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
Twitter: @London1701
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