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 Two)

[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 Part One, it was argued that the record does not allow for the conclusion that the Balfour Declaration and the Mandate for Palestine intended or envisaged the subordination of the Arab population of Palestine through Jewish immigration or the creation of a Jewish State in Palestine. This part will continue by considering issues of self-determination and uti possidetis juris.

Self-determination

In their contribution, Bell and Kontorovich make the spurious argument (p. 681, 684-686), with Judge Sebutinde in their wake (para. 79; also para. 8), that the Mandate for Palestine granted the Jewish people a right of self-determination with respect to the territory of Mandatory Palestine. Indeed, Bell and Kontorovich go one step further and make the specific claim that the Arab majority was “impliedly denied a right of self-determination” (p. 684). Leaving aside that the right of self-determination was not recognized in international law at the time of establishment of the Mandate for Palestine in 1922 (Harck, paras. 5-6; more extensively, Cassese, p. 37-100; and Shaw, p. 289-293; contrary, Bell and Kontorovich, p. 646-681, reading the right to self-determination into various mandates), their argument implies that at its inception the 11% Jewish inhabitants in Mandatory Palestine would have had the right to decide its political status against the wishes of the overwhelming Arab majority.

In her dissent, Judge Sebutinde, responding to an argument that the Arab population living in Mandatory Palestine may have had a right of self-determination, asserts (para. 79):

the founding documents of the Mandate (including General Assembly resolution 181 (1947)) are silent on the issue of the self-determination of Palestinian Arabs living within the Mandatory territory, implying that the question of their self-determination was perceived as one of “internal self-determination” that would require negotiation and mutual agreement. Be that as it may, the rights of multiple nations to self-determination on a given territory should not disturb the application of the principle of uti possidetis juris.

In footnote 93, she clarifies:

Internal self-determination refers to the right of the people within a State to govern themselves without outside interference. It is a principle that promotes democratic freedoms and autonomy for minority groups within sovereign States.

For some reason, she fails to realize that the Mandate for Palestine and Resolution 181 (II), adopted 29 November 1947, are equally silent on a right of self-determination for the Jewish people. That silence is entirely unsurprising, considering that the right of self-determination was accepted into international law well after the adoption of the Charter of the United Nations; indeed, some have argued that this occurred only in the course of the 1960s or in the 70s (e.g., Chagos, written statements UK, paras. 8.64-8.77; US, paras. 4.23-4.73). Contrary to popular belief, the establishment of a Jewish national home in Palestine cannot be interpreted as granting a right of self-determination. The right to self-determination is an entitlement of a people living on a specific territory, and for that reason could not have included the Jewish diaspora scattered throughout the world.

An argument can be made that the principle of self-determination under the Charter of the United Nations (Articles 1(2), 55-56) applied to Mandatory Palestine, considering that the Charter envisaged that territories held under mandate were to be placed under trusteeship (Articles 77, 79 and 80(2)). Yet in such a case, as for non-self-governing territories (Articles 73, 76), self-determination would have entitled all the inhabitants of a territory to have a say in the country’s future and not just a segment of its population. Thus, as the Jewish population in 1948 comprised only about one third of the population of Mandatory Palestine, any decision on its future should have been reached through an inclusive democratic process.

A fortiori, Judge Sebutinde’s remarks on ‘internal’ self-determination will surely baffle the reader. Internal self-determination was first discussed in the 1960s during the drafting of the 1966 Covenants (Cassese, p. 101-140). If one were to apply ideas of democratic governance and autonomy to Mandatory Palestine, as Judge Sebutinde appears to do through referencing the Mandate for Palestine and Resolution 181, then a Palestinian State would have been established with the Jewish people constituting a minority of about one third. If we were to apply these to the current situation, assuming the validity of the Israeli claim to all the territory of Mandatory Palestine, Israel as a party to the International Covenant and Civil and Political Rights will have to extend all political and civil rights, in particular those of Article 25 in conjunction with Article 1, to all inhabitants of the OPT. Considering current demographic realities, this would inevitably signal the end of Israel’s character as a Jewish State.

Uti Possidetis Juris

Some of the protagonists of Israeli claims use as a leitmotiv that (the principle of) uti possidetis juris implies or grants Israel sovereignty over Palestinian territory since it was the only State to emerge when the Mandate for Palestine terminated (Bell and Kontorovich, p. 636-637, 684-686, and footnote 26; Shalev). In her dissent, Judge Sebutinde follows suit and avows (para. 62, and further 72-73, 77, 81, 89): “Israel was the only State to emerge as an independent State, inheriting the whole of the disputed territory under uti possidetis juris”. In phrasing her thoughts, she does not always keep up her pretence to be speaking in the conditional (i.e., paras 62, 72 and 89). However, this line of argument is fundamentally flawed.

First, the moment at which uti possidetis juris ought to be applied is 1922-1923, when the Mandate for Palestine was concluded and entered into force, as opposed to 1948 when the State of Israel was proclaimed. In other words, uti possidetis juris is relevant to the determination of the borders of the territories to which the Ottoman Empire and its successor Turkey renounced its rights and title, and regarding which the Principal Allied Powers could fix the boundaries (Mandate for Palestine, preamble, para. 1). As such, the borders between Lebanon, Syria and Jordan on the one hand and Mandatory Palestine on the other fell to be determined on the basis of the internal administrative borders of the Ottoman Empire.

