Monday 30 April 2018

Territorial disputes: the Israel-Palestine difference (Part 6) [Post 46]

Our last post introduced the “colourable claim” in the context of TERRITORIAL DISPUTES. In particular, we aim to determine WHO should be included in case of peaceful negotiations to solve the Israel-Palestine dispute. In other words, WHO counts?

 


 

In brief, a party has a colourable claim if prima facie they have the right to claim sovereignty, that is to say they appear to have a probable cause to support their intended right to claim. REMINDER: a right to claim (admissibility stage) is different from saying that they have a right to sovereignty (substance of the case).
 

It is important to make clear that because a colourable claim recognises surface legitimacy to claim sovereignty, it does not need to be the case that the sovereign States or the population of the third territory have claims sufficiently equal in strength to give them roughly equal claims in respect of the third territory. The Israel-Palestine difference presents two main parties: Israel (sovereign de jure and de facto) and Palestine (sovereign de facto) and both argue about sovereignty de jure and de facto over the same territory (or part of the territory to be more precise).
 

It is indeed in the negotiations when the parties may discuss the weight of their claims. It is in the negotiations they will present evidence (facts, law, politics, finance, history, etc.) and discuss whether they agree or disagree with their counterpart and why.
 

Each particular ground for a colourable claim needs exploration. In broad terms, a colourable claim can be based on: 1) historical entitlements; 2) the legal status of these claims; and 3) moral considerations. NOTE that this list is not exhaustive and only includes some of the most common examples in sovereignty conflicts.

 

Today’s post introduces the first ground for a colourable claim: HISTORICAL ENTITLEMENT.

A colourable claim is based on historical entitlements when any of the claiming parties bases its right to claim on past facts related to the third territory and their intention to be its sovereign. These past facts can be related to actual occupation—for instance, effective occupation. But they do not exclude claiming parties that do not currently occupy the third territory. However, in the event they did not occupy the third territory, their continuous intention to do so would be enough to grant them a colourable claim. That is because they may have been removed or expelled from the third territory. The Israel-Palestine difference is a clear example of two parties continuously arguing about the sovereignty (de jure) over the same territory when in actual facts (sovereignty de facto) one of these populations lives there and the other one argues forced removal.
 

Effective current occupation or past occupation and continuous intention to occupy the territory, they may have a basis strong enough to have a reasonable chance of being sovereign of that third territory. In other words, the facts they use to support their right to claim sovereignty may be proven in the negotiations. It is the same kind of test used in British law to determine whether there is a possible cause to move forward—i.e. if there is a case to answer.

 

Tomorrow, the second ground for a colourable claim: legal status.

 

NOTE: based on Chapter 6, Núñez, Jorge Emilio. 2017. Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue. London and New York: Routledge, Taylor and Francis Group.

 

Jorge Emilio Nunez

Twitter: @London1701

30th April 2018

Friday 27 April 2018

Territorial disputes: the Israel-Palestine difference (Part 5) [Post 45]


Time to untangle the Israel-Palestine difference. The last four posts introduced very briefly the background situation of this TERRITORIAL DISPUTE.




 
With the previous case studies part of the TERRITORIAL DISPUTES series (so far Kashmir, the Falkland/Malvinas islands, and Gibraltar), we covered population, territory, government and law and how to address these conflicts by means of the EGALITARIAN SHARED SOVEREIGNTY.
On this occasion, the Israel-Palestine difference calls for a prior clarification: who counts? For some in Israel, sovereignty over certain areas does not need any discussion with Palestinians. For some in Palestine, sovereignty over the same areas does not need discussion with Israel. Each of these parties consider the land to be theirs and the opponent does not have any legitimate claim.

In domestic law (and this is applicable to international relations too) before going into the negotiations to solve any conflict it is imperative to decide who will be able to be part of them. In other words, who is a legitimate claiming party? This has to do with the “admissibility” steps prior to any negotiation or discussion. In simple terms, if I do not recognise you to have right to claim over “X” I will not discuss who owns “X.” So far this long standing difference has been in a legal and political limbo. Yet, if we were finally reasonable and wanted a peaceful end to the dispute, who counts? Who can be part of the discussions about the sovereignty over the disputed territories?

