Tina Al-khersan, Azadeh Shahshahani[1]
“They once said Palestine will be free tomorrow. When is tomorrow? What is freedom? How long does it last?”[2]
- Mosab Abu Toha (Palestinian poet, short story writer, and essayist from Gaza)
Introduction
Self-determination acts as a “prerequisite and precondition” for implementing all other rights, cementing its status as the bedrock of fundamental human rights.[3] In modern-day international law, many consider the right to self-determination to be jus cogens—or a preemptory norm of international law that states cannot derogate from—thereby reflecting the perceived global consensus.[4] Despite its demonstrated standing, however, numerous groups continue to be denied the right to self-determination. One need look no further than the Palestinian people, who for over a century have been denied the right to self-determination and subjected to an ongoing Nakba at the hands of Israel, despite the origins of the Palestinian people’s right to self-determination tracing back to at least 1920.[5] This discrepancy raises two questions: why are occupied peoples like the Palestinians continually precluded from exercising their right to self-determination, and what does this denial signal about the current global order and state of international law?[6]
This Essay seeks to answer these questions by examining the history of self-determination through a Third World Approach to International Law (TWAIL), juxtaposing the historical development of self-determination with relevant events occurring in Palestine. After delving into this history, the Essay then examines two legal principles that have historically been invoked to justify various colonial projects: terra nullius and uti possidetis juris. Terra nullius created a legal avenue for colonial powers to categorize land as empty despite already being occupied by indigenous groups. Uti possidetis juris then ensured that newly independent countries inherited the often-arbitrary administrative borders drawn during colonial times—borders that, although theoretically open to revision, denied these nations the ability to determine their own boundaries in practice. Despite the widespread criticism of both principles, Israel’s colonization of Palestine, justified by Zionism, relies on aspects of both terra nullius and uti possidetis juris. The continued use of these principles demonstrates how international law continues to support a colonial legal framework that denies people the ability to meaningfully exercise their right to self-determination.
In this context, TWAIL emerges as a helpful tool to address and rectify legal principles that continue to support a colonial global order. TWAIL is an approach or school of thought driven by multiple objectives. These objectives include deconstructing international law as a tool that perpetuates a racialized hierarchy, constructing and providing a new normative legal framework, and eradicating underdevelopment in the Third World through scholarship, policy, and politics. A TWAIL approach does not seek to eradicate international law but rather reconstruct international legal frameworks so that they cease to be Eurocentric and instead meaningfully protect the rights of peoples from the Third World.[7] Here, a TWAIL approach reveals that a previous colonial order continues to impact the application of international law today, particularly in the way it privileges occupying powers and thwarts Palestinians and other groups from exercising their right to self-determination.
TWAIL is also a helpful tool for acknowledging where international law has positively contributed to decolonization, providing hope for a future in which Palestinians’ self-determination is not only internationally recognized but realized. As such, this Essay demonstrates that although the right to self-determination has been rendered hollow for Palestinians thus far, this need not be the case going forward. Even as international law continues to uphold a colonial global order and privilege occupying powers, there remains hope for a liberated future. The recent case South Africa brought against Israel in the International Court of Justice (ICJ) and the arrest warrants issued by the International Criminal Court (ICC) for Benjamin Netanyahu and Yoav Gallant suggest that the international global order is slowly—and at the cost of Palestinian life—beginning to appreciate the role that international law can and should play in challenging the continued impact of colonialism.
Because law is a construct, it is malleable and able to respond to prevailing concerns and valid criticisms. Just as international law once was constructed, its survival necessitates that the principle of self-determination upholds the rights of all peoples today, including Palestinians. For as Edward Said astutely warned, “[T]here always is a chorus of willing intellectuals to say calming words about benign or altruistic empires, as if one shouldn’t trust the evidence of one’s eyes watching the destruction and the misery and death brought by the latest mission civilisatrice.”[8] We need not be among the chorus that, at best, ignores the ongoing genocide of Palestinians and their demands for self-determination and, at worst, relies on international law to justify such subjugation. Instead, as Said has explained, “Our role is to widen the field of discussion, not to set limits in accord with the prevailing authority.” This Essay thus relies on TWAIL not only to demonstrate how the application of self-determination continues to be impacted by colonial legal principles, but also to facilitate a fair and principled application of the right to self-determination moving forward.
The History of Self-Determination
After World War I
While one can trace the origins of self-determination back centuries, its modern-day definition developed in stages after the World Wars or, in other words, recently. As such, the right cannot be considered to have developed in isolation from the colonial global order at the time of its development. Examining the history of self-determination through a TWAIL approach ultimately reveals that the right to self-determination was never truly meant to be a liberatory tool for colonized peoples worldwide, including the Palestinians, but instead a means of continued control.
Part I of this Essay provides a brief historical survey of the right to self-determination.[9] Section A explains how self-determination emerged after World War I, highlighting Woodrow Wilson’s limited understanding of the principle that he is often credited with introducing on the international stage. As self-determination did not reemerge on the global stage until after World War II, Section B accordingly begins there. This Section explains that although self-determination was enshrined in international legal instruments following World War II, the concept of territorial integrity only began to challenge the right to self-determination as colonies gained independence. Sections A and B also include brief explanations of the historical events simultaneously occurring in Palestine to demonstrate how even as self-determination began to emerge as a norm in international law after the World Wars, Israel continued to carry out its settler-colonial project in Palestine, thwarting Palestinian demands for self-determination and limiting the impact of the right for Palestinians today.
The origins of self-determination are often debated, with some arguing that the right traces back to the Enlightenment Era and rose to prominence with the American Declaration of Independence of 1789 and the French National Assembly in 1792.[10] In any case, the right to self-determination was not often applied before World War I and, importantly, lacked a legal basis in international law.[11] In fact, historical events during this time point to imperial powers actively resisting the application of the right to self-determination; such powers regularly crushed calls for self-determination so that they could advance their own interests and prolong their empires.[12]
It was not until the early 1900s, after the end of World War I, that the concept of self-determination gained traction on the international stage. This was when President Woodrow Wilson suggested that the principle of self-determination could be a useful tool for considering the future of the territories that belonged to the now-defeated Ottoman and Austro-Hungarian Empires.[13] In crediting President Wilson with making efforts to institutionalize the concept of self-determination, many turn to his Fourteen Points speech given in front of Congress, in which he explained the principle of self-determination as “the right of every people to choose the sovereign under which they live, to be free of alien masters, and not to be handed about from sovereign to sovereign as if they were property.”
