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The late Professor Julius Stone was recognised as one of the twentieth century's leading authorities on the Law of Nations. "Israel and Palestine -- Assault on the Law of Nations", which appeared in 1980, presented a detailed analysis of the central principles of international law governing the issues raised by the Arab-Israeli conflict.
the first edition of this short summary appeared in 1990. Since then the rights of the parties have been modified by agreement, and the optimism which followed the various agreements has been succeeded by violent conflict. This second edition therefore appears in a climate in which legal assertions are once again a central part of the political discourse, a context which has renewed the relevance of Professor Stone's clear analysis of the status under international law of the Territories which came into Israel's possession in 1967. To download the Summary, click here.
What follows is Part I of the Summary.
Julius Stone examines the principles governing legal title to the Territories known as the Gaza Strip and the "West Bank", which are part of the territory which came into Israel's possession during the war of 1967. In his analysis Stone draws upon the writings of Professor Stephen Schwebel, the former Chief Judge of the International Court of Justice.
Since Stone wrote, the legal status of the Territories has been affected by the agreements implementing the Oslo Accords of 1993, which provide for a sharing of governmental powers in the Territories with the Palestinian Authority, with specified security powers reserved to Israel (See Part 5). However those agreements are on an interim basis, pending and subject to the negotiation of a "permanent status agreement", and they leave the underlying legal title intact.
Also the peace treaty of 1994 now sets the international boundary
between Israel and Jordan at the centre of the Jordan river, "without
prejudice to the status of [the] Territories".
The Self-Defence Principle
The basic precept of international law concerning the rights of a state victim of aggression, which has lawfully occupied the attacking state's territory in the course of self-defence, is clear. And it is still international law after the Charter, which gave to the UN General Assembly no power to amend this law. This precept is that a lawful occupant such as Israel is entitled to remain in control of the territory involved pending negotiation of a treaty of peace.
Both Resolution 242 (1967) and Resolution 338 (1973), adopted by the Security Council after respective wars of those years, expressed this requirement for settlement by negotiations between the parties, the latter in those words. Conversely both the Security Council and the General Assembly in 1967 resisted heavy Soviet and Arab pressures demanding automatic Israeli withdrawal to the pre-1967 frontiers. Through the decade 1967-1977, Egypt and her Arab allies compounded the illegality of their continued hostilities by proclaiming the slogan "No recognition! No Peace! No negotiation!" thus blocking the regular process of international law for post-war pacification and settlement...
Israel's territorial rights after 1967 are best seen by contrasting them with Jordan's lack of such rights in Jerusalem and the West Bank after the Arab invasion of Palestine in 1948. The presence of Jordan in Jerusalem and elsewhere in cis-Jordan from 1948 to 1967 was only by virtue of her illegal entry in 1948. Under the international law principle ex iniuria non oritur ius she acquired no legal title there. Egypt itself denied Jordanian sovereignty; and Egypt never tried to claim Gaza as Egyptian territory.
By contrast, Israel's presence in all these areas pending negotiation of new borders is entirely lawful, since Israel entered them lawfully in self-defence. International law forbids acquisition by unlawful force, but not where, as in the case of Israel's self-defence in 1967, the entry on the territory was lawful. It does not so forbid it, in particular, when the force is used to stop an aggressor, for the effect of such prohibition would be to guarantee to all potential aggressors that, even if their aggression failed, all territory lost in the attempt would be automatically returned to them. Such a rule would be absurd to the point of lunacy. There is no such rule...
International law, therefore, gives a triple underpinning to
Israel's claim that she is under no obligation to hand back
automatically the West Bank and Gaza to Jordan or anyone else. In the
first place, these lands never legally belonged to Jordan. Second,
even if they had, Israel's own present control is lawful, and she is
entitled to negotiate the extent and the terms of her withdrawal.
Third, international law would not in such circumstances require the
automatic handing back of territory even to an aggressor who was the
former sovereign. It requires the extent and conditions of the handing
back to be negotiated between the parties.
