Internationally recognized borders could be meaningless

By Ted Belman

When Russia Seized control of Crimea and then arranged for a referendum to justify making the Crimea part of Russia, I suggested that Israel should do likewise, i.e., hold a referendum on Area C of Judea and Samaria, to justify extending its sovereignty to it.

Now Eugene Kontorovich has also drawn a comparison in Crimea, International Law, and the West Bank published by Commentary Magazine.

The UN General Assembly voted 100 to 11 to continue to recognize Crimea as part of Ukraine. Thus Russia cannot rewrite Ukraine’s frontiers at will.

But, as many foreign-policy realists argued while Vladimir Putin was making his move, it is not all that clear why Crimea should belong to Ukraine in the first place. The substantial majority of the population is ethnically, linguistically, and religiously Russian. The majority of its population probably prefers to be ruled from Moscow rather than Kiev (though not by the 90-plus percent margin of the recent shotgun referendum). The territory is adjacent to Russia and has been part of Russia historically.

There is a legal doctrine, uti possidetis iuris (meaning “you possess under law”) which provides:

“When new countries emerge from old ones or from colonial empires, the last official international borders constitute the new boundary lines. It has been applied to the borders of new states around the world and recognized as a basic principle of international law by the International Court of Justice.”

Thus, by law, Crimea remains part of Ukraine. Similarly the last official international border of Palestine, i.e., the Jordan river by virtue of the League of Nations mandate, continue to apply.

Kontorovich goes on to explain:

“The disintegration of the Ottoman Empire in World War I led to the division of its territories in the Middle East. The core of the Ottoman Empire became the new country of Turkey, which, in turn, surrendered all Turkish sovereignty over Ottoman territory in the rest of the Middle East (not just Israel, but also modern-day Iraq, Syria, Lebanon, and Jordan). Instead of imposing their own sovereignty on the parts of the Ottoman Empire they conquered, Britain and France allowed the newly created League of Nations to transform these territories into “mandates.” The European states were committed to shepherding the mandates into new independent nation-states. The League did so pursuant to an explicit clause in its charter that authorized it to create such mandates out of the lands “formerly belonging to the Turkish Empire.”

In 1922, the League of Nations established a new “country” to serve as the Jewish national home. This was the Mandate for Palestine. Under certain provisions of the Mandate, Palestine was partitioned at the Jordan River to create the country of Transjordan (now called Jordan) on its eastern bank. After that, international frontiers of Mandatory Palestine ran from the river to the sea. The League of Nations Mandate for Palestine provides the legal basis not only for Israel’s borders, but for those of Jordan as well, and indeed for Jordan’s entire existence.

Israel is the state created in Mandatory Palestine. Thus under uti possidetis iuris, it inherits the Mandatory borders. The only question is whether anything has happened since the 1920s that legally modified these frontiers.

Three events are commonly cited as justifying the non-application of the uti possidetis doctrine. First was the UN General Assembly’s 1947 partition proposal, Resolution 181. Second was the partially successful 1948–49 Arab attempt to prevent the establishment of a Jewish state in Palestine, which led to the Green Line of 1949. Third was the UN Security Council’s response to Israel’s retaking of these territories in the Six-Day War.

The Partition Proposal

Resolution 181 did not, as many seem to think, “create” the Jewish state. That had been done on paper 25 years earlier by the League of Nations Mandate, and later through Israel’s declaration of independence and War of Independence—a struggle in which the UN did nothing to promote the survival of the fledgling state.

Resolution 181 proposed an elaborate seven-sector division of Mandatory Palestine, an idea the Jewish leadership was willing to accept, but that the Arabs rejected. The General Assembly Resolution did nothing to alter the Mandatory borders because the GA is not a world legislature: It has no legal power to make any binding rules, let alone redraw the borders of nations.

Indeed, the resolution itself explicitly recognizes that the Assembly has no power to legislate its recommendations. If the GA were to vote today to “partition” Ukraine, it would be similarly ineffectual. The 1947 plan was a proposal for a compromise that, if accepted by both sides, would have been binding, but which had no force in itself.

Israel declared independence on May 14, 1948, with a document that “proclaim[ed] the establishment of the Jewish State in Palestine, to be called the Medinat Israel.” Under the uti possidetis iuris principle, the borders of the new state were those of Mandatory Palestine. The new state was immediately invaded by all its neighbors, who succeeded in occupying much of its territory. But the 19-year-long occupation of parts of the Mandate by Egypt and Jordan did no more to change its borders than has Russia’s equally unprovoked aggression against Ukraine today. Indeed, if Jordan’s occupation changed Israel’s borders, surely Russia’s 20 or so years of controlling Transnistria should change Moldova’s borders and Turkey’s 40-year occupation of Cyprus should change that country’s borders.

