Excerpt
Contents
The Political Philosophy of Territorial Rights and the State of Israel
State Territory, International law and the case of Israel
(Legal) history of the founding of the state of Israel in 1948
(Legal) history of the expansion of Israeli territory in 1967
A political theory of territorial rights and the state of Israel
Applying a Lockean theory of territory to the case of Israel
Alternative Lockean Approaches
Applying a Nationalist theory of territory to the case of Israel
Conclusion
Bibliography
The Political Philosophy of Territorial Rights and the State of Israel
In my paper “The Political Philosophy of Territorial Rights and the State of Israel”, I will examine what different philosophical approaches towards Territorial Rights of states can tell us about the founding and being of the State of Israel. This is, as some might say, either illegitimate or futile and refer to either of two arguments in support of their opposition. On the one hand some might fear the debate in this paper could be used as a pretext to put the mere existence of the State of Israel to discussion. However, the issue of this paper could not be any further from putting Israel's right to exist to debate and any reader will realize this sooner rather than later. In fact, I think that quite the opposite is the case. On the other hand some might say that international law already holds the answers for most of the unsolved issues in this context and that it is solely a problem of non-implementation of this law that keeps the conflict going. On this point I clearly oppose. I argue that first international law is not as clear on the subject as some might argue, second that for this reason the sole reference to international law has not contributed essentially to a solution of the conflict within the recent years and third that many of the legal aspects oppose perceptions of justice for both sides involved. Therefore, I believe that taking a close look at the issue using theoretical perspectives of some of the most prestigious thinkers of the past centuries can positively contribute to the debate surrounding the Israeli-Palestinian conflict. The findings of this paper and their normative aspects hold political implications that provide a deeper understanding for the possibilities of a just peace between the parties involved.
In the first section of my paper, I will take a look at the legal aspects of territory in general and the case of Israel in particular. In this context I will also examine the historical dimensions that play a role in our case. Rejecting the idea that the reference to legal implications hold the components for a just peace, I then turn to the theoretical approaches towards the question of territorial rights. In this context, I will engage different schools of thought, including their most important authors, that consider the normative foundations of a.) the rights of states to rule over territory and b.) the rights of a particular state to rule over a particular territory. These theoretical approaches are first Lockean approaches towards territorial rights which derive territorial rights from property rights of individuals/collectives and their consent to pass over these rights to a state and secondly, nationalist approaches that focus on the nation as the subject of territorial rights and emphasize its' historical connection to particular.
In the main part of my paper, I will examine what each of the theoretical approaches can tell us about the key territorial questions associated with the founding and the being of the State of Israel or about relevant territorial aspects surrounding the conflict. In the last chapter, I will summarize the findings of my paper and subject them to a critical reevaluation.
State Territory, International law and the case of Israel
International Law is considered a legitimate point of reference in international relations and has a strong moral force. This certainly also applies for the Israeli-Palestinian Conflict. So before taking a look at the situation from theoretical perspectives that do not put established international law at the center of their argument, I will provide an overview on the most important legal aspects of territorial questions in general and the case of Israel in particular.
How state territories and therefore borders come into being in a legally permissible way is a relatively simple issue (in theory). States must never declare borders unilaterally but in an agreement with the neighboring country/ countries. Therefore, borders are usually established in some sort of legal agreement, often in peace treaties or through the fact that a state has not protested another state's borders for a reasonable amount of time (Ipsen 2018: 82-97). Subsidiary, common law with regard to natural boarders can be used. Maps, often added as an annex to treaties, play an outstanding role in border agreements. Where there are no agreements with regard to the status of a territory in question whatsoever, an effectivity concept comes into play, giving the state that has effectively ruled the territory for a reasonable amount of time the right to keep ruling it (Ibid.). Another important role, also for our case, plays a legal principle called Uti possidetis Juris. Besides other implications this principle states that after the process of decolonization, the new, now independent state, shall consist of the territory within the borders the colonizers drew. Annexation as unlawful and violent appropriation of another state's territory in one's own territory is considered illegal in (almost) all cases. However, there remain different positions on the legality of annexation in cases of wars of self-defense in sense of Art. 51 of the UN-Charta. Here, some argue, that annexation should be legal in order to prevent future attacks from the hostile state's territory and/or to create a deterrent against aggressor states. This opinion is only challenged since the mid of the last century. In cases where questions on effective control and unlawful annexation come into conflict, the fact that territory was appropriated unlawfully weighs heavier and therefore effective control does not constitute a sufficient ground for legal authority (Ibid.). As they are not important for our case I will ignore cases of appropriation of formally unowned territory, cases of changes in territory in mutual agreement, appropriation of newly formed territory through natural events and some other special cases.
