Back to the Drawing Board of the Partition Plan: Vice-President Sebutinde’s Erroneous Account of Palestinian and Israeli Claims of Title to the Territory of Mandatory Palestine (Part One)

[André de Hoogh is Associate Professor in International Law, University of Groningen; his research covers a wide range of topics in public international law. He is a member of the Advisory Committee on Public International Law, a statutory body which provides advice to the Dutch government and parliament; this contribution has been written in his personal capacity, and does not reflect in any way the views of the Advisory Committee.]

In its advisory opinion on the Occupied Palestinian Territory (OPT), the International Court of Justice (the Court) held that the occupation of this territory is unlawful and that Israel must withdraw from it as rapidly as possible (para. 285, s. (3)-(4)). Reading the advisory opinion (para. 78) and the declarations and separate opinions reveals that 14 out of 15 judges accept that the Gaza strip and the Westbank, including East Jerusalem, constitute Palestinian territory. Unfortunately, the Court’s rejection of Israeli claims to Palestinian territory is implicit only, and its silence paves the way for pushing the Israeli narrative of a valid title to the whole territory of Mandatory Palestine.

The odd judge out is Vice-President Sebutinde, who in her dissenting opinion opines (para. 1; see also paras. 67, 69):

the Court has not received arguments or evidence on the territorial scope (i.e. borders) of the State of Israel as on the eve of independence; nor of Israel’s competing territorial claims in relation to the disputed territory. These are issues that must first be addressed before the legal consequences of the alleged occupation of territory by Israel, or the territorial scope of Palestinian self-determination, can be determined.

She then complains (para. 2; see also para. 42) that the Court has conducted:

a one-sided, ‘forensic audit’ of Israel’s compliance or non-compliance with international law, that does not reflect a comprehensive, balanced, impartial and in-depth examination of the pertinent factual and legal questions involved.

Rather than keeping her silence on the issue of “competing territorial claims” of Israel and Palestine, regarding which after all – her words – “the Court has not received arguments or evidence”, she portrays the entirety of the territory of Mandatory Palestine (i.e., Israel and the OPT) as coming under Israeli sovereignty.

On this matter, Judge Sebutinde cannot be allowed to have the last word. To counter this pro-Israeli narrative, this post will in Part One address the Balfour Declaration and Mandate for Palestine, and questions of sovereignty and title to territory. Part Two of the contribution will then continue the discussion with  argument about self-determination, and uti possidetis juris.

The Balfour Declaration and Mandate for Palestine: Setting the Record Straight

An important element of Judge Sebutinde’s reasoning revolves around her claim (para. 79) that the Mandate for Palestine (1922), incorporating the Balfour Declaration (1917) in its preamble (para. 2), was primarily set up to reconstitute a Jewish homeland in Palestine. On that basis, she further claims (para. 79) that the Jewish people were the main beneficiaries of rights related to Palestinian territory, and that this entailed the right “to settle, self-determine and live peacefully in the Mandate territory”. In this she echoes Avrahem Russel Shalev, who claims that the Mandate for Palestine had as its primary object the establishment of a national home for the Jewish people in Palestine.

This, however, is very much doubtful, since the preamble of the Mandate for Palestine opens (para. 1) by saying that the administration of the territory of Palestine is entrusted to a mandatory (Great Britain) “for the purpose of giving effect to the provisions of Article 22 of the Covenant of the League of Nations”. Article 22 of the Covenant of the League of Nations specifically indicated that the well-being and development of peoples not yet able to stand by themselves formed a sacred trust of civilization. At that point in time (1922), the ‘people’ of Palestine in terms of population comprised of up to 11% Jewish inhabitants (an even smaller percentage if one were to include Transjordan, which was subsequently separated from Palestine pursuant to Article 25 of the Mandate for Palestine).