The Green Line

Israel concluded armistices with its neighbors in 1949. These were not peace treaties. They were temporary agreements to stop shooting. The “Green Line” of 1949 was simply the demarcation of the separation between Israeli and Arab forces. Without establishing any sovereign border, it thereby preserved the Mandatory boundary. All of Israel’s armistice agreements reflected this, including the Israeli-Jordanian one: “The provision of this Agreement shall not in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations.” Other provisions also made clear that both parties recognized the Mandatory boundaries as the only international borders for Palestine. The only dispute was who would ultimately control it.

Thus the very document that formalized the Green Line specifically said it was not to be construed as a border, or anything other than a temporary line of separation between Israeli and Arab forces. When Israel expelled the Jordanian occupation forces after King Hussein attacked across the Armistice line during the Six-Day War, the need for such a separation came to an end.

President Barack Obama and his secretary of state, like so many others, use the phrase “1967 borders” to describe the Green Line; but it was explicitly not a border, nor was it created in 1967. Indeed, with the exception of Britain, no nation recognized Jordanian sovereignty over the territory of Mandatory Palestine during its 19-year occupation. When Jordan and Egypt signed peace treaties with Israel in 1979 and 1994, both nations expressly referred to the Mandate boundary as the current international border of Israel, demonstrating its continued relevance.

Resolution 242

The United Nations Security Council responded to the Six-Day War with its famous Resolution 242, which has set the basis for all subsequent action by the council. Before turning to the resolution’s text, we should note that, as was true of the General Assembly in 1947, the Security Council does not have the power to redraw preexisting national borders. Though the council has power under its charter to take certain “binding” decisions, those are limited to authorizing economic and military means to respond to breaches of the international peace; it cannot alter the underlying dimensions of UN member states.

No less important, Security Council practice requires the Council to refer explicitly to the textual source of its authority as Chapter VII of the UN Charter in order to make resolutions binding. The resolution does not include such a reference, showing that the Council understood its resolution to be nothing more than a recommendation.

Resolution 242 famously calls for “withdrawal of Israeli armed forces from territories occupied in the recent conflict.” This language was deliberately chosen by its drafters to reject demands that Israel withdraw from all territories it occupied, and instead leaves the scale of the withdrawal up to future diplomacy. The wording of 242 was drafted by the British delegation as a replacement for other versions that would have required leaving “all” the territories.

A vast literature has arisen to cope with the fact that the word the does not precede the word territories in that sentence, but like much discussion of the Arab–Israeli conflict, it puts questions concerning Israel in a unique legal universe. In fact, it is fairly easy to see whether using the language of territories would be a standard way for the Security Council to require complete withdrawal. I have identified 16 other resolutions demanding military pull-outs, of which four were prior to 1967. In each case, the demand for complete withdrawal is explicit, with language such as “withdraw from the whole territory” and “the territory” and with references to particular antebellum positions. The language of 242 is unique in the Security Council’s history, but consistent with its own drafting history and the document’s intentions. Thus reading 242 to require a complete withdrawal not only misreads the resolution, but also makes nonsense of 16 other important resolutions.

Some argue that 242 compels Israel to return to the Green Line, relying on the resolution’s preamble, which stresses the “inadmissibility of the acquisition of territory by war.” But that would be a strange way to require Israel to return their territorial seizures of 1949 to Jordan and Egypt. The next operative paragraph in 242, moreover, describes a withdrawal to “recognized boundaries.” The 1949 Armistice Lines were not “recognized boundaries” in any legal sense. They constituted nothing more than a stand-off.

So to recap: The League of Nations, acting pursuant to powers in its charter, established the territory of Mandatory Palestine in 1922, much as the Mandate system established the borders of most other Middle Eastern states. The UN General Assembly did not have the power to modify that territory with its 1947 Partition proposal. Nor did the pan-Arab aggression of 1948–49 and its subsequent reception by the international community.

To be sure, international sentiment has turned sharply against Israel’s control over much of this territory. But international law is not a popularity contest; if it were, Israel would have long ago been voted off the island.

None of this undercuts the common arguments for the creation of a Palestinian state. Those arguments are rooted in diplomatic and demographic considerations. But even if one accepts the idea that the Mandate gave Israel borders too large for the Jewish population, it does not therefore follow that the pan-Arab aggression of 1948–49 established presumptive or default borders. In fact, those can and should be defined only by mutual agreement between Israel and the Palestinians.