The usual grounds in international law to acknowledge legitimacy when disputes of the kind we see here are effective occupation, consent by the other agent in the dispute, consent by other States, and/or consent by the international community. Without entering into too much detail about them (simply to avoid making this post too academic and littered with technical jargon), it is easy to see that Israel and Palestine dispute these grounds for different reasons in relation to their opponent. For example, Palestinians do not have effective occupation and therefore, have no right to claim. Israel does not count with the consent of the other agent in the dispute (Palestine) and most of the regional neighbours; hence, Israel does not have any right to claim sovereignty. And so on…

The issue, I believe, is that the usual grounds for legitimacy do not capture the whole complexity of Israel-Palestine difference. In my latest monograph (Núñez 2017) I develop the idea any claiming party in a sovereignty conflict should have what I call a “colourable claim.” The expression comes from the domestic Courts in the US and, to an extent, in Scotland.

In basic terms, any party claiming sovereignty (whether Israel or Palestine) must have a valid reason to claim. That reason should be “colourable” enough to prove that their intended rights are at least sufficiently plausible to be acknowledged, and they can be based on any reasonable circumstances—e.g. political, historical, legal, geographical arguments to name a few. For example, in the case of the Falklands/Malvinas islands dispute it would be unreasonable for Russia to participate in the negotiations in relation to their sovereignty since they do not have any colourable claim over that territory.

I will introduce next time more details about the colourable claim and its different grounds. I aim to show how and why both Israel and Palestine have the right to claim sovereignty. The reader should not I refer to the RIGHT TO CLAIM SOVEREIGNTY and not SOVEREIGNTY itself. Remember a right to claim anything is prior to having the right acknowledge. First, we have to prove we can claim (admissibility). It is only after this step we can argue who has the right (the substance of the case).

 
NOTE: based on Chapter 6, Núñez, Jorge Emilio. 2017. Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue. London and New York: Routledge, Taylor and Francis Group.

Jorge Emilio Nunez

Twitter: @London1701
 
27th April 2018

Thursday 26 April 2018

Territorial disputes: the Israel-Palestine difference (Part 4) [Post 44]

TERRITORIAL DISPUTES like the Israel-Palestine difference in which several international agents claim sovereign rights for different reasons over the same piece of land are not uncommon. They all have a particular feature: their solution assumes a mutually exclusive relationship amongst competing parties (in this case, Israel and Palestine). That is because the common understanding (I would say, misunderstanding) is that the sovereignty over the third territory can be acknowledged to only one of them. Indeed, sovereignty is often regarded as an absolute concept (that is to say, exclusive, and not shareable).



 

The Israel-Palestine difference, as it stands, is another clear example of a zero sum game, with many negative outcomes of different sorts (e.g. social struggle, tension in international relations, refugee crisis, and threat to local, regional and international peace). Thus, while these conflicts are in principle confined to specific areas and start with negative consequences primarily for the local population, they tend quickly to expand to the regional and—even—the international level (e.g. effects on international price of oil, arms trafficking, terrorism, war). There are many issues at stake domestically and internationally.

 


 

We have already reviewed some academic articles and research about the Israel-Palestine difference in this series. Today’s post includes below articles from the media covering this territorial dispute.

Before we start with the articles, I would like to reiterate two things I have already posted before when we introduce other TERRITORIAL DISPUTES and are constant variables that work against viable solutions.

“In all cases, although this sovereignty conflict has been and is object of study of many sciences—law, political sciences, international relations, only to name a few—these sciences do not share their developments and both different approaches and different languages were applied. Indeed, although multi and inter-disciplinary studies are promoted in speeches everywhere, it is more a nominal aim rather than an actual reality.”

“I realised that the answer was very simple. Some problems are never solved because most look for more problems, problems within a problem, or just simply give up or are so self-centred they think that problem will not affect them and hence, why would they even think about it. Ergo, the answer came to me: some problems like [the Israel-Palestine difference] are never solved because people (or their representatives) do not look for a solution.”

 

International media

Israel-Palestine From Both Sides of the Mirror

The New York Times

“Living under military occupation meant coping with the shooting of my best friend in high school, turning a fearful blind eye when seeing soldiers beating a Palestinian boy with a baton, rescuing my husband from the grip of soldiers on a cold winter night, contending with my 10-year-old son’s night terrors after weeks of relentless bombardment, not being allowed to enter the city of my birth, Jerusalem, and living in daily anguish knowing that my people remain refugees after more than 70 years and have lived under siege for decades.”