These rather abstract principles leave us with some but little useful criteria to apply to the case of Israel. Regarding the founding of the State of Israel, some argue that applying the Uti Possidetis Juris principle would ultimately result in a Jewish Homeland consisting of the whole area of the former British Mandate of Palestine, including the Westbank/ Judea and Samaria (WB/JS).1 This results in a position that claims that the areas in question are, at least in part, part of the State of Israel and the territories therefore not occupied but rather disputed at max (Bell/Kontorovich 2016). The other camp argues that the international community has later on agreed on the founding of a Palestinian state with the WB/JS as one of its core lands. As the State of Israel has been established, a substantial change of circumstances has taken place and the new borders shall be established in negotiations and a final agreement. As the territories in question are part of a future Palestinian state to be established, they are considered under Israeli occupation since they fell under Israeli control in 1967. This position is shared by the majority of the international community and, therefore, reflected in most UN resolutions addressing the issue (Ben-Naftali et al 2005).
The interpretations of international law also differ regarding the Six-Day War of 1967 that resulted in Israel gaining effective control over, among others, the WB/JS. While some argue that the Israeli attack on Egypt in 1967 was a preemptive strike and Israel accordingly acted in self-defense, others doubt this. This also raises questions with regard to the legality of the “occupation” of the territories that Israel gained control over as a consequence to its military victory. While some argue that military occupation or even annexation might be legal for the defending state in cases of self-defense and therefore Israeli control over the WB/JS, the Golan and the whole city of Jerusalem is legal, others deny this (Schwebel 1970; Zemach 2015). Another important aspect in this regard is the legal status of the territories in question prior to Israel gaining control over it. When Israel conquered the territories and East Jerusalem 1967, they were under Jordanian rule, which had occupied it in an offensive and illegal war against Israel in 1948 and later annexed it unilaterally. The last time that the WB/JS had been under rightful sovereignty was when the Ottomans ruled it as part of their empire. As a consequence, when Israel took control over the WB/JS in 1967, it gained control over a piece of land that was legally unowned, as the Ottoman Empire no longer existed and turkey, the legal successor of the ottomans, had given up its claims to the land (Bell/Kontorvich 2016: 649).
Going into some of the details of the legal aspects and the history of the founding and territorial developments of the State of Israel is necessary in order to develop an understanding of the territorial issues at stake in this case. The respective questions mostly surround the two historical sections we have touched upon above. They are, First the process that led to the founding of the state of Israel in 1948 and second the expansion of Israeli territorial control as a result of the Six-Day War in 1967, which mainly shapes the discussions on today's territorial disputes between the two parties.