If one believes, moreover, that the vague doctrine of self-determination—which is generally not thought to entitle a people to an independent state—made an inarguable case for a Palestinian Arab state somewhere between the Jordan River and the Mediterranean Sea, uti possidetis would still be relevant. The doctrine make clear that the relevant boundaries have nothing to do with the 1949 Armistice Lines unless both parties agree they should.

Recall that when new states emerge, the doctrine dictates that their borders follow the last prior internal administrative division, such as state or provincial borders. Under the Mandate, Palestine was divided into six districts, no combination of which closely approximates the 1949 Armistice Lines. (For example, Gaza was lumped into one district with the entire Negev, while the area now called the West Bank straddled three different districts.) The 1993 Oslo Accords create three administrative divisions (Areas A, B, and C)—two under Palestinian jurisdiction and one under Israeli jurisdiction. Those lines make more sense under international law than the sum of the noncontiguous, illegal conquests by Egypt and Jordan in 1948–49.”

In the case of Israel, the international community wants to ignore the uti principle, and thus is asking for trouble:

“After all, if an internationally established mandatory border does not continue to abide for a new country, why should the arbitrary frontier of a totalitarian dictator?”

This means trouble for Israel also:

Russia’s quick takeover of Crimea—and, as of this writing, its incremental invasion of eastern Ukraine—also has significant political lessons for Israel about any potential agreement with the Palestinians. Russia’s dismemberment of Ukraine offers a frightening scenario of how a state of Palestine could continue effective activities against Israel in the wake of a peace treaty.

One of the main rewards promised to Israel for the creation of a Palestinian state in the West Bank and Gaza is that it would also give Israel internationally recognized borders. While these borders would be narrow, they would, it is said, enjoy the deep guarantee of international legitimacy. Nations would move their embassies to (West) Jerusalem. Israel would, as Tzipi Livni has said, be “put on the world map.” The perceived value of this deal stems from the view that in the 21st century, sovereign borders cannot simply be rewritten.

Crimea has proven that “19th-century acts,” as Kerry called them, are alive and well, and that the international community will do little to stop them. Consider Moscow’s methods for taking apart Ukraine.

First, it bided its time, waiting more than two decades. Of course, if a deal with the Palestinians lasts only that long before it is followed by new demands, it will have proved to be a disastrous bargain for Israel. Second, Russia focused on areas with significant concentrations of co-ethnic population. In those areas, it followed Hitler’s Sudetenland strategy of provoking riots and protests, and then protesting Ukraine’s response.

This is precisely Israel’s greatest fear: that after the euphoria of a peace deal, a newly emboldened Palestinian government, now with all the apparatus of a state, would begin stoking disorder among Israeli Arabs in the Galilee Triangle and Negev. Of course, Palestine would not be able to grab these territories in a single putsch, as Russia did with Crimea. Rather, it would seek to destabilize Israel, as Russia is now doing in Eastern Ukraine.

The Machiavellian goal would be to use Israel’s response to the fomented unrest in a kind of diplomatic jujitsu, to make the case that the Jewish state cannot be permitted to maintain sovereignty over its non-Jewish populace. Then would come the kinds of demands that have been afforded far too much respect when it comes to Russian claims in Ukraine—greater federalism, decentralization of power, all of which would be designed to empower disgruntled minorities who show greater fealty to the neighboring aggressor than to the state of which they are citizens. In such a situation, would the world rally to defend the internationally mandated borders when it showed so little appreciation for them in Israel’s case throughout so many decades?

No one with a serious understanding of international law asks if it is fair or just for Crimea to remain part of Ukraine, no matter the wishes of Crimea’s population. Entertaining such a question and making it part of the discussion would eventually lead to redrawing many of the world’s borders. As we have seen, the same principles that justify Ukraine’s claims to Crimea justify Israel’s claims to the West Bank.

Israel should not be too put out by the international community’s failure to apply its general rules to the Jewish state’s rights, for the Ukrainian crisis also shows the limits of those rules. Ukraine may enjoy international backing for its claims while Israel does not. But the Ukrainian crisis also shows that when it comes to action, the international community will be driven primarily by the exigencies and conveniences of the moment, not by considerations of legality or past promises. In the end, as has been the case since 1948, Israel will have to rely on itself.

Put more simply, if the mandatory border for Palestine, recognized by the League of Nations, is no longer recognized as such or subject to change, why would a new border recognized by the UN be any different?

