In 2024, the International Court of Justice issued its advisory opinion on the “Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem.” This blog highlights the paragraphs in Judge Julia Sebutinde’s dissenting opinion that were plagiarized from the article “Palestine, Uti Possidetis Juris and the Borders of Israel” by Abraham Bell and Eugene Kontorovich (2016). It is a work in progress, and additional paragraphs may be added later.
Sebutinde:
As the Court explained in the Burkina Faso/Republic of Mali case, the doctrine ensures that:
“By becoming independent, [the] new State acquires sovereignty with the territorial base and boundaries left to it by the [administrative boundaries of the] colonial power… [The principle of uti possidetis juris] applies to the State as it is [at that moment of independence], i.e., to the ‘photograph’ of the territorial situation then existing. The principle of uti possidetis [juris] freezes the territorial title; it stops the clock”
The Court further observed in the case of Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening) that uti possidetis juris is a “Retrospective principle, investing as international boundaries administrative limits intended originally for quite other purposes”. In applying the doctrine, one does not ask whether the law at the time of the “photograph” viewed the administrative lines as international boundaries. Indeed, it is quite plain that the borderlines are not expected to have been international boundaries at the time of the “photograph”. Thus, for instance, in the Burkina Faso case, the Court did not have to inquire whether uti possidetis juris was a binding rule of international law at the time of decolonization. It was enough for the Court that uti possidetis juris was a binding rule of international law at the time the Court resolved the border dispute.
Bell & Kontorovich:
As the International Court of Justice explained in the Burkina Faso case, the doctrine ensures that:
“By becoming independent, [the] new State acquires sovereignty with the territorial base and boundaries left to it by the [administrative boundaries of the] colonial power. … [The principle of uti possidetis juris] applies to the State as it is [at that moment of independence], i.e., to the ‘photograph’ of the territorial situation then existing. The principle of uti possidetis [juris] freezes the territorial title; it stops the clock….”
As the International Court of Justice observed in the case of Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), uti possidetis juris is a “retrospective principle, investing as international boundaries administrative limits intended originally for quite other purposes.” In applying the doctrine, one does not ask whether the law at the time of the “photograph” viewed the administrative lines as international boundaries. Indeed, it is quite plain that the borderlines are not expected to have been international boundaries at the time of the “photograph.” Thus, for instance, in the Burkina Faso case, the court did not have to inquire whether uti possidetis juris was a binding rule of international law at the time of decolonization. It was enough for the court that uti possidetis juris was a binding rule of international law at the time the court resolved the border dispute.
Sebutinde:
Israel’s independence would thus appear to fall squarely within the bounds of circumstances that trigger the principle of uti possidetis juris. Applying the rule would appear to dictate that Israel’s borders are those of the Palestine Mandate that preceded it, except where otherwise agreed upon by Israel and its relevant neighbours. Indeed, Israel’s peace treaties with neighbouring States to date — with Egypt and Jordan — appear to reinforce it. These treaties ratify borders between Israel and its neighbours explicitly based on the boundaries of the British Mandate of Palestine. Likewise, in demarcating the so-called “Blue Line” between Israel and Lebanon in 2000, the United Nations Secretary General relied upon the boundaries of the British Mandate of Palestine.
Given the location of the borders of the Mandate of Palestine, applying the doctrine of uti possidetis juris to Israel would mean that Israel has territorial sovereignty over all the disputed areas of Jerusalem, the West Bank, and Gaza, except to the degree that Israel has voluntarily yielded sovereignty since its independence. This conclusion stands in opposition to the widely espoused position that international law gives Israel little or no sovereign claim to these areas.
Bell & Kontorovich:
Israel’s independence would thus appear to fall squarely within the bounds of circumstances that trigger the rule of uti possidetis juris. Applying the rule would appear to dictate that Israel’s borders are those of the Palestine Mandate that preceded it, except where otherwise agreed upon by Israel and its relevant neighbor. …Likewise, in demarcating the so-called “Blue Line” between Israel and Lebanon in 2000, the United Nations Secretary General relied upon the boundaries of the British Mandate of Palestine. Given the location of the borders of the Mandate of Palestine, applying the doctrine of uti possidetis juris to Israel would mean that Israel has territorial sovereignty over all the disputed areas of Jerusalem, the West Bank, and Gaza, except to the degree that Israel has voluntarily yielded sovereignty since its independence. This conclusion stands in opposition to the widely espoused position that international law gives Israel little or no sovereign claim to these areas.
Sebutinde:
A fourth armistice agreement was signed with Israel’s last neighbouring State — Lebanon. Because Lebanon had not succeeded in conquering and holding any of the territory of the Palestine Mandate, the armistice line with Lebanon coincided with the prior boundary of the Mandate. Nonetheless, the armistice line had an interesting feature. Like the armistice lines with Israel’s other neighbours, the armistice line with Lebanon was established as a military line, without prejudice to the parties’ claims to territorial sovereignty.