Competing Claims to Title
Because the Jordanian entry onto the West Bank and East Jerusalem in 1948 was an unlawful invasion and an aggression, the principle ex iniuria non oritur ius beclouded even Jordan's limited status of belligerent occupant. Her purported annexation was invalid on that account, as well as because it violated the freezing provisions of the Armistice Agreement. Conversely Israel's standing in East Jerusalem after her lawful entry in the course of self-defence certainly displaced Jordan's unlawful possession.
Once this position is reached, and it is remembered that neither Jordan nor any other state is a sovereign reversioner entitled to re-enter the West Bank, the legal standing of Israel takes on new aspects. She becomes then a state in lawful control of territory in respect of which no other state can show better (or, indeed, any) legal title. The general principles of international law applicable to such a situation, moreover, are well-established. The International Court of Justice, when called upon to adjudicate in territorial disputes, for instance in the Minquires and Echrehos case between the United Kingdom and France, proceeded "to appraise the relative strength of the opposing claims to sovereignty". Since title to territory is thus based on a claim not of absolute but only of relative validity, the result seems decisive in East Jerusalem. No other state having a legal claim even equal to that of Israel under the unconditional cease-fire agreement of 1967 and the rule of uti possidetis, this relative superiority of title would seem to assimilate Israel's possession under international law to an absolute title, valid erga omnes...
The most succinct statement of this position is in Professor Stephen Schwebel's What Weight to Conquest? published in 1970, before he entered U.S. government service. He points out that the answer to that question in terms of international law, after the Charter's prohibitions of the use of force, makes necessary a vital distinction "between aggressive conquest and defensive conquest, between the taking of territory legally held and the taking of territory illegally held":
"Those distinctions may be summarized as follows:
a) A state acting in lawful exercise of its right of self-defence may seize and occupy foreign territory as long as such seizure and occupation are necessary to its self-defence.
b) As a condition of its withdrawal from such territory, that state may require the institution of security measures reasonably designed to ensure that that territory shall not again be used to mount a threat or use force against it of such a nature as to justify exercise of self-defence.
c) Where the prior holder of the territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title."
The issues discussed in this section have continuing relevance in the context of current assertions that Israeli presence in the Territories constitutes an "illegal occupation". Such assertions ignore both Israel's underlying right to lawful possession of the Territories as outlined by Stone, and the specific rights reserved to Israel in the interim power-sharing agreements under the Oslo Accords, as extracted in Part 5.
As Stone remarks a state victim of aggression is entitled to protect itself by retaining lawful possession of territory taken in self-defence from a defeated aggressor. The dismemberment of Germany after two world wars, as a protection against any repeated aggression, is a classic example of the operation of the customary law.
The legal principle is reflected in Article 75 of the Vienna Convention on the Law of Treaties, which declares that the provisions of the Convention governing the validity of treaties are "are without prejudice to any obligation... which may arise for an aggressor State" in consequence of measures taken by the victim of the aggression in lawful self-defence.
In the case of the Territories the relevant historical background includes the Arab invasion of Israel in 1948, continuing armed incursions by irregular forces after the armistice agreements of 1949, and the naval blockade and the massing of the armed forces of Egypt, Jordan, Syria and Iraq in preparation for a further invasion in 1967. As President Gamal Abdel Nasser declared to the Egyptian parliament at the time:
"The problem before the Arab countries is not whether the port of Eilat should be blockaded or how to blockade it -- but how totally to exterminate the State of Israel for all time".
It is thus the historical context itself which makes it inconceivable that the Israeli presence in the Territories could be characterized as "illegal". If this were so, then Israel would be bound to withdraw unilaterally from the whole of the Territories, and without any peace agreement, security guarantees or border adjustments. As Stone points out, this would then negate the whole basis for the negotiation of a peaceful settlement with "secure and recognized boundaries" as contemplated by UNSC Resolution 242.
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