What’s the difference between Crimea and the West Bank under international law? None, according to Eugene Kontorovich, professor of law at Northwestern University School of Law, specializing in international and constitutional law.
Crimea, regardless of Russia’ illegal annexation, belongs legally to Ukraine, says Kontorovich (“Crimea, International Law, and the West Bank; The same rules apply,” Commentary, June 2014). And the West Bank, despite Jordan’s occupation between 1948 and 1967 and the Palestinian Arabs’ attempt to gain what Jordan had lost, is in Israel’s legal possession. It is not “occupied Palestinian territory” and Israel’s presence is not an “illegal occupation.”
That’s because “when new countries emerge from old ones or from colonial empires, the last official international borders constitute the new boundary lines,” writes Kontorovich. “This doctrine is known as uti possidetis iuris (meaning ‘you possess under law’).”
According to the professor, uti possidetis iuris “has been applied to the borders of new states around the world and recognized as a basic principle of international law by the International Court of Justice. Even when several states emerge from one, as Russia and Ukraine did from the U.S.S.R., the prior internal administrative divisions become the new international frontiers.”
So Crimea, even if taken from the Russian Republic and given to the Ukrainian one by Soviet leader Nikita Khrushchev in 1954, today legally belongs to Crimea, Russian subversion and unlawful election notwithstanding.
A Jewish State in 1922, not 1948
As for the West Bank (Judea and Samaria), “the disintegration of the Ottoman Empire in World War I led to the division of its territories in the Middle East.” Turkey, core of and successor to the Ottomans, “surrendered all Turkish sovereignty over Ottoman territory in the rest of the Middle East.” This included what would become—and may no longer be—Iraq and Syria, as well as Lebanon, Jordan and Israel.
But “instead of imposing their own sovereignty on the parts of the Ottoman Empire they conquered, Britain and France allowed the newly created League of Nations to transform these territories into ‘mandates.’” The mandatory lands were to become nation-states of their own under British and French guidance.
“In 1922, the League of Nations established a new ‘country’ to serve as the Jewish national home. This was the Mandate for Palestine. Under certain provisions of the Mandate, Palestine was partitioned at the Jordan River to create the country of Transjordan (now called Jordan) on its eastern bank.” It should be noted, though this is not part of Kontorovich’s legal analysis, that as a result there long has been an Arab state in the original Palestine Mandate lands—in fact occupying more than three-quarters of them—with a Palestinian Arab majority.
After the creation of Transjordan, “international frontiers of Mandatory Palestine ran from the river to the sea. The League of Nations Mandate for Palestine provides the legal basis not only for Israel’s borders, but for those of Jordan as well, and indeed for Jordan’s entire existence.”
This means that Israel, under uti possidetis iuris, “inherits the Mandatory borders.” The only question, Kontorovich says, “is whether anything has happened since the 1920s that legally modified those frontiers.” The answer, he says, is no.
The U.N. General Assembly’s 1947 partition plan, Resolution 181, did not create a Jewish state west of the Jordan River. The Mandate itself already had, though Israel’s 1948 Declaration of Independence and successful War of Independence brought the Mandate into force on part of the land.
Partition plan didn’t change international law
The partition plan’s suggested division of the territory west of the Jordan into Jewish and Arab statelets with an “internationalized” Jerusalem “did nothing to alter the Mandatory borders because the GA [General Assembly] is not a world legislature: It has no legal power to make any binding rules, let alone redraw the borders of nations,” Kontorovich writes. In any case, the Arab sides rejected partition and went to war to prevent it.
With Israel’s against-the-odds victory in 1948, a Jewish state was established in Palestine. “Under the uti possidetis iuris principle, the borders of the new state were those of Mandatory Palestine.” The occupation of the Gaza Strip by Egypt and Judea and Samaria by Jordan from 1948 to 1967 (and renamed the West Bank) “did no more to change its borders than has Russia’s equally unprovoked aggression against Ukraine today.”
Likewise, the 1949 Israeli-Jordanian and 1950 Israeli-Egyptian armistice lines did not alter the fact that the earlier Mandatory boundaries were “the only international borders for Palestine. The only dispute was who would ultimately control it,” Kontorovich says. The armistice agreements themselves made this clear, as in the Israeli-Jordanian pact, which noted that it “shall in no way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question ….”
So talk about Israel’s “1967 borders” or “pre-’67 borders,” including by U.N. Secretary-General Ban Ki-moon and U.S. President Barak Obama and no matter how well intentioned, is legally mistaken. Israel and only Israel currently can claim an internationally recognized b
order on its eastern frontier, and that is the 1922 border running along the Jordan River.
Importantly, this also applies to the legality of Jewish settlements built in the West Bank after Israel took possession in the 1967 Six-Day War, although Kontorovich does not discuss this point. The League of Nations Palestine Mandate, adopted later by the United Nations, calls for “close Jewish settlement on the land” west of the Jordan River in Article 6. The U.N. Charter, Chapter XII, Article 80, upholds the Mandate’s provisions, including Article 6.
Resolution 242 upheld Israel’s standing
U.N. Security Council Resolution 242, adopted shortly after the ’67 War, likewise does not contradict Israel’s standing under uti possidetis iuris. Says Kontorovich, “the Security Council does not have the power to redraw preexisting national borders. … Resolution 242 famously calls for ‘withdrawal of Israeli armed forces from territories occupied in the recent conflict.’ This language was deliberately chosen by its drafters to reject demands that Israel withdraw from all territories it occupied, and instead leaves the scale of the withdrawal up to future diplomacy.”
Kontorovich compares Israeli possession of the West Bank with more than a dozen other U.N. resolutions demanding military pull-outs, four of which are prior to 1967. All others explicitly require complete withdrawals. “The language of 242 is unique in the Security Council’s history, but consistent with its own drafting history and the document’s intentions.” And since the territory Israel seized from Egypt and Jordan was not legally theirs, Israel is not in illegal occupation of another country’s sovereign territory.
“To be sure, the professor says, “international sentiment has turned sharply against Israel’s control over much of this territory. But international law is not a popularity contest; if it were, Israel would have long ago been voted off the island.”
Israel’s legal standing in the West Bank does not undercut “the common arguments for the creation of Palestinian state,” Kontorovich says. “Those arguments are rooted in diplomatic and demographic considerations. But even if one accepts the idea that the Mandate gave Israel borders too large for the Jewish population, it does not therefore follow that the pan-Arab aggression of 1948-49 established presumptive or default borders.” Those can be drawn only by agreement between Israel and the Palestinian Arabs.
Even then, Israel would have to be careful, Kontorovich writes. “Russia’s dismemberment of Ukraine offers a frightening scenario of how a state of Palestine could continue effective activities against Israel in the wake of a peace treaty.” Even though Israel, like Ukraine, has international law on its side, “the Ukrainian crisis also shows that when it comes to action, the international community will be driven primarily by the exigencies and conveniences of the moment, not by considerations of legality or past promises.”
International law? Insist, but don’t depend on it. “In the end, as has been the case since 1948,” concludes Kontorovich, “Israel will have to rely on itself.”