Eugene Kontorovich is a professor at Northwestern University School of Law who specializes in international and constitutional law, a senior fellow at the Kohelet Policy Forum in Jerusalem, and a Lady Davis Visiting Professor at Hebrew University.

June 4, 2014 | 36 Comments »

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36 Comments / 36 Comments

  1. mrg3105 Said:

    USA’s border problem is covered in the US Constitution

    I assure you Darlin I don’t find Texas ]et al] border problems amusing. However I find you ” know it all” attitude laughable.

  2. Honeybee, you may find this funny, but I assure you it is not. When your house is in such a mess that people from the outside need to come to clean it up, its not funny.

  3. mrg3105 Said:

    USA’s border problem is covered in the US Constitution. I’ll deal with it later. I can only deal with one breach of the US Constitution problem at a time

    Poor Darlin, do I ask to much of you !!!!!!!!!!!

  4. For some reason my reply to nfarbstein says: June 10, 2014 at 12:44 pm hasn’t arrived here yet

    USA’s border problem is covered in the US Constitution. I’ll deal with it later. I can only deal with one breach of the US Constitution problem at a time.

  5. the principal of “uti possidetis juris” has been widely accepted and is accepted in almost every international treaty including and since the UN Charter.

    except “uti possidetis juris” is ‘customary law’ and not ‘treaty law’

    your Wiki definition

    No, I asked the previous posted if he used Wikipedia. I didn’t and if you looked, you will not find this definition in Wikipedia.

    In fact, it is not uncommon for legal concepts over time to alter their meaning or emphasis as new circumstances arise

    law is very much about words, and if law changed, so would the words; this is not the case though, it is?

    the right to self-determination must not involve changes to existing frontiers at the time of independence

    Now read this again, and think about it.
    Got it?
    Yes, the right to self-determination allows the determination of territorial borders adjustment to those IMPOSED on a given demographic by the previous colonisers. Otherwise what would be the point of de-colonisation?

    Despite it’s borders having been “administratively allocated to Ukraine by Khruschev,” these were international boundaries before independence.

    Ok, I’ll say it again. International borders can not be determined where their original establishment did not follow international law. I.e. you can’t take the shoes that don’t fit to ANY shoe shop and ask for a refund just because they sell ‘shoes’. You need to return to the ORIGINAL place of purchase.

    This is a very messy and complex process though. Which is why colonial powers simply instituted the “uti possidetis juris” and have been trying to enforce it ever since without much success.How many states created since the Second World War have remained conflict-free and retain same borders they were established in on their recognition of independence?

    How many states that existed during the Roman Empire, even the Holy Roman Empire, retain their borders…or even exist at all?

    Forget international law. It only works if there is an aircraft carrier battle group parked next to it.
    Would you like me to list how many legions Rome had to ‘keep the law’?

  6. I am not a lawyer, but I disagree with your assessment (either that or I don’t understand fully what you say).

    While originating in Roman Law, the principal of “uti possidetis juris” has been widely accepted and is accepted in almost every international treaty including and since the UN Charter. In fact, it is not uncommon for legal concepts over time to alter their meaning or emphasis as new circumstances arise and clearly it has expanded beyond the confines of Rome. Thus, your Wiki definition, comprised of parts a) and b) seems no longer relevant.

    In its simplest form, it appears to me (from what little legal knowledge I have) that “uti possidetis juris” merely refers to maintaining the territorial integrity of a state. Specifically, that the right to self-determination must not involve changes to existing frontiers at the time of independence so long as the government represents all the people without distinction, except when the states concerned agree otherwise.

    Thus, regarding your example of the Crimea the recent process of independence involved the transformation of internal to external borders. Despite it’s borders having been “administratively allocated to Ukraine by Khruschev,” these were international boundaries before independence. Thus, as in the case of the boundaries between colonies of different colonial sovereigns or the boundaries with another independent state of a seceding part of an independent state, the established status of such lines must remain as such. No matter what the provenance of the international boundary, it remains unaffected by the independence of the newly established state whether by way of de-colonization, succession or dismemberment.

  7. tea parties being an instrument of international law for changing borders.

    But…every rule has an exception, and of course in Boston there was a precedent that a Tea Party led to the redrawing of the colonial borders of the British Empire. As a result of the rebellion against the Crown and the defeat of his majesty’s forces, the territories passed into the possession of the Continental Army by right of conquest.

