Eugene Kontorovich's talk at NYU on Israel's borders
Kontrovich started off by saying what international law is not. It is not UN General Assembly resolutions. It is not advisory opinions from the ICJ (which, he pointed out, was answering a loaded question that assumed illegality when it gave its opinion on the security fence.)
The first legally important act after the fall of the Ottoman Empire that is relevant to Israel's borders is the League of Nations Mandate for Palestine, which noted the "historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country." After the British partitioned Western Palestine from Trans-Jordan, the implication is that all of the remaining Palestine would be the area of the Jewish nation.
If the Arabs had accepted the 1947 Partition Plan, then the further partition of Palestine into an Arab and Jewish state would have legal weight. But since they didn't, the Jewish claim on all of Palestine remained in force.
The 1949 Armistice Lines (mistakenly called the "1967 borders") are emphatically not national boundaries. They are explicitly stated in the armistice agreements as "not to be construed in any sense as a political or territorial boundary, and is delineated without prejudice to rights, claims and positions of either Party to the Armistice as regards ultimate settlement of the Palestine question" (from the Egyptian armistice,the Jordanian one says "without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto.") Their position (generally) had no demographic, political or geographic significance; they were simply where the opposing armies ended up at the last truce, with some minor adjustments. From the perspective of international law, they are not borders.
Jordan's sovereign claims to the West Bank were not recognized by the international community.
The next important legal document is UN Security Resolution 242 at the end of the 1967 war. (While it is a Chapter 6 resolution, Kontotovich noted that it was referred to in some Chapter 7 resolutions, meaning it might have the strength of the stronger Chapter 7 resolutions itself with respect to international law.) He discussed the famous missing "the" from the phrase "Withdrawal of Israeli armed forces from territories occupied in the recent conflict" and noted that this was done deliberately to make the resolution purposefully ambiguous as to whether Israel must withdraw from all the territories. He noted that in the end, when Israel relinquished the Sinai and later Gaza, Israel had withdrawn from some 99% of the territories, so it cannot be accused of violating the spirit of the resolution.
He also noted that the legality of Israel's annexation of the Golan Heights is a completely different topic from a legal perspective, and he did not get into it.
Kontorovich said that there is a big question in international law about whether one can legally acquire territory via conquest in a defensive war. He looked up five sources written before 1967 on the question; 2 said yes, 2 said no and one didn't think about it. In the case of the 1967 war, as with many things about Israel, the legal issues are completely unique and anyone saying that international law says something definitively on something that never happened before is generally not to be trusted. (I asked him whether the preamble of 242 meant that the UN considered the war not to be defensive; he answered that besides the fact that preambles are not part of the law, it would not make sense to interpret it that way because in that case Jordan also couldn't lay claim on it. He concluded that it was placed there in order to encourage the parties to come up with a negotiated border, as 242 states, and not a border created by conquest.)
The next legally important event for determining Israel's borders was the 1993 Oslo Accords. This is where Israel is relinquishing part of its occupied land (he noted that from Israel's perspective the land is occupied since it was not annexed, although it is legally occupied) to give to an ultimate Palestinian Arab entity.
Here is where he said something new.
In Professor Kontorovich's opinion, at some time after Oslo, Palestine became a state under international law.
The definition of a state is given by the Montevideo Convention. I had argued, and so had others, that "Palestine" does not constitute a state under its definition:
The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.
Kontorovich didn't get into the issue of Gaza, which may seem to be a problem since it has a different government, but he argues that since Area A is unquestionably part of what is claimed to be Palestine, that West Bank entity is undoubtedly a state. Having defined territory is not the same as having defined borders, and "Palestine" has st least some territory that it can call its own.
Therefore, the professor says, the entire issue nowadays between Israel and the Palestinian Arab state is not an issue of occupation or legality - it is simply a border dispute that must be resolved the way all border disputes are resolved (or not.)
