Israel Does Not Have a Sovereign Claim to the West Bank: A Response to IJL’s Legal Opinion

[Dr. Alonso Gurmendi Dunkelberg is a Lecturer in International Relations at King’s College London. I would like to thank Kevin Jon Heller, Vidya Kumar, Heidi Matthews, Mohsen al-Attar, and Sarah Zarmsky for their comments on previous versions]

Last week, the International Association of Jewish Lawyers released a legal opinion by Daniel Reisner, Roy Schondorf, Josh Kern, and Dov Jacobs (hereinafter the Opinion) in the context of the ICJ’s Advisory Opinion on the legal consequences on practices in the Occupied Palestinian Territories. The Opinion has mostly gone unaddressed by the international law community. And yet, it is a document filled with claims that I believe deserve wider engagement. Of course, it is beyond the scope of a single post to address every single argument therein contained (though I may write further pieces on this, given their importance). On this occasion, however, I want to address the Opinion’s central claim that “it is incorrect to assume that Israel and the Jewish people have no valid legal claim, under international law, in the West Bank and Jerusalem” because sovereignty in the area is “indeterminate” or in a state of “abeyance”.  

The argument advanced by the Opinion is that when Turkey renounced sovereign control over its Arab territories after World War I, through the Treaty of Lausanne in 1923, “[t]he Treaty parties did not grant sovereignty to another state in place of Turkey”. Instead, “the future of these territories was to be settled by the parties concerned” (p. 32). Thus, the Opinion claims, Ottoman sovereignty essentially vanished by international decree, only to be re-created at some point in the (far?) future, when unnamed “parties concerned” agree to it. Until then, Palestinian territories would remain “sovereign-less”, and thus subject to claim, in whole or in part, by the State of Israel, which would emerge some twenty-five years later, despite the fact that there exists there today another state recognised by 139 other states, reflecting the Palestinian people’s right to self-determination.  

While consistent with longstanding Israeli policy (see this decade-old video from former Israeli Deputy Minister of Foreign Affairs Dany Ayalon), this claim to sovereignty over the West Bank – especially when extended to all Jewish people, as the Opinion does – is, in my opinion, remarkably controversial, as it fundamentally misunderstands the legal regime applicable to mandatory territory after the end of World War I. Regrettably, it also engages in legal discourse more proper to best-forgotten eras, when sovereignty was premised on racial hierarchies and colonial policies, not on national self-determination and human rights.   

In this post, I address this legal claim by re-inserting the history of mandatory Palestine. By examining the provisions of the Covenant of the League of Nations I argue that the Opinion sustains unfounded Israeli claims by resorting to a colonial understanding of pre-Charter international law. A plain meaning reading of the applicable instruments and the region’s history show us instead that Israel does not have a right to claim sovereignty over Palestinian territory, because this would contradict the sovereign rights of the pre-existing juridical entity known as Palestine.

I want to make clear that I only address claims related to the State of Israel. While the Opinion extends the sovereignty claim to the Jewish people as a whole, I fail to see how the historical, religious and cultural ties of Jewish people all over the world to the West Bank, Jerusalem and Gaza – respectable and significant as they are – can be transformed into an actionable claim to legal sovereignty. Since the authors also do not sustain this claim, I will ignore it. Under international law, sovereign claims could only belong, instead, to the Israeli people – which, importantly, includes its non-Jewish population.

It is important to frame the dispute within the relevant international instruments. The opinion starts with Turkey’s renunciation of sovereignty over its Arab territories through the Treaty of Lausanne. The authors describe this as the moment when Turkey, as the successor to the Ottoman Empire, “ceded sovereignty of the areas outside its current borders” (p. 7). But this is not true. The words “cession” or “cedes” do not appear in the Treaty of Lausanne. Through Article 16, instead, Turkey renounced “all rights and titles” over these territories. This is a key difference, because it means that Ottoman sovereignty was not transferred to the victorious Allies of World War I. Instead, as it is widely known, the former Arab territories of the Ottoman Empire were incorporated into the League of Nations’ Mandate System.

This system was regulated by Article 22 of the Covenant of the League of Nations. This is an exceedingly colonial-minded document (see Anghie, Chapter 3, here) that starts off by saying that “those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world” should be placed under the supervision of a (Western) Mandatory Power. This Mandatory would be responsible for “the well-being and development of such peoples” in the form of a “sacred trust of civilisation”.