    If this was Churchill’s Cairo argument in 1920, he utterly disregarded the international laws, and those of England.
    In effect the creation of Transjordan was illegal, and because that territory was not claimed by anyone at the time except the Jews, within international law as framed by Europeans based on Roman law it STILL constitutes Terra nullius and can certainly be conquered by force by Israel if he wishes to do so. Transjordan is in th esame status as Germania in the time of Imperial Rome, occupied by nomads, but claimed by Romans; a claim not ever disputed until the French Revolution.
    In fact Churchill ignored mandate status and redistributed the land as if this was colonial possession by right of conquest. France did the same by re-creating Lebanon in the shape of former Crusader states (near enough). “To each his own” applied here to the European governments and not the local demographic or international law that sought to create a Jewish State in the DOCUMENTED borders of Israel.

  8. @ nfarbstein:

    What are you using for reference, Wikipedia?

    “uti possidetis juris” is actually in two parts
    a. “uti possidetis”

    b. “juris”

    a. means possession of territory forcibly ceased after a war.
    b. means this territory is incorporated into administrative control according to the law of the entity that ceased it.

    Demography has nothing to do with it.

    This concept is Roman law, that is over two thousand years old, and…primarily applies to Rome!

    It has been used in Europe since then as Germanics CLAIMED Roman territory after the dissolution of the Roman Empire. Until then Germanics didn’t claim territory because they were new arrivals to Europe. This was the primary importance of the morphing of the Imperial Rome into the seat of the Roman Church. The Roman Church, as the argued rightful inheritor of the Imperial Rome, granted lands to newly-baptised pagan chiefdoms, and proclaimed them kings of their realms.
    They did not claim territory under “uti possidetis juris”. It was a simple land title grant. They claimed it in the name of the Church.

    In the case of Crimea “uti possidetis juris” is utterly inapplicable. In the first place Crimea was never within the realm of Roman law application. It was simply claimed by Russia under the rights of conquest after defeating Crimean tartars.
    Crimea was incorporated into the Russian Empire, and purposefully settled by retired Russian soldiers in the 18th century. Because tartars were themselves not claiming ownership on account of being prior conquerors, the land simply passed to the state, and was redistributed, including allocations for the construction of state institutions like the Sevastopol naval base.

    The effect of b. juris, in intention, is to ‘freeze’ the land rights claims within the contexts of the last applicable legal codex of the territorial administration to avoid conflict. In international law the juris part is not the International Law, but the last law practised within the borders under question. As an example, in a former French colony, the juris application would be under French law.

    What law was the last law applied in Crimea? One has to say that this was Soviet law because the borders of Crimea were created by the Soviet Union. The old borders under the Russian Empire were totally different.

    But, Soviet Law didn’t recognise Roman Law AS FOUNDING PRINCIPLES!
    There was no concept of right of conquest in the Soviet Union. Territories were added by treaty following post-conflict negotiations (usually Soviet dictates).
    Within the USSR the redrawing of constituent republican borders were covered by administrative laws which are not unlike those under which political boundaries are redrawn in democratic states to offer more equitable candidacy representation to the demographic so there isn’t a situation where one political representative represents 500 people, while another represents 50,000.
    What transpired was that, for example, if the USA was divided into larger administrative divisions ‘super-states’ based on time zones, than Michigan, which is very much closer to the Central Zone than Eastern (Atlantic) Zone, can be allocated to the Central Zone by simply recognising the one hour difference in time of the working day between New York and Detroit.
    This was the reason for Crime being administratively allocated to Ukraine by Khruschev.

    The historical Ukraine is actually about 1/3 of the current Ukraine, and mostly in the western part of current borders.

    So now we get to Israel.
    Israel has its own set of laws, i.e The Law.
    It has no need for the international adoption and adaptation of Roman law.
    In this it is not unique!
    None of the Islamic state, Indian states, China or any Asian states in fact recognise this international ‘law’! It is international only in so far as it applies to European colonies. Israel was a European colonial state during the period of Crusades (11-14th centuries), but in 1918 it did not resume this status, but became a mandate territory.
    The intention was to RECREATE THE BIBLICAL ISRAEL AS DESCRIBED IN THE TANAKH. The borders to be recognised were those based on consecration by Ezra which pre-dates Imperial Rome.

    The CHANGE in these borders was decided by Churchill over a cup of tea in Cairo!
    I had a search, but could not find any reference to tea parties being an instrument of international law for changing borders.

  9. QUESTION: Does the principal of “uti possidetis iuris” override claims by a minority that inhabits a territorial continuum of lack of minority rights, etc. and thus to exercise its legal right to self-determination?

    It seems this was applied in the case of Crimea, which chose external self determination in the form of Russian re-unification.

    Please advise.