As critics rightly point out, however, President Wilson’s idea of self-determination was rooted in civic nationalism, which asserts that communities have the right to self-govern. His notion of self-determination was not associated with a collective or ethnic nationalism that promoted the idea that groups with a common descent or language had a right to political and territorial independence.[14] Wilson later acknowledged that he may have mistakenly given millions of people false hope when he said:
When I gave utterance to those words [that all nations had a right to self-determination], I said them without a knowledge that nationalities existed, which are coming to us day after day . . . .You do not know and cannot appreciate the anxieties that I have experienced as the result of many millions of people having their hopes raised by what I have said.[15]
He and other leaders ultimately realized that applying the right to self-determination outside of Europe and Wilson’s intended context would upset the colonial global order: “It was not within the privilege of the conference of peace to act upon the right of peoples except those who had been included in the territories of the defeated empires,” he said. As colonial territories held by the Allies were denied the right to self-determination, it became clearer that Wilson’s idea of self-determination was not meant to be a liberatory one for colonized peoples worldwide but was far more tempered in scope.
Therefore, while the Austro-Hungarian Empire dissolved and formed into independent states, the Ottoman Empire faced a different fate. Proposed by South African General J.C. Smuts, a new concept would soon take hold to determine the governance of the Ottoman Empire: the Mandate System.[16] After World War I ended in 1918, the League of Nations was established in 1919 “to promote international co-operation and to achieve international peace and security.” Outlined in Article 22 of the League of Nations, the Mandate System created a three-tiered system in which “A” Mandates were closest to independence, while “C” Mandates were closest to colonial rule.[17] The stated goal of the system was to allow formerly-colonized territories to reach a stage in which they could develop as independent nations that “stand alone” and self-govern in the future.
Though a seemingly positive development for international law, the Mandate System actually allowed for colonialism to effectively continue—but this time, fully sanctioned under law.[18] Despite its stated goal of achieving independence for formerly-colonized peoples, the Mandate System undermined self-determination. It allowed the pre-existing colonial global order to continue within a new framework, and it did so by relying on a logic of civilization that has long been used to oppress colonized peoples.[19] Imperial or “civilized” powers were to act as gatekeepers in determining when former colonies or “uncivilized” nations could, or should, achieve independence.[20] It also stifled local governance based on a community’s local traditions and ideas, all but requiring formerly-colonized peoples to replicate the governance structures of their former colonial powers.[21]As self-determination emerged on the international stage as a tempered means to independence, the newly formulated Mandate System served as a means of continued control.
Meanwhile, a year before the end of World War I in 1917, Lord Balfour was drafting the now-infamous Balfour Declaration, altering Palestine’s fate as an A Mandate and undermining its future potential to become an independent state. Having previously served as the Prime Minister of the United Kingdom and acting as Foreign Secretary when he issued the Declaration, Lord Balfour and his views held immense political sway. He was known to be a white supremacist and antisemite, whose desire to reduce the Jewish population in Europe drove his support for establishing an Israeli state—a goal he was willing to pursue at the expense of the Palestinians and their calls for self-determination. He wrote in 1919:
[W]e do not propose even to go through the form of consulting the wishes of the present inhabitants of the country … . The Four Great Powers are committed to Zionism. And Zionism, be it right or wrong, good or bad, is rooted in age-long traditions, in present needs, in future hopes, of far profounder import than the desires and prejudices of the 700,000 Arabs who now inhabit that ancient land.[22]
Ignoring the calls for self-determination coming from the “present inhabitants of the country,” Lord Balfour’s Declaration promised to establish a “national home for the Jewish people” in Palestine to meet growing Zionist aspirations. He did not mention the Palestinians even once.[23]
Zionism is a political ideology tracing back to the nineteenth century that emerged in response to growing antisemitism. The definition of Zionism that was adopted most widely and that continues to dominate today is defined by settler-colonial aspirations. It envisions a state for Jews by allying “with the imperial powers in carrying out its plans for establishing a[ ]new Jewish state in Palestine, and it [does] not think except in negative terms of ‘the natives,’ who were passively supposed to accept the plans made for their land.” It is no surprise, then, that Lord Balfour’s Declaration, written to Zionist sympathizer and leader in the Anglo-Jewish community Lionel Walter Rothschild, ignored the fact that Britain had promised the Arabs independence from the Ottoman Empire in 1915 and promised the French that Palestine would be placed under an international administration in 1916. Without mentioning Palestinians and with no basis in the law, the Balfour Declaration advanced Zionism by outlining a purported Israeli-Jewish right to self-determination exclusive to Palestine’s A Mandate, disregarding the Palestinians already present in the territory.[24]
Although the right to self-determination was still forming on the international stage, Balfour himself was well aware of the right and the implications of his declaration on the prospects of a Palestinian right to self-determination. In a letter to a leader of the Zionist movement in the United States, Balfour stated:
[T]he Powers had committed themselves to the Zionist programme which inevitably excluded numerical self-determination. Palestine presented a unique situation. We are dealing not with the wishes of an existing community but are consciously seeking to reconstitute a new community and definitely building for a numerical majority in the future.
In response to the Balfour Declaration, Britain spearheaded the effort to establish a Jewish national home in Palestine and squashed Palestinian demands even as self-determination began to emerge as a norm in international law.[25] Although self-determination had great promise initially, its potential to help establish a liberated future was already limited as imperial powers tempered its application in the case of Palestine.