In other words, through the mandate system, the “civilised” nations of the world would assume control over those “less civilised” to guide them until they can themselves become independent. This was, in essence, the height of the standard of civilisation doctrine, which divided the world into civilised states (that had access to international law), semi-civilised states (that had access to unequal treaties and consular jurisdiction), and uncivilised states (which could be colonised).

This three-tiered system is fully replicated by the Covenant. According to Article 22, mandates were divided into three categories: A, B, and C Class Mandates, each belonging to different “stages of development”. Thus, “[c]ertain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone” (emphasis added). This status differed from Central African peoples, who were “at such a stage that the Mandatory must be responsible for the administration of the territory” and South-West African and South Pacific Islands peoples, who could “be best administered under the laws of the Mandatory as integral portions of its territory”. Class A mandates, including Palestine, therefore, were already provisionally recognised as states, which is why Iraq (1932), Lebanon (1943), Syria and Jordan (1946) were the first to declare independence.

The combination of the concept of a “sacred trust of civilisation” and Turkey’s renunciation of sovereignty created much scholarly debate as to what exactly had happened to Ottoman sovereignty after Lausanne. John Quigley has studied this scholarly debate in great detail in his excellent The Statehood of Palestine: International Law in the Middle East Conflict. Most international lawyers in the early 20^th century, much like the authors of the Opinion, simply did not know whatever happened to Ottoman sovereignty in Class A Mandates. For Henri Rolin and Hersch Lauterpacht, Ottoman sovereignty rested now with the League of Nations. For Frederick Pollock, sovereignty had passed to the mandatories. For Quincy Wright, sovereignty was shared between mandate and mandatory.

These views were controversial. As J.L. Brierly argued, sovereignty could not rest with the mandatories because “the territories are not annexed to their dominions, and the population do not take their nationality”. Instead, as Lauterpacht claimed, the relation between mandate and mandatory was one of “trusteeship”. As the ICJ noted in 1950, with regards to South West Africa, the mandate “did not involve any cession of territory or transfer of sovereignty” (p. 132).

If sovereignty did not rest with the League or the mandatories, where was it? Without a Western-style government to be graced with Ottoman sovereignty, early 20^th century scholars had no answer. This is why Judge Sir Arnold McNair frustratedly noted in his Separate Opinion in the South West Africa Case that mandate sovereignty is in a state of “abeyance”. In his words: “[w]hat matters in considering this new institution is not where sovereignty lies, but what are the rights and duties of the Mandatory in regard to the area of territory being administered by it” (p. 150).

The Opinion omits this complex scholarly debate, reducing it to Judge McNair’s Separate Opinion, as if it were the denouement of the debate, as opposed to expression of an unresolved legal question. And it should be no surprise that it was unresolved, because the solution, while simple, required the legal minds of the first half of the 20^th century to do something they were mostly not prepared to do (save for counted but important exceptions): accept that non-Western communities have a right to self-determination and popular sovereignty. Luckily, we in the 21^st century don’t have (or should not have) such hangups.

As Quigley notes, Palestine’s Class A mandate status meant that it was recognised, per Article 22 of the Covenant, as a state; just not as an independent state (p. 52). As he points out:

“Palestine had to deal with the outside world. Palestine had relations with other states that required the conclusion of treaties. Palestine’s citizens had connections with other states and required for that purpose a nationality. Palestine’s status came up as an issue in a variety of ways during the time of Britain’s administration. In all these interactions, the states of the international community dealt with Palestine as a state” (p. 53).

This is why, when the ICJ returned to the question of Namibia, at the height of decolonisation in the 1970s, Judge Fouad Ammoun had no qualms with concluding that sovereignty of Class A mandates belonged to the mandated people and that “all that is conceivable is a distinction between the possession of sovereignty and its exercise” (p. 69). The missing Ottoman sovereignty was suddenly found. All that was needed was the recognition of popular sovereignty beyond the West.

Class A mandates, therefore, were contemporaneously understood by scholars like Lauterpacht, Rolin and Brierly as a type of protectorate. Even when these authors refused to accept popular Arab sovereignty, they nascently accepted that the mandated populations had a right to sovereignty, and that this sovereignty – wherever it was located – was simply suspended in favour of the mandatory, who could exercise it before the international community.