One other point, not dwelled on in his slides, is that the Fourth Geneva Conventions article 49 on transferring people to occupied territory does not apply because in Israel's case the people moved there voluntarily, and Geneva implies government organized mass transfers.
It was a very interesting and thought provoking talk, and I spoke to him afterwards; he's a really nice guy. He's doing a fellowship in Princeton now but he is based out of Northwestern University.
If you want to hear him talk, here are some upcoming presentations he is making:
Cherry Hill, NJ on Feb. 12, One State, Two State, Three State, Four: The PA Bid for UN Recognition, sponsored by the RJC Southern New Jersey Chapter:
Princeton, NJ Feb. 12: International Lawfare, BDS. and the Delegitimization of Israel, sponsored by Advocates for Israel.
University of Florida Law School, Feb 15 at 12:15, Disputing Occupation: Israel's Borders in International Law
East Windsor, NJ March 28th: Say It Enough, it Still Isn't True: Illegal Occupation, Settlement, and Apartheid, sponsored (and hosted) by Beth El synagogue and Speak Up for Israel.
Thursday, December 30, 2010
Does recognition of "Palestine" have any legal meaning?
The recent recognition of "Palestine" as an independent state by Brazil, Argentina, Uruguay, Bolivia and now Ecuador brings up the question of whether these acts have any legal meaning.
In the nineteenth century, the general viewpoint in the matter was known as the "constitutive theory of statehood," meaning that a state becomes a legal entity due to the fact that it is recognized by other states. There were problems with this definition, for example when only some states recognized another. But it was considered normative.
All that changed in the twentieth century. The Montevideo Convention on the Rights and Duties of States (followed by the Badinter Committee in Europe) codified normative international law as saying that statehood is independent of recognition by other states. This is known as the "declarative theory of statehood" and in the Montevideo Convention statehood is defined this way:The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.
The main sticking point for "Palestine" is the second criterion: a defined territory.
The South American nations - who are signatories to the Montevideo Conventions - are declaring the territory of "Palestine" to be defined by the Green Line. The problem is that their declaration is based on fiction. For example, the Ecaudor recognition says "a free and independent Palestine with its 1967 boundaries." Before 1967, however, there were no boundaries between the West Bank and Jordan; there was no state of Palestine with any borders by any definition, and the Green Line was not a national boundary between Israel and Jordanian annexed territory. Ecuador might as well have declared that Palestine is on recognized lunar boundaries.
Furthermore, the statement says "This is a recognition that has been legitimized by resolutions 242 and 338 of the Security Council of the United Nations." This is also nonsense. Resolutions 242 and 338 do not mention a word about "Palestine" and do not even imply that such a state would ever exist, let alone legitimizing it.
It appears that these countries' recognition of "Palestine" have little legal bearing on its statehood, and statehood is impossible without a defined territory. They certainly have political value but not much legal meaning.
There might also be an argument as to whether "Palestine" has a government. It has two separate internal administrations that act as governments for their people, but the PA does not have diplomatic relations with other countries. The PA reports to the Palestinian Liberation Organization which handles all diplomatic issues - but it is not a government. Hamas acts more like a government than the PA.
A possible legal ramification of these countries' recognition might be in Article 6 of the Montevideo Conventions:The recognition of a state merely signifies that the state which recognizes it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.It is possible that from the perspective of the recognizing state, "Palestine" would be bound by international law that only applies to states. It is uncertain whether the Palestinian Arab leadership are willing to take on such responsibility at this time.
Again, I am not an international or any other kind of lawyer and all of these are just my interpretations of source materials, with some help from Wikipedia.
UPDATE: After I wrote this I asked an international lawyer to comment, and I was pointed to an interesting legal opinion by Professor Malcolm Shaw that touches on these very issues.