(Legal) history of the founding of the state of Israel in 1948
For the beginning let us take a closer look at the most important legal issues regarding the founding of the State of Israel in 1948. Before the state of Israel was founded on May 14, 1948, the land had last been part of a sovereign state when it still belonged to the Ottoman Empire. Britain seized control of the land that would eventually become “Palestine” during World War I, consolidating its control by 1918, before the idea of creating mandates had crystallized. In 1917 the British government had announced support for the establishment of a "national home for the Jewish people" in Palestine, a region of the Ottoman Empire with a small minority Jewish population. The declaration was contained in a letter dated 2 November 1917 from the United Kingdom's Foreign Secretary Arthur Balfour to Lord Rothschild, a leader of the British Jewish community and passed on to the Zionist Federation of Great Britain and Ireland. The text of the declaration was published on 9 November 1917 and became known as the Balfour Declaration. In April 1920, with the region of Palestine under military rule, the allied powers met in San Remo, Italy, and decided to divide the Ottoman imperial territories between Britain and France. Britain received the mandates of Palestine and Mesopotamia, while France was awarded Lebanon and Syria. By July 1, 1920, Britain had appointed the first High Commissioner of the Mandate of Palestine. Its legal formalities as well as its territory were sorted out until 1923. While negotiations with Turkey, the Ottoman Empire's legal successor, dragged on, the Council of the League of Nations formally approved the Mandate, giving it a legally binding international status. As unanimously approved by the Council, the mandate included main parts of the Balfour declaration, recognized the grounds for the Jewish people reconstituting their “national home” in Palestine, and charged Britain with establishing the Jewish home. Ultimately, the British decided to award the eastern three-quarters of Palestine — better known as Transjordan or Transjordania — to the former king of Iraq and member of the Hashemite family Abdullah ibn Husain, whom they appointed Emir of Transjordan on April 1, 1921. While Transjordan enjoyed complete local autonomy and minimal British oversight, it remained formally part of the mandate of Palestine until Britain recognized the independence of the Hashemite Kingdom of Jordan as well as the termination of the Palestine mandate there, in 1946. However, it was the western quarter of the mandate that was from there on regarded as the future home of the Jewish state.
Jewish migration into the mandate territory, occurring in the face of rising antisemitism and pogroms in Eastern Europe, had given rise to tensions between Arabs and Jews in the decades before the founding of the state of Israel. Arab, (not Palestinian)2, nationalism, often paired with a vibrant antisemitism, rejected the idea of a Jewish homeland in the mandate territories while the Zionist idea motivated Jews from around the world to settle in the “ancient homeland”. Anti-Jewish pogroms (1920, 1921, 1929, 1936- 39)3 under the leadership of the Amin al-Husseini, Grand Mufti of Jerusalem and later Nazi-Collaborator, led to the founding of the Hagana, a Jewish militia tasked with the protection of Jews in the mandate territory. The rising tensions soon led to the idea of another partition of the territory. While the British soon abandoned the idea of partition and favored the geographic unity of (western) Palestine together with strict limitations on Jewish immigration and property rights, the United Nations picked the plan up. After the Jewish right-Wing militia Irgun initiated the 1946 Bombing of the King David hotel that served as the central command of the British army in Palestine, the international community moved to find a solution for the crisis. The well-known 1947 „Partition-Plan“, laid out in United Nations General Assembly Resolution 181, envisioned a Jewish and an Arab state in (western) Palestine. Soon after the adoption of the “UN-Partition-Plan”, Jewish militias began to secure the land that was envisioned as the future Jewish state. In this context, acts of direct and indirect displacement of Arab villagers were committed, including massacres against civilian populations.4 On the eve of the British withdrawal, on May 14, Jewish authorities declared the independence of the Jewish state in Palestine, called Israel. Arab authorities, while rejecting the Jewish state, did not declare or otherwise move to create an Arab state in Palestine.
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1 To describe the territory in question, I will use the abbreviation WB/JS, referring to both terms, Judea and Samaria / the Westbank. The common term used in Israel, including by the Israeli government, is Ezor Yehuda VeShomron, translating to Judea and Samaria. Samaria corresponds to part of the ancient Kingdom of Israel, also known as the Northern Kingdom. Judea corresponds to part of the ancient Kingdom of Judah, also known as the Southern Kingdom. The Arab term for the area is ad-Diffah I-Garbiyyah, translating to the West Bank. This name was given to the territory west of the Jordan River that fell, in 1948, under occupation and administration by Jordan, which subsequently annexed it in 1950.
2 At this time the Arab population of the mandate territory did not identify as Palestinian but rather as Arab Iraqi or Syrian. The emergence of a Palestinian identity is mostly dated to somewhere between 1920-30 (Morris 1999: 28-36)
3 The Anti-Jewish Massacre of Hebron (1929) alone left 64 Jews killed and led to the expulsion of the Jewish community from the city.
4 The massacre of Deir-Yassin left around 110 Arab villagers killed, among them ten Arab fighters.