This idea of a non-independent but sovereign state of Palestine may sound bizarre today – a time where protectorates are rare and the Westphalian nation-state has consolidated itself as the sine qua non of international relations. But these “bizarre” entities are actually quite common. As Natasha Wheatley has brilliantly showed, this was how Austria-Hungary was conceived: two states, where the external relations of one (Hungary) where exercised by another (Austria-Hungary). Hungary, therefore, was a non-independent sovereign state as well.

If Mandatory Palestine was therefore a non-independent sovereign state from its very beginning, then it was its population, composed of an Arab majority and a Jewish minority, that was subjected to the “sacred trust of civilisation”. The Opinion denies this. It argues that the object of the Mandate was to “put into effect” the 1917 Balfour Declaration “in favour of the establishment in Palestine of a national home for the Jewish people”. This is contentious. Balfour himself considered that this policy violated the self-determination of Palestinian people: “[t]he weak point of our position of course”, he said in 1919, “is that in the case of Palestine we deliberately and rightly decline to accept the principle of self-determination” (Quigley, p. 75).

Much has been written about the purported illegality of the Mandate of Palestine, given how its Balfour commitments directly contradicted Article 22 of the Covenant, denying the mandated population self-determination and betraying the Covenant’s obligation to administer the territory for the “well-being and development” of its inhabitants. In 2007, James Crawford famously considered that “despite its inconsistency with Article 22, the Mandate for Palestine was valid; at any rate it was validated by the general practice of the members of the League” (p. 430). Ralph Wilde, however, argues that this practice could not overcome the limitations of Article 20 of the Covenant, which states the League Covenant “abrogat[es] all obligations or understandings” inconsistent with its terms. In other words, the League Council “did not have the power to take action that contradicted the express provisions of the Covenant” and therefore “could not validly approve” the Balfour commitments, as they would be “ultra vires”. 

It is beyond the scope of this post to decide whether the Mandate was per se illegal or not. At this point, it is sufficient to state that the desire to create a national home for the Jewish people could not mean, under the very terms of the Covenant, policies that went against the “well-being and development” of Mandatory Palestine and its Arab population. Thus, when the Opinion states that the Mandate “did not provide that political rights vested in any other group” it is going against the express text of the Covenant’s “sacred trust of civilisation”. The Opinion disagrees, stating that “the League cemented the understanding that the entire area west of the Jordan river was assigned for the establishment of the Jewish national home as required by the Mandate” (p. 34). In other words, the Mandate existed not to enable the independence of Palestine, but the establishment of a Jewish national home in Mandatory Palestine, without regard to the rights and well-being of Palestinian Arabs.    

The Opinion’s fundamental misunderstanding of Mandatory Palestine lies in the assertion that the relevant people subjected to the sacred trust of civilisation were only its Jewish inhabitants and European Jews immigrating into it, fleeing rising antisemitism in Europe, to the exclusion of the Palestinian people. In essence, the opinion erases Palestinians and their rights under international law.

But Palestinians cannot be erased. As the Opinion admits, Mandatory Palestine survived the end of the League and the creation of the UN. The right of the original population of Mandatory Palestine, both Jewish and Arab, to have their non-independent state become independent under the terms of the Covenant continued in force. When the UK decided to end the Mandate, it entrusted the UN with solving the dispute. Through Resolution 181(II), the UN proposed to partition the non-independent state of Palestine into two different independent states, one Jewish and one Arab.

This plan was never implemented, and on 14 May 1948, once the Mandate expired, Israel declared independence from Palestine. The Opinion argues that “[t]he Declaration expressed the State’s readiness to cooperate with the UN in implementing Resolution 181(II)”, insinuating that Israel was the successor state to the Mandate or was born as a result of the UN’s plan.

Israel’s Declaration of Independence led to war with its Arab neighbours and the ultimate signing of an Armistice known as the “Green Line”. According to the Opinion, this agreement did not “prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question” and was “without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto” (p. 40). The Opinion concludes from this that the issue of sovereignty over the West Bank continues in abeyance “until a future political settlement is reached between Israel and the Palestinians” (p. 45).  