After World War II
The concept of self-determination did not re-emerge on the international stage until World War II ended in 1945, again upsetting the prevailing global order. In an attempt to avoid the magnitude of another world war in the future and to secure lasting peace, states collaborated to establish the United Nations and the U.N. Charter. As the United Nations acted in the aftermath of the war, self-determination became the legal basis for decolonization, and defining the right became one of the United Nation’s main objectives. Article 1(2) of the U.N. Charter specifically states that friendly relations among signing States would be “based on respect for the principle of equal rights and self-determination of peoples.” The principle would then be incorporated into subsequent texts, including the U.N. General Assembly’s Declaration on the Granting of Independence to Colonial Countries and Peoples in 1960 (the “Declaration”). As the Declaration was passed during a period of decolonization, self-determination became the bedrock principle for freedom from colonial rule. It declared: “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development.”
In the same Declaration, however, the United Nations affirmed the importance of the territorial integrity of countries, undermining the right of groups within these territories to meaningfully determine their political future, which may have included making territorial adjustments. It is true that by affirming a sovereign state’s right to defend and preserve its borders, territorial integrity may provide international security by deterring warring powers from attempting to gain land and redraw borders. Just as a people have a right to choose their government, so, too, do states have a right to be free from violent attempts to appropriate land.
However, for many previously colonized peoples hoping to achieve independence at this time, territorial integrity served to thwart their calls for self-determination. Groups within territories belonging to former colonies were limited in their ability to meaningfully state-build as international law prioritized borders already shaped by and drawn by colonial powers, cementing the territorial legacy of colonization and leaving little room for previously colonized peoples to form their own states. Therefore, although self-determination was positioned as “the driving force” in the UN’s subsequent decolonization processes, territorial integrity posed a challenge to the concept. Appreciating this difficulty, the United Nations sought to further clarify the concept of self-determination a decade later in the 1970 Friendly Relations Declaration, again balancing the right of self-determination for oppressed peoples with sovereign states’ territorial integrity. This resolution adopted a majority view that while some groups who did not have an independent state and who suffered oppression may have the right to pursue self-determination, self-determination did not necessarily legalize secession.
While self-determination became the legal principle that drove decolonization after World War II, the Zionist movement was actively colonizing Palestine with the support of imperial powers and in direct opposition to Palestinians’ demands for self-determination. As states signed the U.N. Charter in 1945, Zionists were mounting pressure to establish Palestine as a Jewish state, serving as a precursor to the Nakba in 1948 that marked the violent and unlawful establishment of the State of Israel.Although Article 22 of the League of Nations enshrined the supposed right for territories, including Palestine, to determine their own future and political status, Palestine had already been singled out as the exception due to the Balfour Declaration. Meanwhile, the 1900s saw a wave of independence for other groups exercising their right to self-determination, including other A Mandates such as Iraq in 1932 and Transjordan in 1946, cementing Palestine’s treatment as sui generis. Even as other groups gained independence and self-determination began to be cemented as a bedrock principle in international law, ongoing events demonstrated its limited application to the Palestinian people.
Takeaways from the History of Self-determination
In response to an ever-changing global order, the definition of self-determination evolved throughout the 1900s. Self-determination was not introduced to serve as a liberatory tool for colonized peoples hoping to determine their own future. Rather, it was limited from its introduction on the global stage. Even as self-determination became a guiding principle of the Mandate System and decolonization efforts after World War II, it did not become a right that could practically be realized by all, particularly Palestinians.
While colonial powers claimed to have relinquished their control over former colonies, the creation and implementation of the Mandate System continued to allow foreign powers some ability to rule and prevented Palestine from being set up for independence unlike other Mandates. Even as self-determination came to be legally defined in various legal instruments, Palestinians’ demands for self-determination were willfully ignored as Israel carried out the Nakba and committed atrocities against the Palestinian people during its forceful establishment of the Israeli state in 1948. In this way, a TWAIL approach to the history of self-determination reveals that imperial powers continued to control the outcomes of some formerly colonized peoples, preventing self-determination from becoming a fully realized or uniformly applied right.
Legal Legacies That Undermined Palestinians’ Right to Self-Determination
Into the late 1900s, calls for self-determination continued to be heard on the international stage. Namibia, for example, gained independence in 1990 despite its classification as a C Mandate. C Mandates like Namibia were “best administered under the laws of the Mandatory as integral portions of its territory,” meaning administrative control over Namibia more closely resembled colonial rule than A Mandates such as Palestine. Even so, the General Assembly, Security Council, and the ICJ supported Namibia’s independence, and “[w]hat seemed impossible at the time of the League of Nations – an immediate right to self-determination for the Namibian people – was reaffirmed constantly and accompanied by more concrete action.” In Vice President Ammoun’s separate opinion in the ICJ case, he even repudiated the application of terra nullius in “Africa south of the Sahara” as a “monstrous blunder and a flagrant injustice,” highlighting the rise and fall of civilizations in the region whose development was impacted by colonialism and the slave trade.
While concrete action led to the realization of self-determination for the Namibian people, such was not the case for the Palestinians. Unjust principles from the past prevented a liberated future. Even as self-determination developed during the mid-1900s and supported calls for independence elsewhere, colonial legal principles continued to temper Palestinians’ right to self-determination, including terra nullius and uti possidetis juris. Although these legal principles contravene the right to self-determination as it is understood today, this section demonstrates how these legal principles continue to prop up a settler-colonial state that crushes Palestinian calls for self-determination despite the right’s standing in international law.
Continued Weaponization of Terra Nullius
To support colonial projects across the world, legal frameworks emerged to justify colonizers’ violent land acquisition. One foundational principle of these frameworks was terra nullius. In its original definition, terra nullius referred to a region without humans and was derived from a Roman concept known as res nullius, which put forth that all empty things, including lands that were unoccupied, were the common property of mankind.[26] As terra nullius positioned lands as empty, the first person to use the land became its owner. In practice, however, the definition of terra nullius was adopted and expanded upon by the Europeans to justify colonization.