  10. Disaster in the Levant: the Syrian Civil War in its Fourth Year by Jonathan Spyer

    Yet as of now, at least, what this seems to mean is the consolidation of the lines that fragment Syria, and which render its borders increasingly fictional. Assad may have ring-fenced the capital and the west, but he is not even close to achieving the reunification of the country. …..
    The balance of power, and hence the stalemate between the combatant sides in the Syrian conflict, shows no sign of being broken any time soon. ………..
    Given the military stalemate, the absence of any meaningful diplomatic process following the failed ‘Geneva 2’ conference and the continued commitment of the various sides to their own victory, the war in Syria looks set to continue for the foreseeable future. ………

    Let me count the blessings:
    1- the enemies of Israel are busy killing each other.
    2- Assad regime is significantly weaker in its ability to damage Israel and is very busy trying to just survive.
    3- Hezbullah is now spread thin over 2 nations and engaged in multiple conflicts and fronts. If Israel should ever decide to seize the opportunity it can much more easily defeat Hezbullah now. the sunnis will eat hezbullahs rear while hezbullah presents targets in Syria out in the open. I would expect that in Syria the hezbullah units can be easily seen and targeted.
    2- Giving up the golan has receded far and it has even been mooted that the Jihadis if successful and/or aided by Israel would give up that claim. IN any case the syrian claim to golan gets weaker.

    the war in Syria looks set to continue for the foreseeable future. This is a tragedy for the people of Syria, …… and for the region as a whole.

    I beg to differ wrt Israel

  11. jlevyellow Said:

    De facto you are correct

    The reason there is an Israel today is not because of the UN. Israel owes it’s existence to the men and women who fought and died to retain the land. And to the men and women of Israel who now defend it’s borders.

  12. jlevyellow Said:

    If you reject law as a basis for resolving disputes, you are an Obama supporter, a follower of Alinsky, and a Communist in the worst sense of the word.

    OR:
    a realist, a pissed off disillusioned Jew,an anarchist, a teamster, etc.
    jlevyellow Said:

    The Jews are hated because they make their case.

    On the contrary, the jews are hated because they DO NOT make their case. The myth, libel and canard that Jewish settlement is illegal or illegitimate is propagated solely because Jews are not making their case. Therefore, the Jews who never make their case paint themselves as thieves of the arab lands. single Jews writing once in a blue moon cannot substitute for the resounding silence emanating from the state of Israel and worldwide diaspora institutions. I see no Israeli or Jewish outrage at the illegality and illegitimacy libels spread by those who committed to “facilitate Jewish immigration and encourage close settlement” in the LON mandate.
    jlevyellow Said:

    Thank G-d Jews talk and write and confront.

    Where are those Jewish institutions such as the ADL? Is this not a defamation of the Jewish people and the state of Israel? Where is the state of Israel, I NEVER hear them dispute the canards and libels of illegitimacy and illegality. In fact, they are the illegal obstructors of Jewish settlement in the designated mandate.
    Here is one example of appropriate action at no cost:
    The state of Israel summons all ambassadors of nations, who guaranteed, signed or recognized balfour, san remo. LON mandate, UN Charter art 80, and demand that they rescind and reverse their libelous and insulting statements and immediatley implement their agreements by ceasing to obstruct jewish immigration and settlement in YS.
    Another would be the bringing of suits for estoppel and mandamus wrt the libels and obstructions against those govs and institutions in their own courts.
    Another would be a campaign of diaspora jewish orgs demanding expalanations from detracting govs.
    these are but a few; a few voices pissing in the wind, and without the support of the GOI(levy?) or diaspora jewish orgs, cannot be a claim to Jews standing up. Jewish leadership takes the role to disinform and miseducate Jews regarding the facts. One of those facts is the indisputable history of double dealing and double standards by international entities, orgs, etc. Jews need an education on the use of those laws and institutions to swindle Jews. The “law” has been a tactic used by the disingenuous in consensus to swindle the Jews.

  13. Re comment 18: I would like to expand on the truism that “No one forgets anything ever.” A corollary rule is that all new information fits into old information. Therefore, it is wrong to take the attitude that “We are right and to hell with them!” We must make our arguments in every sensory modality: visual, auditory, taste, smell and haptic. Therefore, discussions of cheesecake are appropriate. Pictures also would have helped our cause.

  14. @ honeybee:

    De facto you are correct. De Jure you are not. If you reject law as a basis for resolving disputes, you are an Obama supporter, a follower of Alinsky, and a Communist in the worst sense of the word.