“The Israeli-Palestinian conflict is still unresolved. Occupation is damaging to Israel, but even a dovish Israeli government proved unable to find agreement with the Palestinians. The “creeping status quo” is hurting both sides. It moves in a dangerous direction. It urgently calls for courageous leadership on both sides to resolve it.”

 

May Is Likely to Be an Ugly Month in Gaza

Bloomberg

“One of the most densely populated places on earth, Gaza is now barely habitable. Hunger is rampant. Water is undrinkable. Unemployment is close to 50 percent. Health-care is scanty at best. Electricity is available just two to four hours per day. The once-beautiful seacoast is now a giant sewer. And there’s virtually no way in or out of the territory which, since a violent takeover in 2007 by the Islamist faction Hamas, has been under a lockdown by Israel and Egypt.”

 

Outrage Grows As Israel Rules Out Inquiry Into Shooting of Palestinian ‘Land Day’ Protesters

The Independent

“Hamas, Gaza’s dominant Islamist movement which is designated a terrorist organisation by Israel, said five of those killed were its members, though Israel says eight of the men were part of Hamas.”

 

The media in the region (same facts, different perceptions)

Israel Drops Leaflets Warning Gazans Not To Approach Border

Israel Hayom (Israeli newspaper, largest daily circulation in the country)

“Israel dropped leaflets in Gaza strip on Friday warning Palestinians not to approach its border as the military braced for fresh clashes along the frontier.”

“Last week’s border protest was dubbed the “firebomb campaign” and saw Palestinian demonstrators hurl thousands of Molotov cocktails at Israeli troops near the border.”

 

Hamas Regrets Security Council Not Condemning Israel

The Palestine Chronicle

“Hamas regrets the failure of the UN Security Council to condemn Israeli violence against unarmed Palestinians, the group said Saturday.”

 

Health: 40 martyrs and 5511 injured since the start of the march of return (in Arabic)

Amlalommah (online newspaper from Gaza)

“According to the Palestinian Ministry of Health, 40 Palestinians have been shot dead by the Israeli occupation since the beginning of the Great Al-Aqsa marches on the borders of the Gaza Strip until now, and 5511 others were injured and gas suffocation.”

“The Palestinians will continue the march of peaceful return, which began on 30 March on the eastern border of the Gaza Strip, and will culminate on May 15, "Palestinian Nakba Day", in order to demand the return of Palestinian refugees to the homes they were abandoned.”

 

Two last articles exploring solutions

(I am indebted to one of the readers for his help with this. Thanks Jeff!)

 

Jorge Emilio Nunez

Twitter: @London1701

26th April 2018

Wednesday 25 April 2018

Territorial disputes: the Israel-Palestine difference (Part 3) [Post 43]

The Israel-Palestine difference has many issues at stake. “TERRITORIAL DISPUTE” is the usual nomenclature used by legal and political sciences to refer to these kinds of conflicts. Yet, the label does not show the complexity this and many other differences have. This is not only a question about territory but includes people, government and law, domestically, regionally and globally. There are many remedies that could be applied. The previous post presented a series of articles which summarise the situation and the official position of Israel and Palestine.

 


 

Today’s post centres the attention of one of these parties: people. What do Israelis and Palestinians want?

A Joint Poll (published on 25th January 2018) conducted by the Tami Steinmetz Center for Peace Research (TSC), Tel Aviv University and the Palestinian Center for Policy and Survey Research (PSR) in Ramallah, with funding from the European Union (EU), the Netherland Representative Office in Ramallah, and the UNDP office on behalf of the Representative Office of Japan to Palestine.
 

Key Results (my capitalisation):

  • Support for the TWO-STATE solution stands at 46% among Palestinians and Israeli Jews. In June 2017, 53% of Palestinians and 47% of Israeli Jews supported that solution. Among Israeli Arabs, support for the two-state solution stands today at 83%.

 

  • Other solutions considered (fewer people agreed): one state with equal rights, one state without rights, and expulsion or “transfer.”