During colonization, any European country that discovered “new areas,” or areas unknown to other Europeans, gained property and sovereign rights over the land and its inhabitants. Not only did it apply to unknown lands, but it also applied to lands being incorrectly governed from a European perspective. For instance, if a land was occupied by indigenous peoples but was not governed in ways that aligned with the European legal and property systems, that land was considered empty, paving the way for such “empty” land to be inhabited by settlers. Terra nullius was thus premised on racist foundations, where land not in the possession of “civilized peoples” or being put to “civilized use” was considered empty. Europeans considered existing inhabitants as legally irrelevant and the lands that indigenous peoples owned, occupied, or actively inhabited to be vacant and available for claim. This way of thinking paved the way for colonization while completely disregarding the lives and wishes of indigenous peoples.[27]
To make literal and figurative way for the settler, settler-colonial societies require the “elimination of the native,” with the primary motive behind elimination being increased access to the acquired territory.[28] Elimination, as Patrick Wolfe describes, both aims to destroy indigenous societies while simultaneously establishing the colonial society on the acquired land. In such a structure, terra nullius emerges as a legal principle to justify the displacement of native communities through seizures of territory categorized as having no formal ownership. The impact of the legal principle, however, extends beyond the legal framework and into the imagination of the settler. In settler-colonial societies such as Israel, terra nullius has become a “frame of mind typifying settler societies and colonizing regimes involved in ongoing external or internal colonial expansion, often at the expense of indigenous groups and national minorities.”[29] In other words, terra nullius serves as an ideological tool to justify occupation, one that is malleable depending on the context of the colonial power but that disregards natives as irrelevant in order to create the fiction of an empty land.[30]
In the case of Palestine, terra nullius has served as both an ideology and a legal principle that has justified the acquisition of Palestinian land, even as self-determination was emerging as a bedrock legal principle on the international stage. Before there was an Israeli state that could implement terra nullius as a legal principle, imperialists and Zionists relied on terra nullius to further the Zionist ideology that relied on “the disappearance of the other.”[31] In other words, based on the similarities between the historical application of terra nullius during colonialism and the current Israeli practices that advance the colonization of Palestine, a TWAIL lens is able to draw out the ways in which Israel’s acquisition of Palestinian land draws from, or at the very least is greatly influenced by, the concept of terra nullius.
To disappear the other, the other must first be defined. One of the first steps in justifying land acquisition in Palestine was thus establishing that the Palestinians were an “uncivilized people.” If Palestinians were proven to be an “uncivilized people” and governing their land in an “uncivilized manner,” terra nullius would then mean the lands could be considered empty, paving the way for land acquisition. Unsurprisingly, then, imperialists described Palestinians as “totally destitute of all moral sense,” “disgustingly incapable as most other savages,” and Palestine as “the most unprogressive country on the face of the earth,” among other things. Zionism relied on this European imperialism to fashion Palestine as a place inhabited by dispensable natives that were a backward people.
Early Zionists spoke of Palestine as an empty land that Jewish labor would improve, fashioning Palestinians, at best, as trespassers. In the Zionist imagination, terra nullius was employed as the “alleged or wished absence of Palestinians, a representation that erases and reconstructs the past and memory.”[32] By expelling Palestinians and forcing them to leave their land, the State of Israel would be able to fashion Palestinian land as having been empty, despite the wishes of Palestinians to remain on the land. The legal fiction that Palestine consisted of empty land thus gave way to one of the modern-day foundational Zionist phrases use to justify the existence of Israel: “A land without a people for a people without a land.”
The problem was, of course, that Palestine was already inhabited by Palestinians. In a census conducted in 1922—the year the League of Nations approved the British Mandate for Palestine —around 750,000 individuals lived in Palestine, with 80,000 Jewish individuals among them, as Jewish colonization of Palestine began before the Mandate and towards the end of Ottoman rule.[33] The presence of Palestinians did not stop early Zionists from forcibly acquiring their land. As the State of Israel did not exist before its violent establishment in 1948, Palestinian land could only be acquired by settlers through force or purchase on the open market, and such purchases primarily occurred through the lead agency of land purchases for the Zionist movement known as the Jewish National Fund (JNF). The JNF also relied on the concept of terra nullius to encourage land purchases and further displace Palestinians. In the 1920s, they commissioned maps that presented Palestine as an empty and uninhabited territory, deliberately excluding the already present Palestinians to make way for Jewish settlers to purchase land and lay claim to it. By 1948, approximately 1.5 million of 26.3 million dunams were Jewish owned, with one dunam equaling approximately 1000 square meters.[34]
However, purchasing land through the free market would not be enough to establish the state Zionists sought. To achieve their settler-colonial vision and formally establish the State of Israel, Zionists carried out the Nakba, violently and forcibly expelling approximately 750,000 to one million Palestinians—or approximately three quarters of all Palestinians living in Palestine—killing at least 15,000 Palestinians, ethnically cleansing about 530 villages, and acquiring at least 78% of historic Palestine. After the Nakba, only an estimated 150,000 Palestinians remained within what Israel claimed were its borders in 1948. While the State of Israel granted the remaining Arabs Israeli citizenship, it also seized most of their land and appropriated the large tracts of land left behind by Palestinians forced to flee to prevent their return, ensure Israel’s food supply, and offer land to Jewish settlers submitting cultivation requests.
Following this forcible land acquisition, about 13.5% of Israeli territory formally belonged to the state or to Jewish individuals. To address “the discrepancy between Jewish sovereignty and non-Jewish landownership,” Israeli officials relied on legal mechanisms to absorb and gain ownership of as much land as possible by invoking notions that it was empty land, harkening back to terra nullius. In the context of Palestine specifically, to legally transform Palestinian lands into Israeli lands and continue Israel’s “disappearance of the other,” Israel established a series of laws to determine how land belonging to Palestinians would be treated if they had left, been forced to flee, or were deported during the Nakba in 1948. One of the most notable laws is known as the Absentee Property Law, in which land that was “abandoned” was framed as empty, paving the way for its legal transfer to the State of Israel. Specifically, the law created a legal category of individuals known as “absentees,” referring to Palestinians who were expelled from the territory, fled, or left after November 29, 1947. For Palestinians who remained within the territory and were internally displaced, Israel created a separate category for them known as “present absentees,” referring to Palestinians internally displaced in 1948. Property belonging to absentees was placed under Israel’s control through a Custodian of Absentee Property. The Custodian, appointed by the Israeli Minister of Finance, is allowed to take “absentee” property into their possession, initiate legal actions, and act as a plaintiff or defendant in actions concerning absentee property while being represented by the Attorney General or its office.
