Monday, March 14, 2016

New research paper on Israel’s borders and international law - Eugene Kontorovich

by Eugene Kontorovich

Hat tip: Dr. Carolyn Tal

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.

Professor Abraham Bell and I have a new research paper, “Palestine, Uti Possidetis Juris and the Borders of Israel.” It is now available on SSRN and forthcoming in the Arizona Law Review. It seeks to answer fundamental questions about the extent of Israel’s borders by examining the standard international-law rule used to determine the borders of newly created countries — but one that has for some reason been neglected in regard to Israel.

Here is the 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 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).

What makes the uti possidetis doctrine so powerful its generality: As a rule of customary international law, it is applied to all cases of state formation, from decolonization in Africa to the collapse of the Soviet Union to the separation of Czechoslovakia. Moreover, the doctrine trumps claims of self-determination, and any other kind of equitable objection to the former administrative boundaries.

It also turns out that the same kind of objections made to the boundaries of the Palestine Mandate were made in regard to many other mandatory territories, yet in all cases the subsequently created countries received the full mandatory borders, despite strong contemporaneous doubts about their wisdom, stability and equity.

From the Introduction:

The Article explores the history and development of uti possidetisjuris to see how it has been applied to previous disputes about states emerging from Mandatory territories, which are neither “classic decolonizations” nor the breakup of composite states. . . . We find that that uti possidetis juris has been fully applied to the numerous border disputes regarding former Mandatory territories, notwithstanding Mandates’ odd juridical status — they were neither full-pledged state, nor a mere colonial possession, nor an administrative unit of the Mandatory power. We find that bitter controversies about the borders of the Palestine Mandate are far from particular to Palestine. Similar controversies emerged regarding the borders of many other Mandates, because they often took little account of national self-determination interests, and were in several instances illegally modified by the Mandatory. Numerous Mandates were plagued by international doubts about their wisdom of their borders and serious discussions of revision. Yet in all cases, the borders of the Mandate as they stood at independence became the borders of the new successor state.

* * *

At its expiration in 1948, the borders of the Mandate of Palestine, both internal and external, were relatively well demarcated and uncontroversial. Thus uti possidetis juris could be a powerful tool for resolving extant disputes about the borders of Israel. To be sure, Israel appears to be interested in drawing consensual new boundaries that differ from the borders established by uti possidetis juris. Uti possidetis juris does not preclude later modifications of borders. Application of uti possidetis juris, as is customary in other boundary disputes, would nevertheless provide a clear baseline for future negotiated solutions.

Perhaps one of the most important, and salutary, effects of applying this otherwise universal rule is that it turns questions about the “nature” of the state — “Jewish,” “Palestinian” or otherwise — into more standard international discussions of the borders of whatever kind of state it happens to be. Thus the borders of Lebanon are the borders of the French Mandate over Lebanon, whether that state is largely Christian, as originally intended, or Shiite or Sunni. The borders of Jordan are the mandatory borders whether the state is Hashemite, Palestinian or otherwise.

International law has well-developed rules to determine the borders of new states. This article shows that they apply in full to former mandatory territories, and Israel in particular.

Eugene Kontorovich's research spans the fields of constitutional law, international law, and law and economics. He has authored a series of papers that extend "transaction cost" analysis from private law to constitutional law. Prof. Kontorovich is also a leading expert on maritime piracy,  universal jurisdiction and international criminal law. His scholarship has been relied on in important foreign relations cases in the federal courts, and historic piracy cases in the U.S. and abroad. He is working on a book, Justice at Sea: Piracy and the Limits of International Criminal Law, under contract with Harvard University Press.


Copyright - Original materials copyright (c) by the authors.

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