Of sovereignty over the West Bank?
THE FURORE surrounding Israel’s proposals to apply civilian law to parts of Area C has been fuelled not just by the mischaracterisation of the proposed move, but also by the misapplication of international law to the territory.
The move is consistently misrepresented as “annexation” and a “violation of international law”. Both of these allegations are false and yet they are widely propagated, even by some professors of international law.
This ‘groupthink’ has been engendered by a raft of politicised UN resolutions, which have no binding legal effect.
Indeed, the misnomers have even been adopted by the International Court of Justice, although notably again only in a non-binding Advisory Opinion, rather than a judgment with any legal force.
This “received wisdom” must be challenged, principally because it relies upon the imposition of double standards against Israel, in breach of the fundamental principle of the equal application of international law. Such double standards also importantly prevent informed debate about the pros and the cons of the proposed move.
What the Israeli government is contion” sidering is a change to the internal administrative legal framework in certain parts of Area C of the West Bank, replacing the military law that currently applies in these areas with the civilian law that applies throughout Israel.
There will be no change to sovereignty, borders or the status of the territory. The existing administrative framework, instituted by Israel in 1967, was intended to be temporary. It has now been dragged out for 53 years, through decades of failed negotiations. It is an inadequate and antiquated administration, comprising a confusing patchwork of Ottoman, British Mandate and Jordanian law and aspects of international humanitarian law.
Analysis of the status of the territory in international law takes us to the origins of the State of Israel. The universal rule for determining borders for emerging states, “uti possidetis juris”, dictates that such states are established with the same boundaries of the prior administrative entity in that land, unless otherwise agreed.
This principle developed in international law in order to ensure stability and security for new states at their birth, to promote certainty and avoid disputes over frontiers. “Uti possidetis juris” has been universally applied upon the independence of new states, including to the emergence of states in Asia, Africa, South America and from the former Soviet Union and Yugoslavia. It has also been consistently applied to states emerging from mandates.
Under this principle of international law, as the only state to emerge from the British Mandate, on 14 May 1948 Israel automatically inherited the mandatory boundaries as its own borders. The eastern border ran along the Jordan river all the way south to the Red Sea, originally dividing the British administrative units of ‘Palestine’ and ‘Transjordan’.
Under this default rule of international law, the territory with which the current proposal is concerned has been under Israeli sovereignty since Israel’s independence, including during Jordan’s occupation of the territory between 1948 and 1967.
While the territory is politically disputed, the correct legal principle to be applied is clear. The term “annexais fundamentally misconceived as a State cannot annex its own sovereign territory.
Since the application of this fundamental principle to determine Israel’s borders at the moment of independence in 1948, there has not been a single agreement to alter territory or borders. In fact, the peace agreements that Israel has achieved to date with its neighbours, Egypt and Jordan, ratify the previous boundaries of the mandate in keeping with the “uti possidetis juris” principle. When Israel applied its law, administration and jurisdiction to East Jerusalem at the conclusion of Jordan’s occupation in 1967, it was made clear by the then Foreign Minister Abba Eban that these acts did not constitute annexation.
Israel’s jurisdiction over territory it recovered from Jordan has been mischaracterised principally due to the political decision in 1967 to adopt, as part of the temporary administrative regime in the West Bank, aspects of international humanitarian law from the framework of the law of occupation. But this has not impacted the question of sovereignty.
Under the power-sharing arrangements of the Oslo Accords, agreed 25 years ago, Area C has remained under full Israeli jurisdiction. Since those agreements, which established the Palestinian Authority, Israel has continually sought to negotiate a political solution with Palestinian representatives. In the absence of a final settlement, sovereignty and borders have remained unchanged.
Contrary to much of the rhetoric, the proposals with respect to Area C would not prejudice future negotiations. All proposals for a two-state solution have envisioned sovereign Israeli territory being transferred via land-swaps; most recently, the ‘Trump Plan’ envisages significant parts of undisputed Israeli sovereign territory in the Negev being transferred in that fashion. In previous negotiations, Israel has offered land to which its law applies in full, and it has shown every intention of continuing to do so.
The public is being consistently misinformed on the proposal to apply Israeli civilian law to parts of Area C in the West Bank. The spread of disinformation, both on the facts and the law, has already done significant damage to the UK and Europe’s diplomatic relations with Israel.
Israel’s international standing has been harmed, not by the realities of the proposals, but by the application of double standards and the continuing misrepresentations of international law.
The territory has been under Israeli sovereignty since 1948
Natasha Hausdorff is a barrister and a director of ‘UK Lawyers for Israel’. She previously clerked for the President of the Israeli Supreme Court, Chief Justice Miriam Naor, and was a Fellow in the National Security Law Programme at Columbia Law School in New York.