After reviewing the historical application of terra nullius, it becomes easier to identify the ways in which Israel’s use of the word “absent” serves as a synonym for empty in the terra nullius framework. Palestinian land that was inhabited—and only uninhabited because Israel forcibly displaced or ethnically cleansed Palestinians—was declared to be empty, resulting in the “wished absence of Palestinians” that continues to dominate the Zionist imagination. In creating the legal fiction of “absentee” and “abandoned property” in the direct aftermath of forcible and violent displacement, Israel forced Palestine to become “a land without a people,” ethnically cleansing Palestine into exclusively Jewish areas and disregarding Palestinian calls for self-determination.
Moreover, the Absentee Property Law continues to displace Palestinians today. In 2015, the Israeli Supreme Court approved the use of the law in East Jerusalem, which Israel occupied and annexed in 1967. By annexing the area, Israel was able to apply domestic law, including the Absentee Property Law, and expropriate property from Palestinians living in the West Bank. While the Supreme Court ruled that future seizures must be approved by ministerial committees and the Attorney General, expropriations are still allowed when done to Palestinians but not Israeli Jews. Outside of East Jerusalem, “the Dead Negev Doctrine” more directly demonstrates how terra nullius dictates the confiscation of Bedouin land, as Israel attempts to construct new settlements in the Negev, otherwise known as the Naqab in Arabic. Bedouins are a semi-nomadic people who began to permanently settle around the time the British Mandate of Palestine was established. During the Nakba in 1948, approximately 11,000 Bedouins stayed in the Naqab, becoming internally displaced within Israel and facing decades of land dispossession, exclusion, and discrimination. Today, Israel continues to argue that the land Bedouins reside on is “dead land,” a concept pulled from Ottoman law that defines land as “not possessed or cultivated by anyone” and is at least one and a half miles from inhabited areas—thereby becoming state land. Because Bedouins were nomadic until the British Mandate era, Israel argues that the land was “dead” and remained “dead” as Bedouins did not register the land in 1921 as required under British legislation, even though the British affirmed the land belonged to the Bedouin people.
Be it the words “absent” or “dead”, the State of Israel relied, and continues to rely, on terra nullius to further the dispossession of Palestinians and to carry out its settler-colonial project. Just as terra nullius enabled colonial projects to forcibly acquire land belonging to Indigenous communities, the same doctrine allowed the British and Israelis to portray the territory in the Palestinian Mandate as uninhabited, which would serve as the bedrock for Israel’s legal framework and forcible land acquisition. Instead of self-determination legitimizing Palestinian demands for self-determination, terra nullius—a foundational principle of colonial legal frameworks—has continued to undermine Palestinians’ right to self-determination.
Uti Possidetis Juris
In response to terra nullius, an additional legal doctrine emerged during the colonial era that preserved the territorial integrity of colonial powers: uti possidetis juris. Uti possidetis juris is originally derived from Roman law and related to the possession of private property. While matters of ownership were decided in court, uti possidetis juris dictated that items possessed in good faith, or not by fraud or force, were legally valid. Over time, uti possidetis juris became increasingly relevant in international law, particularly in relation to terra nullius, as it came to mean that “old administrative boundaries will become international boundaries when a political subdivision achieves independence.” Its primary aim was to “secure respect for the territorial boundaries which existed at the time when independence was achieved” and prevent new states from being endangered after an administering power had withdrawn.[35] This effectively meant that states created in territories that were previously under colonial rule gained the administrative borders of that territory, despite the existence of ethnic or national minorities who may have wished to create a separate state by exercising their right to self-determination. By introducing national borders that aligned with former colonial borders, uti possidetis juris ensured that no terra nullius was left in these newly independent territories.[36]
At the height of decolonization movements, self-determination was purported to serve as a vehicle to ensure that colonized peoples had the right to uti possidetis juris. The adoption of uti possidetis juris during decolonization demonstrated a desire to keep decolonization “orderly,” giving colonial powers the comfort and power of knowing what the boundaries of a decolonized world would look like.[37] By prioritizing stability and the will of former colonizers, however, uti possidetis juris kept the status quo intact and furthered the global order that colonial powers had created, rather than actualizing self-determination for formerly-colonized peoples.[38] The borders that uti possidetis juris sought to preserve, after all, were borders drawn by colonial powers and not by people who were themselves formerly colonized. In this way, the application of uti possidetis juris during decolonization ignored the political and social realities on the ground and did not take into account the wishes of those in formerly-colonized territories.[39] By limiting additional territorial adjustments during decolonization, uti possidetis juris thwarted colonized peoples’ right to self-determination, which may have involved territorial adjustments in certain cases.[40] Critics of uti possidetis juris, therefore, rightly point out that the doctrine legitimized a continued colonial dispossession of former colonies. Instead of allowing formerly colonized peoples to make their own political and territorial decisions or exercise their right to self-determination, uti possidetis juris forced minority groups to live within predetermined boundaries. This prioritization of stability and order over self-determination is one of the reasons many post-colonial states were and remain unable to reach the same level of stability and order as former colonial powers.[41] During decolonization, borders were exacted to deter post-colonial states from having territorial disputes and were biased towards borders that were already drawn. In many cases, these predetermined borders did not necessarily reflect the reality on the ground and the wishes of the people, leading to continued conflict today.
