Palestine, Uti Possidetis Juris and the Borders of Israel

By Abraham Bell and Eugene Kontorovich

Israel’s borders and territorial scope are a source of heated and longstanding debate. The fiercest arguments concern Jerusalem—many states deny Israeli claims to sovereignty in “East Jerusalem” (areas occupied by Jordan from 1948–1967 and incorporated thereafter by Israel into the Jerusalem municipality), while others, such as the United States, deny Israeli claims to sovereignty in any part of Jerusalem, East or “West.” But the debates go well beyond Jerusalem. The location of Israel’s eastern frontier is the heart of debates about the status of Israel’s presence in the West Bank.

Remarkably, despite the intensity of the debates, 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 widely acknowledged as the doctrine of customary international law that has proven central to determining territorial sovereignty in the era of decolonization. The doctrine provides a clear guideline for the borders of newly created states formed out of territories that previously lacked independence or sovereignty.

Today, it is generally accepted that the borders of newly formed states are determined by application of uti possidetis juris as a matter of customary international law. The doctrine even applies when it conflicts with the principle of self-determination. Summarizing the operation of the rule, Steven Ratner explains, “Stated simply, [the doctrine of] uti possidetis [juris] provides that states emerging from decolonization shall presumptively inherit the colonial administrative borders that they held at the time of independence.” Recent decades have shown that uti possidetis juris applies to all cases where the borders of new states have to be determined, and not just in its original context of decolonization. Thus, for instance, uti possidetis juris was used to determine the borders of the states created by the dissolution of the Soviet Union, Czechoslovakia, and Yugoslavia.

Although it was once merely a regional rule, the doctrine is now applied to border disputes around the world. 12 As the International Court of Justice ruled in The Case Concerning the Frontier Dispute (Burkina Faso/Republic of Mali):

[T]he principle of uti possidetis [juris] seems to have been first invoked and applied in Spanish America, inasmuch as this was the continent which first witnessed the phenomenon of decolonization involving the formation of a number of sovereign States on territory formerly belonging to a single metropolitan State. Nevertheless the principle is not a special rule which pertains solely to one specific system of international law. It is a general principle, which is logically connected with the phenomenon of the obtaining of independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power. . . . At first sight this principle conflicts outright with another one, the right of peoples to selfdetermination. In fact, however, the maintenance of the territorial status quo [] is often seen as the wisest course, to preserve what has been achieved by peoples who have struggled for their independence.

The application of the principle of uti possidetis juris to the legal borders of Israel seems straightforward. Israel emerged as a new state in 1948, when it declared statehood at the expiration of the Mandate of Palestine. The new state of Israel was immediately invaded by its neighbors and several non-neighboring Arab states, and at the conclusion of hostilities, Israel possessed only part of the territory of the Mandate (the remaining Mandatory territory was occupied by Syria, Egypt, and Transjordan). Israel and its neighbors reached armistice agreements, but they failed to reach peace treaties or boundary agreements. For its part, the British Mandatory government—the immediately prior ruling authority until 1948—did not propose or reach any agreement on borders with the new state. While there had been proposals to divide the territory of Palestine between two new states (one Jewish and one Arab), Israel was the only state to emerge from the Mandate of Palestine.

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. And, indeed, rather than undermine the application of uti possidetis juris, Israel’s peace treaties with neighboring states to date—with Egypt and Jordan—appear to reinforce it. These treaties ratify borders between Israel and its neighbors 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. Amazingly, however, such pronouncements reveal no awareness of the application of uti possidetis juris to the borders between Israel and its neighboring states. Indeed, the literature on both the doctrine and the Israeli-Arab conflict has almost entirely ignored application of uti possidetis to Mandatory Palestine.

At its expiration in 1948, the borders of the Mandate of Palestine, both internal and external, were relatively well demarcated and uncontroversial. Thus uti possidetis juris could be a powerful tool for resolving extant disputes about the borders of Israel. To be sure, Israel appears to be interested in drawing consensual new boundaries that differ from the borders established by uti possidetis juris. Uti possidetis juris does not preclude later modifications of borders. Application of uti possidetis juris, as is customary in other boundary disputes, would nevertheless provide a clear baseline for future negotiated solutions.

In this Article, we attempt to fill this notable gap in the scholarly literature. The Article explores the history and development of uti possidetis juris to see how it has been applied to previous disputes about states emerging from Mandatory territories, which are neither “classic decolonizations” nor the breakup of composite states. Likewise, this Article looks to the history of the Palestine Mandate (and to historic disputes about the Palestine borders) to see how it conforms to the patterns of the application of uti possidetis juris. We find that uti possidetis juris has been fully applied to the numerous border disputes regarding former Mandatory territories, notwithstanding the Mandates’ odd juridical statuses as neither full-fledged states, nor colonial possessions, nor mere administrative units of the Mandatory power. We find that bitter controversies about the borders of the Palestine Mandate are far from particular to Palestine. Similar controversies emerged regarding the borders of many other Mandates because they often took little account of national self-determination interests and were in several instances illegally modified by the Mandatory. Numerous Mandates were plagued by international doubts about the wisdom of their borders and subjected to serious discussions of revision. Yet in all cases, the borders of the Mandate as they stood at independence became the borders of the new successor state.

We go on to examine the events surrounding the termination of the Palestine Mandate and declaration of independence by Israel to determine whether the application of uti possidetis juris was overridden by Israel’s behavior at the time of independence. We fail to find any basis in that behavior for rejecting the application of uti possidetis juris.

In Part I, we explain the doctrine of uti possidetis juris generally and show how it has been used in other post-colonial territorial disputes.
In Part II, we turn to the way uti possidetis juris has been used to determine the boundaries of states that emerged from Mandatory territories.
In Part III, we explore the history of the emergence of the state of Israel from the British Mandate of Palestine, with particular attention to the boundaries of the Palestine Mandate. Finally, in Part IV, we examine whether there are any peculiar features of the Palestine Mandate or the independence of Israel that would preclude application of the doctrine of uti possidetis juris. A conclusion follows, in which we sketch out the implications of our findings.