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Letters/Discussion Forums

In terms of uti possedetis juris, Israel occupies the high ground

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MYRON ROBINSON

Edelstein infers that SA Jewry was brought up with a one-sided view of the Israeli War of Independence and the subsequent wars, while Weinberg appears to support the same contention.

I don’t wish to become embroiled in past history but I hope to inform the letter writers what international law states, which is applied to all countries barring Israel. As always, double standards apply.

Israel’s borders and territorial scope are a source of seemingly endless debate. Yet little attention has been paid to the relevance of the doctrine of uti possidetis juris to resolving legal aspects of the border dispute. Uti possidetis juris is acknowledged as the doctrine of customary international law that is central to determining territorial sovereignty in the era of decolonisation.

The doctrine provides that emerging states presumptively inherit their pre-independence administrative boundaries.

Applied to the case of Israel, uti possidetis juris would dictate that Israel inherit the boundaries of the Mandate of Palestine as they existed in May, 1948. The doctrine would thus support Israeli claims to any or all of the currently hotly disputed areas of Jerusalem (including East Jerusalem), the West Bank, and even potentially the Gaza Strip (though not the Golan Heights).

What makes the uti possidetis doctrine so powerful is its generality: As a rule of customary international law, it is applied to all cases of state formation, from decolonisation in Africa to the collapse of the Soviet Union to the separation of Czechoslovakia.

Moreover, the doctrine trumps claims of self-determination, and any other kind of equitable objection to the former administrative boundaries.

It also turns out that the same kind of objections made to the boundaries of the Palestine Mandate were made in regard to many other mandated territories, yet in all cases the subsequently created countries received the full mandatory borders, despite strong contemporaneous doubts about their wisdom, stability and equity.

Israel was created by a mandate and a UN resolution. While Israel accepted the delimitation of its boundaries (and reduction in size), the Arab world did not.

While atrocities may have happened on both sides, I have no sympathy for those who wanted and/or want the destruction of Israel as they could have prevented the needless deaths by accepting the internationally agreed boundaries. In any event prior to 1967 nobody had heard of the “Palestinians” as they did not exist as an entity but were created as a political need by Israel’s enemies.

Therefore in the absence of a negotiated settlement, the armistice lines become the de facto boundaries. While the West Bank is a hot political potato, until such time as there is a negotiated settlement, the debate about entitlement to the West Bank will continue. 

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