In the context of Palestine, Zionists have increasingly relied on uti possidetis juris to argue that Israel’s borders are, in fact, the borders of Palestine’s A Mandate. Legal scholars Avi Bell and Eugene Kontorovich—both affiliated with an Israeli think tank that has advocated for the annexation of the West Bank and the idea that the right to national self-determination in Israel is “unique to the Jewish people” —published an article in 2016 arguing that uti possidetis juris should be used to resolve Israel and Palestine’s border dispute because “it is generally accepted that the borders of newly formed states are determined by application of uti possidetis juris as a matter of customary international law.”[42] Bell and Kontorvich further argued that “[t]he doctrine even applies when it conflicts with the principle of self-determination,” relying on an argument originally put forth by Malcolm N. Shaw.[43] Shaw argues that while self-determination is applicable beyond colonial contexts, self-determination does not mean any group can decide “its own political status up to and including secession from an already independent State.”[44] This is because, in his view, this right should be limited to the territorial framework of existing states to avoid self-determination being used as a tool to dismantle sovereign states, prioritizing territorial integrity over self-determination. For this reason, Shaw argues that self-determination for Palestinians “cannot be taken to mean dismemberment of the State of Israel.”[45] Meanwhile, Bell and Kontorovich admit that uti possidetis juris undermines self-determination but believe that this undermining is justified as borders drawn on previously existing frontiers experience fewer territorial disputes and less militarized confrontation in the future.[46]
Bell and Kontorovich’s argument gained traction on the international stage when then-Vice President of the ICJ, Judge Julia Sebutinde, raised the same argument in her dissenting opinion on the Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including Jerusalem, issued in 2024.[47] The advisory opinion considered, among other things, the legal consequences arising from Israel’s ongoing violation of the Palestinian peoples’ right to self-determination and how Israel’s policies and practices impacted its legal status after occupation. Judge Sebutinde’s dissenting opinion argued that:
The situation in this part of the Middle East is different because as has been shown in the historical context, Israel is not a colonizer. It was Britain that originally held the mandate for Palestine, and the State of Israel was the only State to emerge as an independent State, inheriting the whole of the disputed territory under uti possidetis juris.[48]
Judge Sebutinde posits that because Israel was the only state to emerge when Britain withdrew from the Palestinian Mandate, uti possidetis juris gave Israel sovereignty over all of Jerusalem, the West Bank, and Gaza, save for cases in which Israel had voluntarily yielded sovereignty since its independence.[49] While Judge Sebutinde does not deny that Palestinians have a right to self-determination, she argues that the State of Israel also attained self-determination in 1948 and that, as such, Palestinian self-determination “should not disturb the application of the principle of uti possidetis juris.”[50]
Overall, uti possidetis juris emerged during the colonial era to preserve a colonial global order, transforming administrative borders into international ones and ensuring that there was no “empty land” that colonial powers could continue to fight to lay claim to. Today, however, Zionists continue to wrongfully put forth uti possidetis juris as a principle to further Israel’s settler-colonial project, and such arguments have reached the highest levels of the judiciary on the international stage, further squashing Palestinian demands for self-determination and maintaining a colonial global order.
Widening the Field of Discussion
We come back now to Edward Said’s call to “widen the field of discussion.” In the legal field, the law has long been used as a tool to oppress the Third World, and the Palestinian people have paid the price. While this Essay is being written, Palestinians continue to face extermination as Zionists and the State of Israel rely on colonial principles to justify Israel’s settler-colonial project. The lingering influence of the colonial order not only undermines the just application of international law but also continues to hollow out the right to self-determination. However, precisely because Palestine has long been treated as the exception, it “has the potential to provide new models for humanity, including legal orders that can make us whole, ones that Europe has not been able to deliver,” as Noura Erakat has previously stated.[51]
Palestine has tested the limits of self-determination and shown that imperial powers never considered the principle to be a liberatory tool for oppressed peoples worldwide, from this right’s inception to today. For over a century, Palestine has been left out of anticolonial liberation movements that have benefited other groups, Palestinian demands for self-determination have consistently been crushed, all while colonial legacies such as terra nullius and uti possidetis juris have attempted to ensure that a Palestinian state does not—and will not—exist. As this right is now outlined in international law, the problem lies not with the right itself but its application. For self-determination to move from the potential to the practical, and for human rights to be fully realized in Palestine and beyond, states must be willing to carry out the erga omnes nature of self-determination.
As recently as 2024, and in the wake of Israel’s genocide against the Palestinian people, the International Court of Justice affirmed in the Advisory Opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, that Israel has violated “certain obligations erga omnes,” including the “obligation to respect the right of the Palestinian people to self-determination.” In response to this violation, the Court dictated that U.N. Member States and the United Nations must take “concrete and effective measures,” which “implies not only mere diplomatic protests, but also refraining from any unconditional financial, economic, military or technological aid to the State of Israel, and punishing such violations where appropriate and in accordance with the relevant treaties to which they are parties.” U.N. Member States are thus positively obligated to coordinate with the United Nations to realize Palestinian self-determination, which includes abiding by the duties of cooperation to end violations of jus cogens norms and to fulfill obligations in the U.N. Charter in good faith, including duties of non-recognition, non-aid, and non-assistance or not providing aid that would be used to carry out international wrongful acts.
As Palestinians continue to resist in the face of genocide, over 140 U.N. Member States now recognize the full national sovereignty of Palestine. Slowly, public and political perception is beginning to acknowledge the Palestinian right to self-determination. Palestinians, however, should not have to wait for the legal community to heed their calls as the cost of time is human life. In the face of the international community’s failure to safeguard the right to self-determination, both as a principle and as an erga omnes obligation, states have argued that their lack of response has been due to the right to self-determination and states’ duties being unclear and vague. This is not a new criticism. For decades, scholars have highlighted the “dissonance between state practice and the conventional law on self-determination” that has left groups calling for self-determination without a functional international law theory. Even so, while Palestinians have been facing systematic extermination for over a century, they have, in fact, responded to these arguments, outlining their own right to self-determination in the international legal framework. What is not clear is whether the colonial order that continues to benefit from the colonial legacy of international law will finally respond.
Conclusion
Colonialism is often dismissed as a relic of the past, but it is an incredibly recent phenomenon. The domination of peoples around the globe was supported by a robust legal framework that justified colonial actions, privileged imperial powers, and subjugated indigenous populations. As the end of the 20th century saw the emergence of the principle of self-determination, states and international institutions created new laws and instruments that required imperial powers to confront growing demands for liberation. However, the case of the Palestinian people demonstrates that the promise of these laws has gone largely unfulfilled. Despite the development of the right to self-determination, the legal remnants of the colonial global order continue to hollow out its application today. In Palestine specifically, Israel’s reliance on terra nullius and uti possidetis juris creates a framework that continues to subjugate Palestinians and their rightful demands for liberation and self-determination.
