Israel and the Territorial Integrity of States
| Publication year | 2021 |
Israel and the Territorial Integrity of States
Johan D. van der Vyver
Emory University School of Law
The territorial integrity of States has come to be accepted as a fundamental principle of international law. The secession of a region from an existing State will be accepted in very special circumstances, but the acquisition of a territory that is included within the national borders of a State is strictly prohibited. The territorial integrity of Palestine is the central theme of this Article. The establishment of Israeli settlements in Palestine and the construction of a wall/fence by Israel within Palestinian territories has been condemned in terms of the Geneva Conventions of 12 August 1949 and by an advisory opinion of the International Court of Justice, respectively.
In January 2020, former President of the United States, Donald Trump, with Israeli President Benjamin Netanyahu by his side, announced a "peace plan" in the Israeli-Palestinian dispute that will constitute a "win-win opportunity for both sides." The "peace plan" included Israeli control of a unified Jerusalem as its capital, the annexation of Palestinian land with the Jordan River as its Eastern border, and sovereignty of Israel over Jewish settlements in Judea and Samaria.
It is argued that the Trump/Netanyahu proposal is not a "peace plan" since Palestinian authorities were not included in its design and that the taking of Palestinian land by Israel clearly constitutes a blatant violation of the territorial integrity of Palestine. Palestine has been recognized as a State by 138 Member States of the United Nations, has been admitted as a Member State of the International Criminal Court (ICC), and although the Prosecutor of the ICC has raised certain concerns about the territorial confines of Palestine, a Pre-Trial Chamber of the ICC recently decided that its territorial jurisdiction extends over the entire Palestinian territory occupied by Israel, including Gaza, the West Bank, and East Jerusalem.
[Page 596]
In January 2020, President Donald Trump announced that he had a peace plan that would resolve the Israeli-Palestinian conflict; on January 28, with Prime Minister of Israel Benjamin Netanyahu at his side, details of what Donald Trump called a "win-win opportunity for both sides" were made public at a White House ceremony.1 It appeared from the briefing that the "peace plan" was not one which Donald Trump had designed but was one that simply endorsed what Netanyahu had in mind; and though it was presented as a "peace plan," Palestine was not present or even consulted.2
The substance of what Prime Minister Netanyahu proposed, and President Donald Trump endorsed lock, stock, and barrel, included Israeli control of a unified Jerusalem as its capital and the annexation of vast stretches of Palestinian land.3 Israel will establish the Jordan River as its eastern border and claim sovereignty over Jewish settlements in the West Bank, referred to in Israel as Judea and Samaria.4
The Netanyahu resolve presented to the world as Donald Trump's "peace plan" violates the territorial integrity of Palestine and as such constitutes a blatant violation of international law. Although the border dispute between Israel and Palestine is still ongoing, Palestine is recognized as a State by 138 Member States of the United Nations5 and was admitted on April 1, 2015 as a State Party of the International Criminal Court (ICC).6 Ratification of the Rome Statute of the International Criminal Court (Rome Statute) and membership of the Assembly of States Parties are confined to States and admitting Palestine as a State Party of the ICC is therefore an important step in recognizing Palestine as a member of the international community of States.7
[Page 597]
In Part I, this Article will highlight the historical foundation of the territorial integrity of States and the importance attached to national borders in international law. Part II is focused on the manifestations of territorial integrity of States, while noting (a) that international law is not favorably disposed to secession of a territory from existing States, as evidenced by its responses to secessionist movements in Katanga, Biafara, the Turkish Republic of Northern Cyprus, the northern region of Mali known as Azawad, and the province of Catalonia in Spain; and (b) that the acquisition by State A of part of the territory of State B through military invasions, conquest, annexation, or occupation has come to be prohibited by international law in no uncertain terms. Violations of the principle of international law proclaiming the territorial integrity of States in instances such as the invasion of Manchuria in China by Japan, and the annexation of certain northern provinces of Georgia, and of the Ukrainian province of Crimea, by the Russian Federation, are dealt with in Part III.
This, then, brings us in Part IV to the occupation and taking of Palestinian territories by Israel with emphasis on the reasons submitted by Israel for establishing Jewish settlements in Palestinian territories, and the advisory opinion of the International Court of Justice (ICJ) and judgments of Israeli courts regarding the building of a security fence by the Israeli Defense Force on Palestinian land.
Dealt with in Part V is the recent question of the territorial confines of Palestine that became an issue in the ICC following a referral by Palestine of the situation in Palestine for an investigation by the Office of the Prosecutor of the ICC.8 Following a preliminary investigation, the Prosecutor decided that reasonable grounds do exist to proceed with a full-scale investigation but requested a Pre-Trial Chamber of the ICC to confirm the "territory" over which the ICC may exercise jurisdiction in Palestine.9 Since territorial confines are an essential component of statehood, the concerns of the Office of the Prosecutor have important implications relating to the statehood of Palestine.
The sanctity of post-World War II national borders has come to be accepted as a fundamental principle of international law.10 It is perhaps important to note
[Page 598]
that the disposition of post-colonial African States played an important role in proclaiming what has come to be referred to in international law as the territorial integrity of States.
During the pre-World War II era, when colonialism was widely imposed on African communities, national borders were established quite irrationally by the colonizing countries of Europe, separating members of particular tribal groups into different colonized countries and including within the same colonized countries tribal groups that were particularly hostile toward one another.11 Following World War II (1939-1945), when decolonization became an important focus of international law, there were important voices in Africa to redraw national borders that would be more sensitive to group alliances and rivalries between population groups on the African continent.12 At its very first meeting, the Organization of African Unity, now the African Union, sensitive to the chaotic situation that might emerge from efforts to redraw the irrational national borders, played a leading role in emphasizing the salience of existing frontiers.13 Its Charter of 1963 prompted Member States to "solemnly affirm and declare" their "respect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence."14 A Resolution of the Assembly of Heads of State and Government adopted at its first ordinary session held in Cairo in 1964 called on all Member States "to respect the borders existing on their achievement of national independence."15
Subsequently, the principle of upholding the territorial integrity of states has been emphatically endorsed in other international instruments, including the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States, which proclaimed without exception "that any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a State or country or at its political independence is incompatible with the purposes and principles of the Charter [of the United
[Page 599]
Nations]."16 The Helsinki Final Act17 likewise endorsed the principle of "respect for the sovereignty and territorial integrity of each State and for its inalienable right to independent existence."18 It has now come to be accepted that "the principle of territorial integrity is an important part of the international legal order enshrined in the Charter of the United Nations[.]"19
The principle proclaiming the territorial integrity of States (a) denounces, as a general rule, the secession of a territory from an existing State,20 and (b) strictly prohibits the acquisition of a territory by force.21
A. Secession
International law is in principle not favorably disposed toward the breaking up of existing States, particularly if the purpose of disintegration of a plural community is allegedly to establish homogenous ethnic, religious, or linguistic communities. The international community of States has been quite adamant in censuring attempts at secession in instances such as Katanga, Biafra, and the Turkish Republic of Northern Cyprus,22 and more recently the northern regions of Mali known as Azawad,23 and the province of Catalonia in the northeastern corner of Spain.24 As explained by Vernon van Dyke, "the United Nations would be in an extremely difficult position if it were to interpret the right to self-
[Page 600]
determination in such a way as to invite or justify attacks on the territorial integrity of its own members."25
It must be emphasized that the right to self-determination of ethnic, religious and linguistic...
To continue reading
Request your trial