 

  • 40% of Palestinians and 35% of Israeli Jews (a three-point increase from the June survey) support a PERMANENT PEACE AGREEMENT package, along with 85% of Israeli Arabs.

 

  • The skepticism about the package appears closely related to serious doubts about FEASIBILITY.

 

Mode details available at:

 

It does result interesting to know what Israelis and Palestinians think about this territorial dispute. In particular, because they are the ones that live in that region and therefore, any decision affects them directly (and their future generations). This study (like any other) has a main flaw: although it gives us a glimpse on what Israelis and Palestinians may think about the territorial dispute, it remains questionable to argue that this is what most of them want. After all, like any study, it is based on a sample. Yet, as an interpretative tool it is indeed thought provoking.

It would be desirable to have a more in depth questionnaire including clear conceptual references for the respondents, a broader sample, and a more in detail analysis. For instance, a suggestion: to define clearly how the two-state formula would materialize? I propose to follow the EGALITARIAN SHARED SOVEREIGNTY model in which both parties (Israel and Palestine) would be equal sovereigns with implications related to territory, people, government and law. The formula secures in theory and in practice equal standing for both Israel and Palestine in many senses (some of them previously presented when we introduce Kashmir, the Falkland/Malvinas islands, and Gibraltar as case studies in this series about TERRITORIAL DISPUTES).

 

Jorge Emilio Núñez

Twitter: @London1701

25th April 2018

Tuesday 24 April 2018

Territorial disputes: the Israel-Palestine difference (Part 2) [Post 42]

 


There are many academic and non-academic articles in many languages about the Israel-Palestine difference. Today we focus on academic studies about this TERRITORIAL DISPUTE.

Previous post about the Israel-Palestine difference (part of the TERRITORIAL DISPUTES series):


Today’s post include several interesting articles and studies that offer a variety of views about the same difference.

The first document introduces the key elements in law and realpolitik. The factsheet by BICOM (British Israel Communications and Research Centre) offers a very brief insight into the Israel-Palestine difference focusing on Jerusalem.

The second article introduces “Donald Trump’s Generous Offer on Jerusalem.” Until very recent, Jerusalem was not a de jure capital for Israel or Palestine. At best, it was the de facto capital of Israel. The article explores Trump’s recent announcement.

The third article presents a research conducted by CIA back in 1978. It only came to the open in 2013. “Jerusalem: Some Aspects of a Complex Problem” concluded compromise between the opposing parties is unlikely.

The fourth article reviews the significance of the sovereignty question which is legal and political in nature. A concept that can play a role in a future solution by having an ample conception of “sovereignty”: internationalization.

“Is Jerusalem Really Negotiable?” brings a fifth analysis. The positive outcome seems to be the acknowledgement the Israel-Palestine difference is not a zero sum game. Yet, negotiation is an international dispute settlement procedure that cannot guarantee a solution.

Last but not least, I include a link to a final article that presents the US views about the dispute by examining presidential speeches from Clinton to Obama.

 

Briefing by BICOM (British Israel Communications and Research Centre)

History and politics of Jerusalem (2017)

“Israelis and Palestinians both claim Jerusalem as their capital. The State of Israel has proclaimed Jerusalem to be the “undivided, eternal capital of Israel” and maintains its primary governmental institutions there. The Palestine Liberation Organisation (PLO) ultimately foresees the eastern part of the city as the capital of the State of Palestine. The international community has accepted the de facto application of Israeli law in West Jerusalem while the claim to internationalise Jerusalem is not seriously raised anymore.”

“There are no legal documents that clearly resolve the status of Jerusalem. The Israeli-Palestinian Declaration of Principles (DoP), signed between Israel and the PLO in September 1993, leaves open the status of Jerusalem. Article V of the DoP says that the permanent status of Jerusalem is one of the issues to be agreed by both parties in bilateral negotiations.”
History and politics of Jerusalem (link to complete article)

 

Donald Trump’s Generous Offer on Jerusalem

Editorial

Jerusalem Quarterly

“We write this editorial as Israel celebrates, and the rest of the world condemns, Donald Trump’s declaration of U.S. recognition of Jerusalem as the capital of Israel. It is pertinent to recall on this issue Arthur Koestler’s famous quip, made a century ago in reference to the Balfour Declaration, that “one nation solemnly promised to a second nation the country of a third.””

