THE LEGAL STATUS OF THE TERRITORIES LIBERATED BY ISRAEL - Julius Stone PHD

THE LEGAL STATUS OF THE TERRITORIES LIBERATED BY ISRAEL

Julius Stone examines the principles governing legal title to the Territories known as the Gaza Strip and the West Bank, which are part of the territory which came into Israel s possession during the war of 1967. In his analysis Stone draws upon the writings of Professor Stephen Schwebel, the former Chief Judge of the International Court of Justice.

Since Stone wrote, the legal status of the Territories has been affected by the agreements implementing the Oslo Accords of 1993, which provide for a sharing of governmental powers in the Territories with the Palestinian Authority, with specified security powers reserved to Israel (See Part 5). However those agreements are on an interim basis, pending and subject to the negotiation of a permanent status agreement and they leave the underlying legal title intact.

Also the peace treaty of 1994 now sets the international boundary between Israel and Jordan at the center of the Jordan River, without prejudice to the status of [the] Territories.

The Self-Defense Principle

The basic precept of international law concerning the rights of a state victim of aggression, which has lawfully occupied the attacking state s territory in the course of self-defense, is clear. And it is still international law after the Charter, which gave to the UN General Assembly no power to amend this law? This precept is that a lawful occupant such as Israel is entitled to remain in control of the  territory  involved  pending  negotiation  of  a  treaty  of  peace.

Both Resolution 242 (1967) and Resolution 338 (1973), adopted by the Security Council after respective wars of those years, expressed this requirement for settlement by negotiations between the parties, the latter in those words.

Conversely both the Security Council and the General Assembly in 1967 resisted heavy Soviet and Arab pressures demanding automatic Israeli withdrawal to the pre-1967 frontiers. Through the decade 1967-1977, Egypt and her Arab allies compounded the illegality of their continued hostilities by proclaiming the slogan  No recognition! No Peace! No negotiation!  Thus blocking the regular process of international law for post-war pacification and settlement Israel's territorial rights after 1967 are best seen by contrasting them with Jordan's lack of such rights in Jerusalem and the West Bank after the Arab invasion of Palestine in 1948.  The presence of Jordan in Jerusalem and elsewhere in cis-Jordan from 1948 to 1967 was only by virtue of her illegal entry in 1948? Under the international law principle ex iniuria non oritur ius she acquired no legal title there. Egypt itself denied Jordanian sovereignty; and Egypt never tried to claim Gaza as Egyptian territory.

By contrast, Israel's presence in all these areas pending negotiation of new borders are entirely lawful, since Israel entered them lawfully in self-defense.

International law forbids acquisition by unlawful force, but not where, as in the case of Israel's self-defense in 1967, the entry on the territory was lawful. It does not so forbid it, in particular, when the force is used to stop an aggressor, for the effect of such prohibition would be to guarantee to all potential aggressors that, even if their aggression failed, all territory lost in the attempt would be automatically returned to them. Such a rule would be absurd to the point of lunacy. There is no such rule International law, therefore, gives a triple underpinning to Israel's claim that she is under no obligation to hand back automatically the West Bank and Gaza to Jordan or anyone else. In the first place, these lands never legally belonged to Jordan. Second, even if they had, Israel's own present control is lawful, and she is entitled to negotiate the extent and the terms of her withdrawal. Third, international law would not in such circumstances require the automatic handing back of territory even to an aggressor who was the former sovereign. It requires the extent and conditions of the handing back to be negotiated between the parties.

Competing Claims to Title

Because the Jordanian entry onto the West Bank and East Jerusalem in 1948 was an unlawful invasion and an aggression, the principle ex iniuria non oritur ius beclouded even Jordan's limited status of belligerent occupant. Her purported annexation was invalid on that account, as well as because it violated the freezing provisions of the Armistice Agreement. Conversely Israel's standing in East Jerusalem after her lawful entry in the course of self-defense certainly displaced Jordan's unlawful possession.

Once this position is reached, and it is remembered that neither Jordan nor any other state is a sovereign reversioner entitled to re-enter the West Bank, the legal standing of Israel takes on new aspects. She becomes then a state in lawful control of territory in respect of which no other state can show better (or, indeed, any) legal title. The general principles of international law applicable to such a situation, moreover, are well-established. The International Court of Justice, when called upon to adjudicate in territorial disputes, for instance in the Minquires and Echrehos case between the United Kingdom and France, proceeded   to  appraise  the  relative  strength  of  the  opposing  claims  to sovereignty. Since title to territory is thus based on a claim not of absolute but only of relative validity, the result seems decisive in East Jerusalem. No other state having a legal claim even equal to that of Israel under the unconditional cease-fire agreement of 1967 and the rule of uti possidetis, this relative superiority of title would seem to  assimilate Israel's possession under international law to an absolute title, valid erga omnes...

