulating its view that building in the occupied West Bank is legal under international law and is not, as many critics claim, an impediment to peace. The fact that the MFA felt the need to make such a case indicates that rising international criticism, particularly from the U.S., is having an impact, and that case bears an examination of its key claims.

Israel claims that the settlements are not illegal because the laws of belligerent occupation do not apply to the West Bank and that the prohibition against transferring citizens of an occupying power to occupied territory “…applied to forcible transfers and not to the case of Israeli settlements.”

The vast majority of legal opinions, including those of the High Court of Justice in Israel and the US State Department (which consistently refers to the West Bank as “occupied territory”), directly contradict this claim. As recently as 2004, the High Court in Israel ruled “…that Israel holds the (West Bank) in belligerent occupation,” and that its authority over the Palestinians “… flows from the provisions of public international law regarding belligerent occupation.” No ruling since has superseded this view.

Indeed, in an analysis requested by the Israeli Prime Minister’s office in 1967 regarding the potential legality of settlements in the then-newly occupied territories, Israeli Foreign Ministry legal adviser Theodor Meron wrote, “My conclusion is that civilian settlement in the administered territories contravenes the explicit provisions of the Fourth Geneva Convention.” This is the overwhelming consensus view of international legal opinion, and contradicts Israel’s claim that Article 49 of the Fourth Geneva Convention applies only to forcible transfers, rather than voluntary ones like those of Israeli settlers.

Continued @
http://fmep.org/blog/2016/10/settlements-vs-peace-process/

[aranthus]

4. Of course they are forcible transfers.

Is there any doubt that the settlers are being forced on the Palestinians? That is what is meant by forcibly transferred. The purpose of the rule is to protect the status of the people already living in the occupied territory. There is one way that Israel could have, and could still legitimate the settlements. Annex the entire West Bank, grant citizenship to the Palestinians, and let anyone live anywhere they want in Israel. But Israel doesn't want to do that, because they don't want to suddenly add a large population that is presumed hostile to the state.

[shira]

5. No, they're not. In WW2 forcible transfer meant Jews on trains to death camps.

There's no comparison.

In fact, there are "settlers" in other occupied territories throughout the world today and no one calls any of that forced transfer or a violation of Geneva. Those people transferring into occupied territory (from Russia, China, Morocco, Armenia, Indonesia, Vietnam....) aren't even called "settlers" in "settlements".

When there's no other precedent other than Israel, that's called discrimination.