OPINION: Annexing what’s already yours? The legal case against the charge

With several Western countries poised to recognise a Palestinian state, Finance Minister Bezalel Smotrich last week unveiled a detailed plan for Israel to annex 82 percent of the West Bank. However, the United Arab Emirates immediately warned that it would endanger the Abraham Accords, and Benjamin Netanyahu promptly removed the issue from his cabinet’s agenda.

While the plan was provocative, it would have involved no extension of sovereignty. This is because, extraordinary as it may seem, under a true reading of international law Israel already enjoys sovereignty over the West Bank and Gaza, as it has done since 1948. It can therefore hardly “annex” its own sovereign realm.

The supposition that annexation would constitute a violation of international law is based principally on the 1967 UN Security Council Resolution 242, under which Israel was enjoined to quit the so-called occupied territories if the neighbouring Arab states ended their belligerency (which Jordan and Egypt have, of course, since done).

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Meanwhile, other resolutions have reiterated the “illegality” of establishing settlements in the territories.

Yet UN resolutions are no more than the term implies: pronouncements of intent, desire, expectation or moral exhortation. Member states are expected to comply, but resolutions in themselves do not carry the force of law. For example, UN Resolution 181 of 29 November, 1947, affirmed the principle of the partition of Mandatory Palestine into Jewish and Arab states but did not in law create them.

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That Israel already enjoys sovereignty over the so-called occupied territories is based on a long-established principle of international law recently brought into sharp focus by the distinguished London barrister, Natasha Haussdorf, legal director of UK Lawyers for Israel Charitable Trust.

I must confess I was at first sceptical of the argument until, after closer scrutiny of the relevant academic treatments, I came to see that the proposition is incontrovertible.

The international law principle in question, identified by its Latin precept uti possidetis juris (literally “as you possess, so you may possess”), provides that when a new state is established in territory that was previously subject to colonial rule, the borders of the state will normally be those of the prior colonial territory, even if there are ethnic or national minorities within the territory aspiring to self-determination.

The principle was applicable to the end of the British Mandate, albeit Palestine was not a Crown colony but a region entrusted to Britain’s control by the League of Nations. In the most comprehensive study of the subject, the American scholars Bell and Kontorovich convincingly cited uti possidetis juris to demonstrate that when Israel’s statehood was declared on May 14, 1948, the borders of the new state automatically became, on that critical date, those of the simultaneously expired Mandate.

This was for the decisive reason that Israel was the only state to emerge from the Mandate. Other commentators, notably Shaw and Krezmer, have separately made valiant, ultimately forlorn, attempts to circumvent the compelling logic of this simple verity.

In declaring statehood so promptly, Israel invoked Resolution 181, which pronounced that the Mandate territory should be partitioned with one-third going to a Jewish state and two-thirds to an Arab state, a proposed allocation broadly reflecting the then demographic ratio.

By contrast with the leadership of the Yishuv, who for tactical reasons had reluctantly fallen in with Partition, the leaders of the Arab community of the former Mandate wilfully refused to declare a counterpart state in the areas earmarked for them under the Partition plan. Instead, by force of arms they perpetuated their rejection of Partition, urging their brethren in the neighbouring states to annihilate the “Zionist entity”. They did not declare an Arab state because it would have implied an acknowledgement of the legitimacy of the Partition, and they wanted the lot.

Like nature, law abhors a vacuum, and so by virtue of that failure and de possidetis juris, Israel acquired sovereignty over the whole territory by default, even though it did not seek to win military control of the West Bank or the Gaza Strip before the 1949 Armistice agreement froze the borders in favour of the respective occupation states, Transjordan and Egypt.

In spite of a warning from Israel not to get involved in the 1967 War, Jordan, with no good reason, broke the 1949 truce and attacked Israel, which in self-defence then occupied the West Bank, over which it had enjoyed sovereignty in absentia since 1948.

That sovereignty is subject to autonomous control over parts of the West Bank devolved to the Palestine Authority in pursuance of the 1993 Oslo Accords. The latter established that elevation of autonomy to statehood might only follow from a bilateral negotiated final status settlement between Israel and the Palestine Authority.

Under customary international law there must be an available territory for a state to exist. Unless and until under Oslo Israel agrees to hand over its sovereignty of the West Bank there will be no territory available.

Quite apart from the fact that recognition of Palestinian statehood in the absence of such a settlement will be an empty political gesture devoid of legal validity, if the UK government now purports to recognise Palestinian statehood without such an agreement (despite all the caveats Sir Keir Starmer has laid down), it will be doing so in violation of its own formal endorsement of Oslo.

• David Wolchover is a barrister