    Kontorovich does yeoman’s labor by making clear Israel’s claims, not because others will accept his understanding, but because he bothers to say it, because he said it so well and because he says it so often. The Jews are hated because they make their case. Others simply succumb or wind up slaughtering others in making their point.

    For the record: No one ever forgets anything – ever! That is not speculation or off-point. I am explaining how humans work (See Penrose and Hefferman). The worst case scenario for Israel entails failure to make arguments persistently. Once is not enough, since people tend not to pay attention. Thank G-d Jews talk and write and confront. When that stops, we are lost.

  15. What Kontorovich is talking about here is

    Customary international law refers to international obligations arising from established state practice, as opposed to obligations arising from formal written international treaties. According to Article 38(1)(b) of the ICJ Statute, customary international law is one of the sources of international law. Customary international law can be established by showing (1) state practice and (2) opinio juris.

    Put another way, “customary international law” results from a general and consistent practice of states that they follow from a sense of legal obligation.

    So, its a minhag, not halakha 🙂
    In any case, the USSR was always outside the ‘state practice’ and therefore customary international law does not apply to any FSU states or parts there of.
    Moreover, Ukraine was not within the customary international law at the even of its independence either. No FSU republic was. The USSR was a federated state which had a constitution that formally allowed republics to leave the federation, but of course this was never tried under Communism.
    If logic is applied, the republics would leave the federation within the borders they had during their INCORPORATION, not those the FEDERATION established through Communist Party decisions, including under the rights of conquest, i.e. from Poland, Rumania, Germany, etc.
    I am therefore a bit surprised at Poland making a lot of noise over Ukraine because it benefited substantially through gains at the expense of Germany…Prussia disappeared from the maps of Europe after hundreds of years! German population of Prussia were indigenous to the area since the times of the great migration 1500 years ago! If those borders can change and be recognised now by the EU, why not borders that were changed only 60 years ago?

  16. When Russia Seized control of Crimea and then arranged for a referendum to justifymaking the Crimea part of Russia

    I watched the news, and what I saw was the referendum first, and than the administrative incorporation of Crimea into the Russian Federation. Dual citizenship for those that want it only became available this week.
    But of course Crimeans, even the Crimean Tartars, are not committed to the destruction of Russia. So why bother brining up Judea and Samaria?

  17. Its hard to argue with Kontorovich because he doesn’t quote his sources, so its not ‘law’ until he does.

    In fact this ‘law’ doesn’t apply to Crimea because it was administratively reallocated to Ukraine which was not based on international law or even Soviet law.

    What is more, professor Kontorovich should take a look at the borders of Ukraine BEFORE it was assimilated into the USSR in 1920. Current, i.e. Soviet, Ukranian borders were in fact defined by Lenin, not the Russian Empire, so the case of the Ottoman Empire doesn’t apply.

    There is an even less of a basis for comparison since there are no indigenous claimants to Crimea extant to press the land rights in international law.

    What makes it even more confusing is that Ukranians are not indigenous to anywhere. They are the legacy of multi-ethnic resettlements over the centuries since the destruction of the Khazar khaganate that assumed the colloquial Russian geographic name that simply means “On the edge of [Russia]”

    The basis of comparison with Israel either as a People, kingdom or modern state are therefore not there at all!

  18. One way in which Israel is different from russia in Crimea is that Israel is already in sovereign control of the west bank whereas russia had to invade.
    a question I have re 242 is that with regards to the west bank I would have thought that 242 would be superseded and subordinate to the Israel Jordan treaty of 1994. 242 was made when there was dispute between Israel and Jordan over the west bank. With the Israel Jordan treaty this dispute disappears and I assume with Jordan recognizing its border with Israel as the river. Therefore, I believe 242 expired, was canceled and/or superseded but in any case no longer relevant. the only claim the pals can have is the same as any secessionist movement. However, Israel has defined itself as an occupying power and has not claimed or annexed YS. The problem is again Israel. Israel should at the least annex C and keep A&B under occupation.

    One of the prerequisites for ending occupation must be the complete dismantling of the anti semitism. this must be a minimum demand: the removal of all materials and the changing of all curriculums. The US did not leave Germany or Japan until they were pacified 100% including the cultural institutions.

    One requirement for entertaining any proposals should be that it contains no double standard which has allowed actions for others and denied for Israel. Israel must automatically view such proposals as anti semitic and undiscussable at the outset. therefore, any proposals which seek to deprive Israel of any normal rights or interests must be repudiated in the whole at the outset purely on being a double standard. The greatest chutzpah of the internationals is their attempt to impose double standards.

  19. honeybee Said:

    Amen, amen, amen. Did you get any cheesecake ????