The most succinct statement of this position is in Professor Stephen Schwebel’s What Weight to Conquest?  Published in 1970, before he entered U.S. government service. He points out that the answer to that question in terms of international law, after the Charter s prohibitions of the use of force, makes necessary a vital distinction between aggressive conquest and defensive conquest, between the taking of territory legally held and the taking of territory illegally held:

Those distinctions may be summarized as follows:

a) A state acting in lawful exercise of its right of self-defense may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defense.

b) As a condition of its withdrawal from such territory, that state may require the institution of security measures reasonably designed to ensure that that territory shall not again be used to mount a threat or use force against it of such a nature as to justify exercise of self-defense.

c) Where the prior holder of the territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.

Note:

The issues discussed in this section have continuing relevance in the context of current assertions that Israeli presence in the Territories constitutes an illegal occupation.  Such assertions ignore both Israel’s underlying right to lawful possession of the Territories as outlined by Stone and the specific rights reserved to Israel in the interim power-sharing agreements under the Oslo Accords, as extracted in Part 5.

As Stone remarks a state victim of aggression is entitled to protect itself by retaining lawful possession of territory taken in self-defense from a defeated aggressor. The dismemberment of Germany after two world wars, as a protection against any repeated aggression is a classic example of the operation of the customary law.

The legal principle is reflected in Article 75 of the Vienna Convention on the Law of  Treaties, which declares that the provisions of the Convention governing the validity of treaties are without prejudice to any obligation which may arise for an aggressor State in consequence of measures taken by the victim of the aggression in lawful self-defense.

In the case of the Territories the relevant historical background   includes the Arab invasion of Israel in 1948, continuing armed incursions by irregular forces after the armistice agreements of 1949, and the naval blockade and the massing of the armed forces of Egypt, Jordan, Syria and Iraq in preparation for a further invasion in 1967.

As President Gamal Abdel Nasser declared to the Egyptian parliament at the time:

The problem before the Arab countries is not whether the port of Eilat should be blockaded or how to blockade it   but how totally to exterminate the State of Israel for all time.

It is thus the historical context itself which makes it inconceivable that the Israeli presence in the Territories could be characterized as illegal. If this were so, then Israel would be bound to withdraw unilaterally from the whole of the Territories, and without any peace agreement, security guarantees or border adjustments. As Stone points out, this would then negate the whole basis for the negotiation of a peaceful settlement with secure and recognized boundaries as contemplated by UNSC Resolution 242.

Part 2

SOVEREIGNTY IN JERUSALEM

The Partition Plan of 1947 envisaged an international Jerusalem, separated from both Israel and the then proposed Palestinian State? During the 1948 war, East Jerusalem (which includes the holy places of Judaism, Christianity and Islam in the old city) came into Jordanian hands; and Jordan claimed sovereignty.

In 1967, after Jordan launched an attack on West Jerusalem, the whole of Jerusalem came under Israeli rule; and Israel claimed sovereignty over a united Jerusalem.

Professor Stone examines the legal principles which apply, and considers the analysis of Professor Elihu Lauterpacht, the distinguished editor of the authoritative

Oppenheim’s International Law.

The agreements implementing the Oslo Accords provide that Jerusalem is one of the issues to be considered in the permanent status negotiations, and failure to reach agreement on the sharing of administration in Jerusalem was one of the reasons for the failure to conclude a permanent status agreement at Camp David II and at Taba in 2000. In the absence of such agreement, however, sovereignty over Jerusalem under international law remains as described by Stone.

The Effect of the Partition Plan

Elihu Lauterpacht concludes, correctly that the 1947 partition resolution had no legislative character to vest territorial rights in either Jews or Arabs. Any binding force of it would have had to arise from the principle pacta sunt servanda, that is, from the agreement of the parties concerned to the proposed plan. Such an agreement, however, was frustrated ab initio by the Arab rejection, a rejection underlined by armed invasion of Palestine by the forces of Egypt, Iraq, Lebanon, Syria and Saudi Arabia timed for the British withdrawal on May 14, 1948, and aimed at destroying Israel and at ending even the merely hortatory value of the plan

The State of Israel is thus not legally derived from the partition plan, but rests (as do most other states in the world) on assertion of independence by its people and government, on the vindication of that independence by arms against assault by other states, and on the establishment of orderly government within territory under its stable control. At most, as Israel's Declaration of Independence expressed it, the General Assembly resolution was a recognition of the natural and historic right of the Jewish people in Palestine. The immediate recognition of Israel by the United States and other states was in no way predicated on its creation by the partition resolution, nor  was  its  admission  in 1949  to  membership  in  the  United  Nations

As a mere resolution of the General Assembly, Resolution 181(11) lacked binding force ab initio. It would have acquired the force under the principle pacta sunt servanda if the parties at variance had accepted it. While the state of Israel did for her part express willingness to accept it, the other states concerned both rejected it and took up arms unlawfully against it. The Partition Resolution thus never became operative either in law or in fact, either as to the proposed Jerusalem corpus separatum or other territorial dispositions in Palestine.