Second, as seen in Part One, what was anticipated and intended, both in 1922-1923 and in 1939, was the emergence of an independent Palestinian State. That one-State solution would clearly have attracted the application of uti possidetis juris, with independent Palestine having the borders established for Mandatory Palestine. The pro-Israeli narrative would have us believe that it makes no difference that the State to emerge instead was Israel, and that since it was the only one to emerge it could ‘inherit’ the borders of Mandatory Palestine. One might call this the first come, first serve interpretation of uti possidetis juris: whoever was to declare independence first would be entitled to claim the whole territory. But Israel’s emergence was the result of a two-State solution recommended to the mandatory Power by the General Assembly based on a detailed Partition Plan, and not grounded on a one-State solution subordinating the Arab majority to a Jewish minority.

Although the two-State solution was rejected by Arab leaders and States, and the latter initiated a war against fledgling Israel (not altogether surprising considering the inequitable land division of the Partition Plan, and the violence and ethnic cleansing occurring during the Nakba), this in of itself could not have retrogressed the two-State solution back into a one-State solution benefiting only Israel. As such, the application of uti possidetis juris could be used to determine Israel’s borders under the Partition Plan with Lebanon, Syria and Jordan, but most certainly did not give Israel a claim to the whole territory.

Uti possidetis juris would have been relevant if Mandatory Palestine had had internal administrative borders that formed the basis for the creation of a State (Israel) within its larger territory. However, at the relevant time (1945-1948) only some of the 14 districts within Palestine had a large Jewish population (Jaffa 71%, Haifa 47%, Jerusalem 38%) and the Jewish population within Palestine at large constituted about a third at that time. It beggars belief how this would provide Israel with a valid claim of title over the complete territory of Palestine. Indeed, observations by Shalev and Judge Sebutinde appear to almost suggest that uti possidetis juris grants title to territory simply because the Mandate for Palestine provided for the establishment of a Jewish national home in Palestine (quod non).

The claim that Israel ‘inherited’ the internal administrative borders of the Ottoman Empire is misconceived as well, because the successor in law to the Ottoman Empire in this respect was Mandatory Palestine and not Israel. Thus, it is perfectly possible to take the position that Gurmendi defends (here and here), namely that Israel’s existence is the result of secession from Palestine and that uti possidetis juris has no role to play. However, alternatively, one could also adhere to the view that the only internal borders that matter are those established in the Partition Plan: after all, Israel’s Declaration of Independence was adopted specifically on the strength of GA Resolution 181 (III) containing the Partition Plan, and Jewish authorities declared their independence within the frontiers specified by that plan. Thus, unlike Gurmendi’s position on secession, this would not allow Israel to “claim territory it effectively controlled at the end of its War of Independence.”

Instead, uti possidetis juris would require a return to the borders specified in the Partition Plan, and not just to those established later on as armistice lines (the Green Line) after the “violent struggle” (Shalev) between Israel and its Arab neighbours (note the claim by Peter Schuller, p. 284, that the critical date for determining title to territory in this case would be 1947). Even if many UN resolutions suggest an end to the conflict based on the Green Line and are thus predicated on a return to the pre-1967 borders, the armistice agreements themselves state that this line would be without “prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto” (Wall opinion, para. 72). Since the Green Line concerns borders established ‘in fact’, they cannot attract the application of uti possidetis juris (in the same vein, Sebutinde, para. 76).

Thus, if Palestine were to accept the pre-1967 borders as its frontier with Israel, this would constitute a major, not to say huge, concession. The more so since Israeli control over territory between the Green Line and the borders of the Partition Plan is the result of the use of force, and will therefore attract the applicability of the prohibition of the acquisition of territory by use of armed force. The Court has given that prohibition pride of place (paras. 95, 109, 158, 174-179, 247, 253-254, 261, 267, 276; see Milanovic and Brunk and Hakimi), but has failed to indicate at which point of time that prohibition attained its full vigour.

It may not be a stretch to imagine that the rule not to use force against the territorial integrity of States already existed in 1948, considering its inclusion in Article 10 of the Covenant of the League of Nations and Article 2(4) of the Charter of the United Nations. Though Arab leaders in Palestine may not have availed themselves of the opportunity to declare an independent Palestinian State in 1948, Israel’s existence is precisely predicated upon the two-State solution of the Partition Plan. If the State of Palestine had been declared in 1948, there appears little doubt that the prohibition of the acquisition of territory by force would have held sway and prevented enlargement of Israel’s territory beyond that envisaged in the Partition Plan.

Conclusion

Irrespective of whether one shares (Gurmendi) or rejects (Sebutinde, paras. 6, 62) a settler colonialist narrative of Israel’s creation, the above shows that the Arab inhabitants’ rights in Mandatory Palestine were not in law subordinated to those of the Jewish people. Consequently, Israel has no legal basis to claim title to territory over the whole of Mandatory Palestine. For that reason, too, the first come, first serve interpretation of uti possidetis juris in favour of Israeli claims is fundamentally flawed, and functions rather as a subterfuge drawing attention away from an inquiry into the question of (lack of) title. Judge Sebutinde’s dissent began by censuring the Court for failing to provide a “comprehensive, balanced, impartial, and in-depth examination” (para. 2). In the end, the failings of her own dissent should perhaps lead her to take a long, hard look in the mirror.