This is a very troubling argument that denies the concept of popular sovereignty. Israel’s independence did not occur in compliance with UN resolutions, but rather from an internal revolt leading to secession from Palestine. As the Jewish Agency for Palestine (the main representative of Jewish people at the time) reported to the Security Council in 1948, the State of Israel “has now been established within Palestine” (Quigley, 104). This is, for example, James Crawford’s position: “Israel was not created either pursuant to an authoritative disposition of the territory, or to a valid and subsisting authorization”. Instead, “[s]ecession would thus appear to be the appropriate mode” (p. 432-433). The Opinion does not mention the term “secession”.

Conceiving Israel as seceded Palestinian territory, however, is legally relevant. It is usually widely accepted that international law permits the secession of “self-determination units” in furtherance of their right to self-determination. In other words, peoples under a situation of colonial and/or foreign domination have a right to secede. Entities that are not, generally, do not. As Crawford notes, “[s]ince 1945 the international community has been extremely reluctant to accept unilateral secession of parts of independent States if the secession is opposed by the government of that State. In such cases the principle of territorial integrity has been a significant limitation (p. 390)”. This is, for instance, the case of Somaliland, which has purported to secede from Somalia since the 1990s, with little success. In fact, when Ethiopia recently signed a treaty with Somaliland to try and secure access to the sea through its ports, the international community reacted with general condemnation.  

Crawford continues by saying that “[s]ince 1945 no State which has been created by unilateral secession has been admitted to the United Nations against the declared wishes of the government of the predecessor State” (p. 390). In my view, this is not true. The one exception is of course Israel, which seceded against the wishes of Palestine. As Wilde argues, Israeli independence “necessarily ran contrary to the wishes of the majority Arab population in Mandatory Palestine” and therefore “was a violation of their right to provisional independence under the Covenant and also (possibly, if applicable) their right to self-determination”.

This is a unique situation, addressed by international law only in the form of hypotheticals. Take, for example, what the Canadian Supreme Court stated in the context of a proposed Quebec secession: “[a]lthough there is no right, under the Constitution or at international law, to unilateral secession (…) this does not rule out the possibility of an unconstitutional declaration of secession leading to a de facto secession. The ultimate success of such a secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of Quebec and Canada, in determining whether to grant or withhold recognition”. Clearly, the Court expected the international community to side with Canada, not Quebec. This is also why Scottish independence efforts insist on a referendum instead of a unilateral declaration of independence.

Israeli independence was therefore a matter of fact, not law. As Crawford himself admits, Resolution 181(II) “did not purport to divide Palestine into distinct self-determination units”, and therefore “Palestine should be regarded as a single self-determination unit” (p. 433). In theory, therefore, post-independence Israel should have been, at best, in the same situation as modern-day Somaliland (or at worst, Rhodesia). Instead, it was promptly recognised by most of the international community.

Given this unique status, Israel can only claim sovereign rights over the territory it effectively controlled after its secession. As James Crawford notes, in the case of Israel, “[t]he criterion for secessionary independence” is the strict standard of “stable and effective government of territory” (p. 433). In other words, Israel can only claim territory it effectively controlled at the end of its War of Independence, which is why most states agree that the Two State Solution (if it is still viable) can only occur under “pre-1967 borders”. Territories gained after 1949, when Israeli statehood was cemented as a fait accompli, will be covered by the UN Charter’s prohibition on forceful acquisition of territory and will be illegal. This is of course without prejudice to any negotiations Israel, as the seceding entity, can agree to with Palestine, the state it seceded from – not because Israel may have a right to the West Bank, but because Palestine may have a claim to areas across the Green Line.

In other words, if one accepts that Palestine is a state placed under a Class A Mandate, now independent but militarily occupied, and Israel is a secessionist movement from said state, then, even in the most charitable interpretation of the facts, Israel cannot have any sovereign claim over territory it did not control in 1949. Defending such a claim on the basis of a supposed state of abeyance for Ottoman sovereignty is an argument unfit for modern international law, as it would deny both Palestine’s right to independence under the “sacred trust of civilisation” and its right to self-determination under the UN Charter. It is instead an argument based on a colonial understanding of international law, where sovereignty is not “popular” but the prerogative of “more advanced” Western nations.