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The Israel-Palestine Conflict in International Law: Territorial Issues Scobbie and Hibbin

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The Israel-Palestine Conflict in International Law: Territorial Issues Scobbie and Hibbin T The Israel-Palestine h e I s r a e l - P Conflict a l e s t i n e C in International Law: o n f l i c t i n Territorial Issues I n t e r n a t i o n a l L a w : T e r r i t o r i a l I s s u e s Iain Scobbie with Sarah Hibbin and an Introduction by Henry Siegman S c o b U.S./Middle East Project b i e and a n d the Sir Joseph Hotung Programme for Law, Human H i Rights and Peace Building in the Middle East, School b b i n of Oriental and African Studies, University of London The Israel­Palestine Conflict in International Law: Territorial Issues Iain Scobbie with Sarah Hibbin Introduction by Henry Siegman The U.S./Middle East Project and The Sir Joseph Hotung Programme for Law, Human Rights and Peace Building in the Middle East School of Oriental and African Studies University of London Copyright © 2009 by the U.S./Middle East Project. All rights reserved. Printed in the United States of America. This report may be quoted or reproduced, provided the appropriate credit is given to the authors of this report and to the sponsoring organizations. The Sir Joseph Hotung Programme for Law, Human Rights and Peace Building in the Middle East works to highlight and promote the use of international law and human rights in respect to the engagement of all parties, including third States, to Israeli‐Palestinian relations. The goal is to generate policy‐oriented scholarship that will support the development of practical strategies for a just and lasting peace in the region. The research programme on Law, Human Rights and Peace Building in the Middle East is sponsored by Sir Joseph Hotung and administered by SOAS. The U.S./Middle East Project was established in 1994 by the Council on Foreign Relations (CFR) under the direction of Henry Siegman, a senior fellow on the Middle East at the Council. In 2006, the U.S./Middle East Project became an independent policy institute. Its mission is to provide non partisan analysis of the Middle East peace process and to present policymakers in the United States, in the region and in the larger international community with balanced policy analysis and policy options to prevent conflict and promote stability, democracy, modernization and economic development throughout the region. The U.S./Middle East Project pursues these goals under the guidance of an International Board chaired by General (Ret.) Brent Scowcroft (President, Forum for International Policy; former National Security Adviser to President Gerald Ford and President George H.W. Bush). The International Board comprises eminent personalities with extensive experience, in government and in the private sector, in dealing with the political, economic and social aspects of this critical and troubled region. The U.S./Middle East Project pursues its mission through a range of activities that include studies, periodicals and publications, conferences, consultations with heads of states in the region and collaboration with a wide range of international agencies pursuing similar goals. CONTENTS Acknowledgements..............................................................................................vi Introduction .......................................................................................................... vii I. Delineation of the Area in Issue..................................................................1 a. Title to Territory: The Doctrines of Uti Possidetis and Relativity of Title........................................................................................... 12 II. The Inter‐Temporal Rule and Self‐Determination.......................... 17 III. Core Content of Self‐Determination..................................................... 21 IV. The Role of the United Nations in Relation to the Mandate for Palestine.................................................................................................................. 25 a. The International Trusteeship System........................................... 26 b. UN Competence in the Supervision of Mandates ...................... 27 V. United Nations Partition Plan for Palestine ...................................... 33 VI. Normative Implications of General Assembly Resolution 181 39 VII. Israeli and Palestinian Arab Attitudes to Resolution 181........ 43 a. Israeli Attitudes to Resolution 181................................................... 43 b. Arab Attitudes to Resolution 181..................................................... 53 c. Changing the Boundaries Contained in Resolution 181 ......... 55 VIII. The 1949 Armistice Agreements....................................................... 58 IX. Consequences of the Six‐Day War........................................................ 65 a. The Interpretation of Resolution 242............................................. 74 b. Resolution 242 and the Palestinians .............................................. 81 X. Prohibition of the Acquisition of Territory through the Use of Force......................................................................................................................... 85 XI. Acquisition of Territory and Self‐Defense ........................................ 93 XII. “Disputed Territories” and the "Missing Reversioner” ...........101 XIII. Israeli Settlements in Occupied Palestinian Territory...........105 XIV. The Future of the Territory................................................................111 Appendix: Meron Opinion (1967) .............................................................116 About the Authors ............................................................................................123 International Board .........................................................................................124 ACKNOWLEDGEMENTS The publication of this study has been made possible by the generosity of Sir Joseph Hotung, a member of the International Board of the U.S./Middle East Project and sponsor of the Sir Joseph Hotung Programme for Law, Human Rights and Peace Building in the Middle East, School of Oriental and African Studies, University of London. We also acknowledge the indispensable editorial contributions of Gail Israelson, Executive and Personal Assistant to the President, and Matthew Berkman, Research Associate, as well as their contributions to the production of the study. As with all publications of the U.S./Middle East Project, the views expressed by the authors are their own. [vi] INTRODUCTION Conflict resolution and peacemaking are political rather than legal exercises. Parties to a conflict may agree to relinquish rights granted them in international law, particularly if such concessions serve to obtain comparable trade‐offs from the other side. What matters for the achievement and sustainability of a peace accord is that it not leave any of the parties with a deep sense of having been victimized by a one‐sided and unjust agreement. Such a lingering sense of unfairness and victimization inevitably fuels a revanchism that sooner or later rekindles the conflict. And yet, international law – particularly its most fundamental norms, known as “peremptory norms” – needs to be taken into account by would‐be peacemakers, not for “legalistic” reasons, too often seen as irrelevant to the political dynamics of the conflict, but because they embody quintessential principles of fairness and justice. International law does not allow states to disregard peremptory norms in the conduct of their international relations, nor may they enter into agreements that conflict with them. In the context of the Israel‐Palestine conflict, there are two such peremptory norms with the deepest implications for the resolution of its territorial aspects. They are the democratic principle of the right to self‐determination by a majority population in previously mandated territories, and the prohibition against the acquisition of territory by war, which applies to aggressors and victims alike. That is why what international law has to say about the territorial issues in this conflict, as described in The Israel­Palestine Conflict in International Law: Territorial Issues by Iain Scobbie and Sarah Hibbin, cannot be ignored by would‐be peacemakers. It is because so far it has been largely ignored that all previous peace initiatives have come to grief. Because these two peremptory norms are dealt with extensively in the following essay, there is no need to expatiate on them here, other than to stress their important role in the perception of the fairness of any proposed terms for a permanent [vii] Introduction status agreement and the sustainability of such an agreement over time. There are other considerations that also touch on the fairness of an agreement that need to be addressed by the international community and by U.S. policymakers, to whom the international community looks to assume the lead in moving the parties to an accord that will end the conflict and result in “two states living alongside each other in peace and security.” From a Palestinian perspective, the UN General Assembly’s Partition Plan of 1947 recognized that 43 percent of Mandate Palestine can rightfully be claimed by the Arab population as its legitimate patrimony. This should have brought into question Israel’s claim to the additional roughly 25 percent of Palestinian territory it acquired during its War of Independence in 1948. Nevertheless, Palestinians realize that UN Security Council Resolution 242 and 338 demanded of Israel to withdraw to the 1949 Armistice line, not the lines of the Partition Resolution. More importantly,
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