    I did. 😀 should last out the week. We have a great conditeur in Dimona…. Next week back to my post holiday dieting. He makes a cream cheese pie with 4 different topping, Lemon, blueberry, cherry and crumb sells in in a plastic package of 4 squares each square a different toppings. Cast about $4 each package I bought 3.

  20. yamit82 Said:

    B- What would be the reaction of the world community if Israel announced that we are not prepared to lose any more of our sons in a conventional war like in 1973 and any perception of any army heading for our borders will be Nuked invoking the right of preemptive self-defense

    OMG, they might gas us like rats in a hole and burn us [Jews] to ash.

  21. yamit82 Said:

    Jews Need to Be Feared by everyone and for that we need leaders unafraid to Challenge the Gentile nations with unpredictability and the belief by the nations we would not hesitate to use our power; so we need a leader prepared to explain to them How, When and Where and why

    Amen, amen, amen. Did you get any cheesecake ???? A serious question not a “double entendre”. I was so empress, dweller can speak French.

  22. Viiit Said:

    But unless this is said clearly and strongly, we should not expect our friends to be more pro-Israeli than we are.

    Again with the WE!!! There is no WE there is us and them. You are included with the THEM!!!!
    Who might those friends be?

  23. mrzee Said:

    the most important principle of international law, “Israel is always guilty”.

    2nd and third principles of the same international law is that Israel always accedes and succumbs to the charges whether true or not…That is part of what I call the exilic mentality.

    Hypothetically what would be the international communities reaction to Israell were we to have some MAD leaders who refuse to go along and play their game?

    What might their reaction be to an Israel who flaunts her reported Nuke arsenal of 200-500 nuke warheads many of an advance Hydrogen nature mounted on Israeli made ICBM’s that can reach any point on the globe and each mounted with MIRVS, with individual targeting.

    What would be the worlds reaction if Israel announced in advance A- That our Nuke response will be set on automatic if any incoming missile is detected even before we know the nature of the incoming Missile or rocket?

    B- What would be the reaction of the world community if Israel announced that we are not prepared to lose any more of our sons in a conventional war like in 1973 and any perception of any army heading for our borders will be Nuked invoking the right of preemptive self-defense?

    C-Israel should announce that if we are attacked with any Nuke our hardened ICBM’s and Nuclear armed Submarines will survive and launch against any source of the missile attack but in addition:… every oil field in the ME, Every Arab and Muslim capital including Mecca. Every European capital and Washington, NYC, LA and Moscow. Everybody gets a piece of our retaliatory power. Burning oil and gas fields hit by nukes could burn for years creating a nuclear winter destroying all life forms and all civilizations.

    Therefor the message should go out that it’s up to the world community to insure we are secure and free from all threats or else.

    The only reason this has not occurred is because nobody believes we would institute such a policy and we are not feared like N. Korea is or Pakistan and especially Russia and China. There is no doubt those nuclear armed nations would not hesitate to use their power if put in certain situations so they are not put in those situations….

    Jews Need to Be Feared by everyone and for that we need leaders unafraid to Challenge the Gentile nations with unpredictability and the belief by the nations we would not hesitate to use our power; so we need a leader prepared to explain to them How, When and Where and why!!!!

    The World and the Jews especially, should understand we have the power to destroy any individual nation state and if need be the world and will do so if pushed too far….It’s up to us to define those parameters.

    Our defense posture should go towards enhancing our defenses against Missile and cyber attack and increasing our nuclear offensive capabilities and 2nd strike capabilities.

    Better to be feared than loved. Since Jews will never be loved, that leaves only the option of being feared available to us.

  24. The discussion entirely lacks the moral dimension.
    Yet, is the moral ground where Israel has lost the war.
    The world perceives the palestoids as morally right and Jews as morally wrong.
    The truth is the opposite, Jews are morally right, and the palostoids are usurpers and liars.
    But unless this is said clearly and strongly, we should not expect our friends to be more pro-Israeli than we are.

  25. On the other hand Jewish Judea is essential to Jewish identity.
    Judea and Jerusalem for Jews are like Moscow to Russians and Mecca to Arabs.

  26. The analogy to Crimea is very unfortunate.
    Crimea has simply nothing to do with Ukraine, other than that Khrushchev transferred it to Ukraine without the consent of the population.

  27. Borders are no more then lines in the sand or a fence to climb over if you’re not prepared to defend them. Ask anyone who live in a Southern border state of the USA.

  28. Very interesting but Professor Kontorovich seems to have ignored the most important principle of international law, “Israel is always guilty”.