This Essay examines two ways in which the law dilutes the right to self-determination in Palestine, but the ramifications of the prevailing colonial order extend beyond this context. Demands for self-determination are being made around the world, yet these demands are often left unfulfilled as legal frameworks continue to fail to reckon with the enduring legacies of colonialism. International law, however, need not—in fact, it must not—be stagnant. The law is built on prevailing norms that inform the values that society prioritizes. Precisely because law is a construct, it is malleable and able to respond to prevailing concerns and valid criticisms, and an honest reckoning of how colonialism continues to impact self-determination is overdue and essential to move towards a principled application of this right. As such, though international law continues to uphold a colonial global order and privilege occupying powers, hope remains for a liberated future—one in which calls for self-determination are not only heard but realized.
[1] Tina Al-khersan is a refugee and human rights advocate. Following her 2022 graduation from the University of Michigan Law School, Tina was awarded a JD Columbia Pathways fellowship to provide legal services to asylum seekers in Kos, Greece with Equal Rights Beyond Borders. Currently, she is a Policy Officer with the Syria Justice and Accountability Centre, where she works with policymakers to advance justice and accountability processes. Tina has published with the Harvard Law and Policy Review and Michigan Journal of International Law. Azadeh Shahshahani is the Legal & Advocacy Director at Project South and a past president of the National Lawyers Guild. She is a 2004 graduate of the University of Michigan Law School, where she was an Articles Editor at the Michigan Journal of International Law. She also has a Master’s degree in Modern Middle Eastern and North African Studies from the University of Michigan. The authors would like to thank the Editors of the Yale Journal of International Law for their insightful comments. Any mistakes are our own.
[2] Mosab Abu Toha, Things You May Find Hidden in My Ear: Poems from Gaza 15 (2022).
[3] Aureliu Cristescu (Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protec. of Minorities), The Right to Self-Determination: Historical and Current Development on the Basis of United Nations Instruments, ¶ 641, U.N. Doc. E/CN.4/Sub.2/404/Rev.1 (1981).
[4] Héctor Gros Espiell (Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protec. of Minorities), The Right to Self-Determination: Implementation of United Nations Resolutions, ¶ 75, U.N. Doc. E/CN.4/Sub.2/405/Rev.1 (1980) (explaining that the argument for self-determination being a jus cogens right is “widely supported”). See also Matthew Saul, The Normative Status of Self-Determination in International Law: A Formula for Uncertainty in the Scope and Content of the Right?, 11 Hum. Rts. L. Rev. 609, 641 (2011) (describing the different approaches to examining self-determination as a jus cogens right but arguing that scholars remain imprecise about what aspects of self-determination have jus cogens status); Robert E. Goodin & Steven R. Ratner, Democratizing International Law, 2 Glob. Pol’y 241, 241 (2012).
[5] The ongoing Nakba is a framework put forth by Rabea Eghbariah to understand the crimes committed against Palestinians as a result of Zionism. As explained by Eghbariah, other terms—such as settler colonialism and apartheid—both apply to Palestine but are also insufficient in capturing the nuance of the Palestinian context. The Nakba is a framework that fills this gap. Broadly, the Nakba that Israel has and continues to carry out against Palestinians attempts to erase the group dynamic and prevent Palestinians from exercising their political will as a group, which purposely excludes Palestinians from having the opportunity to exercise their right to self-determination. Rabea Eghbariah, Toward Nakba as a Legal Concept, 124 Colum. L. Rev. 887, 988 (2024) [hereinafter Nakba as a Legal Concept]. While there are other groups other than Palestinians that are purposefully excluded from exercising their right to self-determination, this Essay focuses on Palestine as a case study in an attempt to capture the nuance required for the Palestinian context, which is often treated as sui generis. Moreover, Israel’s ongoing genocide in Gaza and the broader Nakba underscores the urgency in confronting the normalization of Israel’s continuous denial of Palestinians’ right to self-determination.
[6] Palestinians are not and should not be seen merely as victims of Israel and its policies but as a people actively engaged in struggle. Since before the Nakba, Palestinians have resisted colonialism and imperialism. For more information, see Palestinian Youth Movement, Palestinian History Doesn’t Start with the Nakba, Mondoweiss (May 14, 2023), https://mondoweiss.net/2023/05/palestinian-history-doesnt-start-with-the-nakba/ [https://perma.cc/HC58-T4CG].
[7] Reconstructing international law necessitates new interpretations of international law—ones that acknowledge and respond to past injustices in a manner that empowers individuals from the Third World. Endalew Lijalem Enyew, Sailing with TWAIL: A Historical Inquiry into Third World Perspectives on the Law of the Sea, 21 Chinese J. Int’l L. 439, 440 (2022).
[8] The term “mission civilisatrice” refers to the belief held by colonial powers that colonialism and imperialism were necessary to “civilize” colonized peoples.
[9] This Essay does not claim to provide an exhaustive historical review of the right to self-determination, as such a review is beyond the scope of this paper. Rather, this Section discusses this right’s most critical developments during and shortly after the World Wars.
[10] Joshua Castellino, Territorial Integrity and the “Right” to Self-Determination: An Examination of the Conceptual Tools, 33 Brook. J. Int’l L. 503, 513 (2008). Castellino argues that self-determination emerged from the Enlightenment era, when Jacobean followers believed that an individual should be guaranteed the right to determine their own future. He then explains that this right gained prominence during the French Revolution.
[11] Allen Lynch, Woodrow Wilson and the Principle of ‘National Self-determination’: A Reconsideration, 28 Rev. Int’l Stud. 419, 422 (2002). As Lynch explains, the concept of self-determination was not one that related to national self-determination before World War I. During the mid-to-late 1800s, many nations were fighting for their independence, but their resistance efforts were defeated by existing colonial powers.
[12] See id. To name a few, Lynch mentions the Polish rebellion crushed by Russia in 1863, the Irish nationalist rebellion of 1916 crushed by the British, and European imperialism in the 1880s in Africa, among others.