Shalev then claims that the purpose of the Mandate for Palestine was to establish a future Jewish State. In her dissenting opinion, Judge Sebutinde refers to the proposal of a two-State solution by the Peel Commission (i.e., the Palestine Royal Commission) in 1937, and attempts to squarely lay blame for its rejection with the Arab population (paras. 12-14; and recounting later rejections of that solution in paras. 15-20). However, while not incorrect per se, this is a selective account of the historical record, since she fails to make any reference to the official British position. While initially accepting the recommendations of the Peel Commission, the subsequent Woodhead Commission (i.e., the Palestine Partition Commission) was then much divided on partition and the British government in 1938 rejected the two-State solution as impractical (para. 4). Moreover, the idea that Palestine was to become a Jewish State was equally rejected, as shown by two UK white papers adopted in 1922 and 1939. Such papers are especially important because they form the official basis for the UK’s legal and policy position, in this case as mandatory responsible for the administration of Palestine.

In the White Paper of 1922, on the Balfour Declaration, the British government noted:

Unauthorized statements have been made that the purpose in view is to create a wholly Jewish Palestine. Phrases have been used such as that Palestine is to become as ‘Jewish as England is English.’ His Majesty’s government regard any such expectation as impractical and have no such aim in view. Nor have they at any time contemplated, as appears to be feared by the Arab deegation [sic], the disappearance or the subordination of the Arabic population, language or culture in Palestine. They would draw attention to the fact that the terms of the Declaration referred to do not contemplate that Palestine as a whole should be converted into a Jewish National Home, but that such a Home should be founded ‘in Palestine.’

Noteworthy, in this respect, is that the White Paper of 1922 was adopted in June and hence antedated the conclusion of the Mandate for Palestine in July of that same year.

This interpretation is further borne out by the UK White Paper of 1939, adopted near the end of the Arab uprising in Palestine of 1936-1939 (The Great Revolt), and following the reports of both the Peel and Woodhead Commissions, which explained that a policy:

to seek to expand the Jewish National Home indefinitely by immigration, against the strongly expressed will of the Arab people of the country … seems to his Majesty’s Government to be contrary to the whole spirit of Article 22 of the Covenant of the League of Nations, as well as to their specific obligations to the Arabs in the Palestine Mandate.

It further observed that:

the framers of the Mandate in which the Balfour Declaration was embodied could not have intended that Palestine be converted into a Jewish State against the will of the Arab population of the country. … His Majesty’s Government now declares unequivocally that it is not part of their policy that Palestine should become a Jewish State. They would regard it as contrary to their obligations to the Arabs under the Mandate.

As much follows from a plain reading of the Mandate for Palestine itself, which specified that the establishment of a Jewish national home in Palestine ought not prejudice the civil and religious rights of non-Jewish communities (preamble, para. 2); that facilitation of Jewish immigration was to be done under “suitable conditions” and without prejudice to the rights and position of other sections of the population (Article 6); and that it envisaged the adoption of a nationality law that would facilitate the acquisition of Palestinian citizenship by Jews taking up permanent residence (Article 7).

The 1939 White Paper continued by setting out the objective of establishing “an independent Palestinian State” within a period of 10 years; Jewish immigration was to be restricted to 75,000 for the next five years and subject to Arab consent after that. If anything then, the one-State solution envisaged by the British government would have resulted in a Palestinian State, with the Jewish indigenous community and immigrants taking up permanent residence forming part of a predominantly larger, Arab population.

Sovereignty and Title to Territory

The account given above clearly shows that the Mandate for Palestine did not envisage the creation of a Jewish State (with)in Palestine. Some have argued the contrary, specifically Malcolm Shaw, who claimed (p. 303):

the Jewish nexus was in the realm of putative sovereignty: that is, it marked the potentiality of moving from ‘national home’ to statehood. This was inchoate or embryonic, a seed rather than a full grown plant. Nevertheless, it placed the link between the Jews and the territory upon the track of territorial title one way or the other.