Bell & Kontorovich:
A fourth armistice agreement was signed with Israel’s last neighboring state—Lebanon. Because Lebanon had not succeeded in conquering and holding any of the territory of the Palestine Mandate, the armistice line with Lebanon coincided with the prior boundary of the Mandate. Nonetheless, the armistice line had an interesting feature. Like the armistice lines with Israel’s other neighbors, the armistice line with Lebanon was established as a military line, without prejudice to the parties’ claims to territorial sovereignty.
Sebutinde:
The armistice lines, as established in 1949 and modified by minor adjustments in military lines between 1949 and 1967, are often referred to as the “1967 boundaries”.
Bell & Kontorovich:
The armistice lines, as established in 1949 and modified by minor adjustments in military lines between 1949 and 1967, are often referred to as the “1967 boundaries.”
Sebutinde:
Thus, while considerable efforts had been invested in creating and advancing proposals for altering the borders of the Jewish State of Israel and a contemplated companion Arab State (two-State solution), no such efforts have so far, succeeded in being implemented. Thus, it would appear that uti possidetis juris dictates recognition of the borders of Israel as coinciding with the borders of the Mandate as of 1948, rather than the “1967 borders” unless and until the parties to the conflict agree otherwise.
Bell & Kontorovich:
At the same time, while considerable efforts had been invested in creating and advancing proposals for altering the borders of the ultimate Jewish state and a contemplated companion Arab state, no such efforts were crowned with the success of implementation. Thus, it would appear that uti possidetis juris dictates recognition of the borders of Israel as coinciding with the borders of the Mandate as of 1948.
Sebutinde even used the same figures as Bell and Kontorovich.
Update 2025/01/28
Sebutinde:
On the eve of the British withdrawal, on 14 May, Jewish authorities declared the independence of the Jewish State in Palestine, called Israel. Local Arab authorities, on the other hand, while rejecting the Jewish State, did not declare or otherwise move to create an Arab State in Palestine.
….
Shortly thereafter, the Arab States that had conquered parts of Palestine imposed a military administration on the areas they had seized. In September, fearing a Transjordanian annexation of parts of Mandatory Palestine, Egypt initiated the creation of an Arab Government of “all Palestine”, which, on 1 October, declared an independent Arab State in all of Palestine. While six Arab States recognized the new “Government” of Palestine, it never exercised any authority anywhere, and it quietly retired to anonymous offices in Cairo and then dissolution.
Bell & Kontorovich:
On the eve of the British withdrawal, on May 14, Jewish authorities declared the independence of the Jewish state in Palestine, called Israel. Local Arab authorities, on the other hand, while rejecting the Jewish state, did not declare or otherwise move to create an Arab state in Palestine. Shortly thereafter, the Arab states that had conquered parts of Palestine imposed a military administration on the areas they had seized. In September, fearing Transjordanian annexation of parts of Mandatory Palestine, Egypt initiated the creation of an Arab government of “all Palestine,” which, on October 1, declared an independent Arab state in all of Palestine. While six Arab states recognized the new “government” of Palestine, it never exercised any authority anywhere, and it quietly retired to anonymous offices in Cairo and then dissolution.
Sebutinde:
The war ended by late 1948, with Israel controlling roughly three quarters of the territory of the Palestine Mandate. The remaining territory was conquered by Syria, Egypt, and Jordan. Egypt ruled the conquered parts of Palestine (the Gaza Strip) by military administration. Jordan occupied part of that territory which became known as the West Bank, while Egypt occupied Gaza. Jerusalem was divided between Israeli forces in the West and Jordanian forces in the East, while Transjordan and Syria treated the conquered areas as part of their municipal territories. No other Arab State claimed sovereignty within the area. Syria, Egypt, and Jordan all signed armistice agreements with Israel, marking the lines between the territory controlled by Israel and the lands conquered by the Arab States. However, the armistice agreements were clear in stating that the armistice lines were not boundaries and that the parties retained their claims to territorial sovereignty.
Bell & Kontorovich:
The war ended by late 1948, with Israel controlling roughly three-quarters of the territory of the Palestine Mandate. The remaining territory was conquered by Syria, Egypt, and Jordan (the new name of Transjordan). Egypt ruled the conquered parts of Palestine (the Gaza Strip) by military administration, while Transjordan and Syria treated the conquered areas as part of their municipal territories. No other Arab state claimed sovereignty within the area. Syria, Egypt, and Jordan all signed armistice agreements with Israel, marking the lines between the territory controlled by Israel and the lands conquered by the Arab states. However, the armistice agreements were clear in stating that the armistice lines were not boundaries and that the parties retained their claims to territorial sovereignty.
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