The Israel-Palestine difference, the colorable claim and the legal basis argument
The post today introduces the second ground for a colorable claim: law.A colorable claim is based on the legal status of these claims when any of the parties use or may use law to support their right to claim sovereignty. In this case, they may use international customary law or treaty law to support their position.
For instance, the case of one of the parties that did not have effective current occupation of the third territory but had continuously claimed sovereignty in international forums such as United Nations following international public law regulations.
Sumner (2004) brings an excellent article that covers TERRITORIAL DISPUTES before the International Court of Justice. An extract of the text and the link to the complete article below:
TERRITORIAL DISPUTES AT THE INTERNATIONAL COURT OF JUSTICE
BRIAN TAYLOR SUMNER (2004)
“Cases may come before the ICJ, an independent subsidiary organ of the United Nations, by referral through a compromis (special agreement) between two or more states, by a treaty provision committing disputes arising under the treaty to the court, or by the parties’ statements of compulsory jurisdiction. Under Article 38 of the Statute of the International Court of Justice (Statute), when deciding cases “in accordance with international law,” the court applies the following sources of law:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Furthermore, if the parties agree, the court may decide a case under equity principles, ex aequo et bono.Territorial claims before the ICJ usually fall within one of the above four categories.”
What does all this mean in relation to the Israel-Palestine difference?
The next lines center only on Jerusalem to keep it brief and, at the same time, to show the level of complexity.
Before Jerusalem’s partition, the city was part of the former British Mandate for Palestine.
The Partition Resolution: The UN General Assembly (Resolution 181) introduced a “separated body” (corpus separatum) for Jerusalem.Sovereignty (de jure and de facto) over that part of the former British Mandate for Palestine, with the exception of West Jerusalem, passed to Israel. The rest of the former British Mandate for Palestine: Palestinians have de facto sovereignty (not de jure).Israel’s occupation of West Jerusalem since 1948 has not been recognized de jure (arguably, most states accept Israel’s de jure sovereignty).
East Jerusalem is a separate issue according to UN Security Council Resolution 242:
“1. ii. Termination of all claims or states of belligerency and respect for and acknowledgment of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force; […]”
In short, the legal status of the complete area remains open. Meanwhile, both parties enforce by different means sovereignty de facto.
NOTE: This post is based on Jorge Emilio Núñez, “Territorial Disputes and State Sovereignty: International Law and Politics,” London and New York: Routledge, Taylor and Francis Group, 2020 (forthcoming)Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, “Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue,” London and New York: Routledge, Taylor and Francis Group, 2017.
NEXT POST: The Israel-Palestine difference, the colorable claim and the moral standing argument.
Tuesday 07th January 2020
Dr Jorge Emilio Núñez