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News and views on Israel, Zionism and the war on terrorism.

May 02, 2003

International Law on Borders and Refugees (Ted Belman)

Dr. Robbie Sabel lectures in international law at Hebrew University and is a former legal adviser at the Foreign Ministry.

He argues that there is no need to demand that the Palestinians give up the right of return and declare an end to the conflict

There is a connection between the two demands, but they can be examined separately. The instrument international law provides, as a basis for peace accords and an end to territorial conflict, is defining an agreed border. A mutually agreed frontier has supreme status in international law - an agreed border remains fixed when war breaks out between two sides, even if the agreement that fixed the border expires.

Borders bind all succeeding governments. Even if a country disappears and a new country is established in its place, the new country inherits the borders of the previous country, and new countries inherit former colonial borders. Israel has never declared itself to be the heir of the British Mandate, but in effect it inherited its borders, and peace agreements with Egypt and Jordan explicitly adopted the border of mandate-era Palestine. The border with Lebanon, which was set by the UN, follows the mandate-era border.

There was never an agreed border between Israel and a Palestinian entity, only an armistice line, so the border will have to be determined in negotiations between the two sides.

When a border is delineated it does, by its very nature, end the territorial conflict, and it is not proper to add a theoretical declaration that all conflict is ended.

Countries at peace often continue to have conflicts - it is the nature of human relations. A critical condition in any agreement is that the sides declare that peaceful relations exist between them and that they are committed to avoid using violence.

There's just no point to an "an end of conflict" declaration
.

International law does not recognize a "right" of return for Palestinian refugees and Israel should not announce, even indirectly, that it recognizes such a right. On the other hand, there is no point in demanding that the Palestinians give up the "right."

A good peace agreement with the Palestinian state must define a clear and permanent political border, and a commitment to avoid violence. That is the basis which international law lays down and it is the basis that has proved itself in peace agreements with Egypt and Jordan.
As interesting as these points are, two things are overlooked. After acknowledging that Israel inherited the borders of the British mandate and peace agreements with Egypt and Jordan explicitly adopted the border of mandate-era Palestine, he fails to draw the necessary conclusions that these same borders would be Israel's boders as inheritors of the British Mandate. Thus Israel's borders would be the Jordan River and the Dead Sea.

Secondly after writing "There was never an agreed border between Israel and a Palestinian entity, only an armistice line, so the border will have to be determined in negotiations between the two sides", he neglects to say that agreements with respect to borders are between states. As for the idea of an armistance line, it was created at the end of the '48 war and the Palestinians were not a concept at that time. So it is wrong to say there is an armistance line separating Israel from the Palestinians. Until such time as Israel agrees to allow the Palestinians a state and agrees to borders with the new state, its borders are Jordan's borders.

The one qualifier I would add to this is that Jordan relinquished its claims to the territories in favour of the Palestinians. Whether people, as opposed to states, can acquire such rights, I highly doubt. And whether Israel is bound by such declaration is also doubtful.