“Two unintended consequences emerge from the new U.S. position: first, it brings the status of Jerusalem back to the limelight, after it was pushed to the back burner by the Syrian and Yemeni wars; and second, it has clearly placed the United States outside of the international consensus with regard to any future peace process over the status of the city, or indeed within the Arab-Israeli conflict. This has opened the door to other global and regional actors, particularly Europe, Russia, and Turkey, as future mediators.”

“Underlying the objections of the majority of countries, including the United States until recently (that is, until Trump’s election), to Israeli control of Jerusalem has been UN General Assembly resolution 181, which affirmed the partition plan for Palestine and the creation of an international zone in Jerusalem known as the corpus separatum. That notion established in the city a special international regime in which both Palestinians and Israelis would have a dual national identity in the city. Given the slow death of the peace process and the de facto withdrawal of the United States from a mediating role, is it time – seventy years later – to revive this plan for Jerusalem?”

Donald Trump’s Generous Offer on Jerusalem (link to complete article)

 

Jerusalem: Some Aspects of a Complex Problem

A research Paper

(Original: 1978. Approved for release CIA historical collections division November 2013)

There are some Israelis who would give up the Golan, some Israelis who would give up the Sinai, and some would give up the West Bank. But I do not think that you can find any Israelis who are willing to give up Jerusalem."-Mayor Teddy Kolleri (July 1977).”

“The oficial position of the PLO toward Israel has continued to be insistence on the replacement of the state of Israel with a multiracial secular state.”

In sum, the positions of the parties on the Israelis have not significantly altered the status of question of sovereignty, over Jerusalem are irreconcilable. Without dramatic and fundamental form political changes in Israel, the Arab states, or both, any compromise on Jerusalem appears unlikely.”
Jerusalem: Some Aspects of a Complex Problem (link to complete article)

 

Sovereignty in Jerusalem

Catholic University Law Review

States recognizing Israel have not recognized Israeli sovereignty over either the western or eastern sector of Jerusalem, despite nearly half a century of Israeli control in West Jerusalem, and nearly thirty years in East Jerusalem.”

“Regarding West Jerusalem, states maintaining diplomatic relations with Israel have avoided locating their embassies there, placing them instead in Tel Aviv, precisely because they consider the status of Jerusalem to be undetermined. As for East Jerusalem, objection to Israel's control is exhibited through collective criticism of Israel at the United Nations.”

“To assert its legitimacy in Palestine, Israel relies primarily on the 1947 General Assembly resolution, but this resolution yields no argument for sovereignty in Jerusalem,75 since the resolution proposed internationalization.”

“From the standpoint of territorial right, as this notion is understood in international law, Palestine has a valid claim to Jerusalem. That does not mean that it could not agree to a solution whereby the City would be internationalized, or whereby it would be divided or controlled jointly. Jerusalem is one issue among several to be resolved between Palestine and Israel, and the parties are free to make concessions on one issue in order to gain an advantage on another.”
Sovereignty in Jerusalem (link to complete article)

 

Is Jerusalem Really Negotiable?

Jewish Political Studies Review

“Despite the many proposals for negotiating the Jerusalem issue, any agreed plan for resolving the future status of the Holy City has defied generations of negotiators.

Israel’s formal position proved paradoxical. While the Oslo Agreements in September 1993 made Jerusalem one of the subjects for the permanent status negotiations between Israel and the Palestinians, Prime Minister Yitzhak Rabin made clear in his final Knesset address in October 1995 that Jerusalem was to remain united under Israeli sovereignty. But by formalizing past understandings with the Hashemite Kingdom of Jordan over its role in the administration of the Muslim holy sites, through instruments like the Washington Declaration, he appeared to be drawing a distinction between sovereignty over Jerusalem, which in his view had to be retained by Israel, and an international administrative role for the holy sites, which he was prepared to explore with Israel’s eastern neighbor.

Thus, while insisting on Israeli sovereignty over a united Jerusalem, he did not view the issue of Jerusalem as a “zero sum game.” 


 

Final article for the reader (ref. presidential speeches from Clinton to Obama)
Jerusalem in the Courts and on the Ground (University of Missouri) [link to complete article]

 

Jorge Emilio Núñez

Twitter: @London1701

24th April 2018