An underlying basis for this argument, put forward by the International Association of Jewish Lawyers and Jurists in a submission to the ICJ, appears to be that sovereignty over the former Ottoman territory of Palestine had been in a state of abeyance (para. 21). This resulted from the Treaty of Lausanne (Article 16), which saw a renunciation of the rights and title of the Ottoman Empire’s territories, other than Turkey, but without effecting their transfer to another State or to the League. Judge Sebutinde repeats this talking point of the Association (para. 69) verbatim, although incorrectly stating alongside the Association that Turkey had ceded its sovereignty; as Shaw notes (p. 294), sovereignty did not pass to the mandatory Power. The terminology used harks back to an observation by Judge McNair (p. 150) to the effect that “[s]overeignty over a Mandated Territory is in abeyance; if and when the inhabitants of the Territory obtain recognition as an independent State… sovereignty will revive and rest in the new State.”

So how is it then, when sovereignty was in abeyance, that apparently Israel could lay claim to sovereignty and title to the whole of the territory of Mandatory Palestine? Abraham Bell and Eugene Kontorovich (p. 637, 681-682), as well as Shalev, argue that because Israel was the only State to emerge from the dissolution of Mandatory Palestine this meant that “[t]here was therefore no rival state that could lay claim to using internal Palestinian district lines as the basis of its borders.” Again, Judge Sebutinde simply embraces this line of argument (paras. 62, 72), and all four link this to the principle of uti possidetis juris (see Part Two).

The Declaration of the Establishment of the State of Israel (adopted 14 May 1948; hereinafter Declaration of Independence), referencing the termination of the mandate over Eretz Israel (encompassing Mandatory Palestine), does indeed appear to lay claim over the whole territory, invoking natural and historic right and the strength of Resolution 181 (II) of the UN General Assembly (adopted 29 November 1947, including the Partition Plan). But that particular claim and its reliance on the Partition Plan are in effect mutually exclusive, since the latter detailed specific borders for the Jewish State to be instituted within only part of the territory of Mandatory Palestine. Indeed, this is reinforced by the letter of the Provisional Government of Israel of 15 May 1948 expressing the hope for US recognition of Israel, specifying that it had been proclaimed “an independent republic within the frontiers approved by the General Assembly of the United Nations in its Resolution of November 29, 1947.” (Robbie Sabel claims, p. 99,  that this letter was sent by an agent without consultation.) This is further corroborated by General Assembly Resolution 273 (III), which admitted Israel to the United Nations. Its text recalled the resolution containing the Partition Plan and Israeli declarations with respect to its implementation. Thus, drawing upon the words of Judge McNair, recognition was not granted to Israel as a new State with the territory of Mandatory Palestine, but as a State with the borders specified in the Partition Plan.

This could only have been different if Israel had been in a position to invoke a valid title to territory over the whole of Mandatory Palestine. For a State, title to territory could result from the recognized modes for the acquisition of territory, or from the exercise of the right of self-determination by a people entitled to choose independence (see Part Two). Traditionally, the acquisition of title to territory (Kohen and Hébié, para. 7) could be based on conquest, discovery, occupation of terra nullius, prescription in relation to a previous possessor, cession, and accretion. Bell and Kontorovich for the most part do not argue that Israel would have obtained its title along these lines, but instead that Israel could not have lost title after it declared independence (p. 689-690).

Both the Israeli Declaration of Independence and Judge Sebutinde (paras. 5-9) appear to suggest that the historical connection of the Jewish people to the land of Israel, and the age-old presence of Jewish inhabitants in the region, would somehow give Israel title to territory over their ancestral homelands (Association, p. 28-29, argues that Israel has strong legal claims independently from historical, religious and cultural ties, but fails to substantiate that claim). But title to territory is by and large not based on a claim of sovereignty as such, but on the actual display of (governmental) authority with the intent to act as sovereign (Kohen and Hébié, paras. 24-34).

Authority over the territory of Palestine was for a long period of time exercised by many different nations (Sebutinde, para. 8), and by the Ottoman Empire for the four centuries before the mandate was established. Moreover, the presence of a population on a certain territory has no bearing per se for determining where title lies (Kohen and Hébié, paras. 29-30), and Judge Sebutinde’s claim of Jewish indigeneity and physical presence (paras. 5 and 7-8) – up to 11% in 1922 – is therefore neither here nor there when it comes to a finding of title.

See Part Two for argument on self-determination and uti possidetis juris.