Briefly, Shaw talks about the "defined territory" requirement as much less important than I thought and the government requirement as much more important:The requirement for a defined territory does not mean that the boundaries of such territory have to be delineated and settled, nor that there be an absence of frontier disputes," but it does necessitate that there be at the minimum a consistent band of territory which is undeniably controlled by the government of the alleged State. This is an indispensable factual necessity. The concept of government as enumerated in the Montevideo Convention may be seen as the requirement for a foundation of effective control. It would seem to necessitate that the undisputed authority of that putative State should exercise a degree of overall control over most of the territory it claims. For this reason at least, therefore, the "State of Palestine" purportedly declared in November 1988 at a conference in Algiers cannot be regarded as a valid State. The Palestinian organisations did not control any part of the territory that was claimed.He goes on to say that the PA's lack of control over Gaza means that it can only be recognized as a government if "widespread international recognition" deems it so, which seems like Shaw admits that the constitutive theory still holds some sway.
Shaw then goes into much more detail about the PLO/PA split of responsibilities:There is one further relevant issue in considering the criterion of effective government. There is a clear distinction or division of competences on the Palestinian side between the Palestine Liberation Organisation ("PLO") and the Palestinian Authority. The former constitutes an internationally recognised "national liberation movement" accepted as representing externally the Palestinian people and the party with Israel to the various agreements commencing with the Declaration of Principles,1993. Under the Interim Agreement, 1995, in addition, it has authority to negotiate and enter into agreements for the benefit of the Palestinian Authority in certain limited circumstances. On the other hand, the Palestinian Authority, as will be seen in the following paragraphs, exercises within the West Bank and Gaza a number of powers and responsibilities expressly transferred from Israel. The two institutions are not identical. Thus, what might be termed governmental functions are split between the two bodies. This must impact upon any conclusion as to whether the criterion of effective government has in fact been complied with.
Shaw says that "Palestine" does not adhere to requirement (d), capacity to enter into relations with the other states, due to existing agreements with Israel and its lack of independence within those agreements.The essential point is that critical functions seen as indispensable to statehood in international law have by agreement between the relevant parties been recognised as matters subject to Israeli control. This includes what is termed the capacity to enter into relations with foreign States in the Montevideo Convention. This competence in the Interim Agreement is clearly reserved to Israel, apart from certain minor areas, as noted in article IX (5) a and b noted above. It also includes the exercise of effective control with regard to external threats. This is emphasised in article XII, which, while providing for the establishment of a Palestinian police force, stipulates that: "Israel shall continue to carry the responsibility for defence against external threats, including the responsibility for protecting the Egyptian and Jordanian borders, and for defence against external threats from the sea and from the air, as well as the responsibility for overall security of Israelis and settlements, for the purpose of safeguarding their internal security and public order, and will have all the powers to take the steps necessary to meet this responsibility".
Shaw goes further, saying that any declaration of "Palestine" would be inherently illegal because of the violation of existing agreements andit is also now part of the international consensus that the emergence of a new State must not take place upon the basis of illegality. This may be seen as reflective of the general principle of ex injuria поп oritur jus.He goes on:There is one further point in. the context of statehood. It may seem self-evident, but it is nevertheless a key issue, that in order for a new State to be created (and indeed recognised thereafter by the international community), the entity in question must actually assert a claim to statehood. A new State cannot arise implicitly or incidentally by way of circumstances or by way of inference. It may only be established as a concrete and explicit act of will. The US Restatement of the Foreign Relations Law notes that, "[w]hile the traditional definition does not formally require it, an entity is not a State if it does not claim to be a State".' Crawford concludes that, "[sjtatehood is a claim of right. Claims to statehood are not to be inferred from statements or actions short of explicit declaration".In the case of the Palestine, not only has no formal claim to statehood been made, but statements have been made continually declaring that the aim of the peace process is to establish a State of Palestine. This goes hand in hand with the explicit nature of the many instruments signed from the Declaration of Principles in 1993 onwards between the relevant parties, and witnessed by leading members of the international community, and indeed with the whole tenor of international documents.There's lots more there.
This is not a simple issue! Unfortunately, we have seen the international community ignore customary international law in favor of "Palestine" and against Israel before, and I would not be surprised if it happens again.
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