The Corpus Separatum Concept

We venture to agree with the results of the careful examination of the corpus separatum proposal by E. Lauterpacht in his monograph Jerusalem and the Holy Places: 

(1) During the critical period of the changeover of power in Palestine from British to Israeli and Arab hands, the UN did nothing effectively to implement the idea of the internationalization of Jerusalem.

(2) In the five years 1948-1952 inclusive, the UN sought to develop the concept as a theoretical exercise in the face of a gradual realization that it was acceptable neither to Israel nor to Jordan and could never be enforced. Eventually the idea was allowed quietly to drop.

(3) In the meantime, both Israel and Jordan demonstrated that each was capable of ensuring the security of the Holy Places and maintaining access to and free worship at them - with the exception, on the part of Jordan, that the Jews were not allowed access to Jewish Holy places in the area of Jordanian control.

(4) The UN by its concern with the idea of territorial internationalization, as demonstrated from 1952 to the present date (1968) effectively acquiesced in the demise of the concept. The event of 1967 and 1968 has not led to its revival.

(5) Nonetheless there began to emerge, as long ago as 1950, the idea of functional internationalization of the Holy Places in contradistinction to the territorial internationalization of Jerusalem. This means that there should be an element of international government of the City, but only a measure of international interest in and concern with the Holy Places. This idea has been propounded by Israel and has been said to be acceptable to her. Jordan has not subscribed to it.

Even if no notion of a corpus separatum had ever floated on the international seas, serious questions about the legal status of Jerusalem would have arisen after the 1967 War. Did it have the status of territory that came under belligerent occupation in the

course of active hostilities, for which international law prescribes a detailed regime of powers granted to the occupying power or withheld it from in the interest of the ousted reversionary sovereign? Or was this status qualified in Israel's favor by virtue of the fact that the ousted power, in this case, Jordan, itself had occupied the city in the course of an unlawful aggression and therefore could not, under principle of ex iniuria non oritur ius, be regarded as an ousted reversioner? Or was Jerusalem, as we will see that a distinguished authority thought at the time, in the legal status of res nullius modo juridico? That is, was it a territory to which by reason of the copies of international instruments, and their lacunae, together with the above vice in the Jordanian title, no other state than Israel could have sovereign title? The consequence of this could be to make the legal status of Jerusalem that of subjection to Israel sovereignty.

Acquisition of Sovereignty

This analysis, based on the sovereignty vacuum, affords a common legal frame for the legal positions of both West and East Jerusalem after both the 1948-49 and the 1967 wars. In 1967, Israel's entry into Jerusalem was by way lawful self-defense, confirmed in the Security Council and General Assembly by the defeat of Soviet and Arab-sponsored resolutions demanding her withdrawal

Lauterpacht has offered a cogent legal analysis leading to the conclusion that sovereignty over Jerusalem has already vested in Israel. His view is that when the partition proposals were immediately rejected and aborted by Arab armed aggression, those proposals could not, both because of their inherent nature and because of the terms in which they were framed, operate as an effective legal re-disposition of the sovereign title. They might (he thinks) have been transformed by agreement of the parties concerned into a consensual root of title, but this never happened. And he points out that the idea that some kind of title remained in the United Nations is quite at odds, both with the absence of any evidence of vesting, and with complete United Nations silence on this aspect of the matter from 1950 to 1967?

In these circumstances, that writer is led to the view that there was, following the British withdrawal and the abortion of the partition proposals, a lapse or vacancy or vacuum of sovereignty.  In this situation of sovereignty vacuum, he thinks, sovereignty could be forthwith acquired by any state that was in a position to assert effective and stable control without resort to unlawful means. On the merely political and commonsense level, there is also ground for greater tolerance towards Israel's position, not only because of the historic centrality of Jerusalem to Judaism for 3,000 years, but also because in modern times Jews have always exceeded Arabs in Jerusalem. In 1844 there were 7,000 Jews to 5,000 Muslims; in 1910, 47,000 Jews to 9,800 Muslims; in 1931, 51,222 Jews to 19,894 Muslims; in 1948, 100,000 Jews to 40,000 Muslims, and in 1967 200,000 Jews to 54,902 Muslims.