[13] Castellino, supra note 10, at 514.
[14] Noura Erakat, Justice for Some: Law and the Question of Palestine 34 (2019) [hereinafter Erakat].
[15] In fact, President Wilson was later criticized by other individuals, who claimed he made “a tragic mockery of the principle of self-determination” and stifled “the cry of freedom” in various communities. Trygve Throntveit, The Fable of the Fourteen Points: Woodrow Wilson and National Self-Determination, 35 J. Soc’y Historians Am. Foreign Rel. 445 (2011) [hereinafter Throntveit].
[16] Matz argues that the Mandate System represented one of the first steps in decolonization, as former colonial powers were required to relinquish their legal authority over former colonies. While the Mandate System continued to allow colonial powers to have control over their trustees, the understanding was that the most developed states would have the potential to exercise self-determination. Palestine was included among these states. Nele Matz, Civilization and the Mandate System under the League of Nations as Origin of Trusteeship, 9 Max Planck Y.B. U.N. L. Online 47, 53-56 (2005).
[17] Tom Sparks, Self-Determination in the International Legal System: Whose Claim, to What Right? 98-99 (2023) [hereinafter Sparks].
[18] The Mandate System operated based on the idea of trusteeship, whereby former colonial powers administered overseas territories as trusts. Matz explains how the Mandate System perpetuated imperial policy by permitting foreign powers to continue ruling former colonies. Matz, supra note 16, at 54-56.
[19] Sparks, supra note 17, at 99-100.
[20] Id.
[21] Erakat, supra note 14, at 35.
[22] Comm. on the Exercise of the Inalienable Rts. of the Palestinian People, The Right to Self-Determination of the Palestinian People, U.N. Doc. ST/SG/SER.F/3 (1979). Given the United Nations General Assembly’s acceptance of the Palestinian right to self-determination in numerous resolutions, this study was prepared in 1979 for the body on the right of self-determination of the Palestinian people. Following Article 22 of the 1919 Covenant of the League of Nations, the Palestinian people’s right to self-determination was again outlined in numerous subsequent resolutions. Among these are Resolution 2672(XXV) of 1970, Resolution 3236 (XXIX) of 1974, Resolution 66/146 of 2012, and Resolution 67/158 of 2013. See Palestinian Self -Determination: Land, People, and Practicality 4 (BADIL Res. Ctr. for Palestinian Residency & Refugee Rts., Working Paper No. 28, 2021) [hereinafter BADIL Resource Center].
[23] Erakat, supra note14, at 26, 29.
[24] Id. at 31-32.
[25] Id. at 37.
[26] See Alex Zukas, Terra Incognita/Terra Nullius: Modern Imperialism, Maps, and Deception, in Lived Topographies and Their Mediational Forces 56-57 (Gary Backhaus & John Murungi eds., 2005).
[27] Robert J. Miller, American Indians: The Doctrine of Discovery, and Manifest Destiny, 11 Wyoming L. Rev. 329, 335 (2011). There were a variety of other settings in which Europeans applied terra nullius to occupied lands. Such territories included but were not limited to those settled by nomadic peoples. Europeans argued that such groups lacked territorial rights because they were not settled in the European sense, did not possess a concept of private property, or were short of intellectual creativity and spiritual values.
[28] The fact that self-determination is often intertwined with questions of territory should not come as a surprise. Indeed, as Patrick Wolfe explains, “Land is life—or, at least, land is necessary for life. Thus, contests for land can be–indeed, often are–contests for life.” Patrick Wolfe, Settler Colonialism and the Elimination of the Native, 8 J. Genocide Rsch. 387, 389 (2006). The ultimate goal of settler colonialism specifically is the “elimination of the native.” Id. As Wolfe explains, settler societies require the native to be eliminated to settle themselves on their territory, as settler colonialism is premised on the idea of obtaining and maintaining territory. Id. As Israel’s goal is to obtain and maintain Palestinian territory, elimination of the Palestinian native becomes necessary to achieve its objective, as seen with the historical and ongoing genocide.
[29] Alexandre Kedar, Ahmad Amara, & Oren Yiftachel, Emptied Lands: A Legal Geography of Bedouin Rights in the Negev 9 (2018).
[30] See Zukas, supra note 26. Zukas demonstrates the different ways Europeans relied on the concept of terra nullius. Across the different definitions, they all came back to the same core concept of the land belonging to no one, even if people were physically present on the land.
[31] Marcelo Svirsky, The Production of Terra Nullius and the Zionist-Palestinian Conflict, in Deleuze and the Postcolonial 221 (Simone Bignall & Paul Pattoon eds., 2010). Zionism differs from other scenarios where terra nullius was applied because no legal conflict emerged between the concept and native title claims, as was the case in Austria. Id. at 224. In Palestine, ethnonational arguments are used to dispose of and appropriate land. Id.
[32] Svirsky, supra note 31, at 225.
[33] Economic Cooperation Foundation, 1922 Census of Palestine (Oct. 23,1922), https://ecf.org.il/issues/issue/1087 [https://perma.cc/852Q-EMFP]; Economic Cooperation Foundation, 1931 Census of Palestine (Nov. 18, 1931), https://ecf.org.il/media_items/1086 [https://perma.cc/QM7D-GCWR].
[34] A dunam was used by the Ottoman Empire to measure land, where one dunam equaled approximately 1000 square meters.
[35] Frontier Dispute (Burkina Faso/Republic of Mali): Overview of the Case, Int’l Ct. of Just., https://www.icj-cij.org/case/69 [https://perma.cc/2VW4-XBZM]. As the ICJ notes, the principle of uti possidetis juris first emerged in Spanish America as it was the first to experience decolonization that involved forming sovereign states out of a former empire. Frontier Dispute (Burkina Faso/Republic of Mali), Judgment, 1986 I.C.J. 554, ¶ 20 (Dec. 22). The principle, however, is a general one and relates to independence where it occurs. In its judgment, the ICJ explained, “[i]ts obvious purpose is to prevent the independence and stability of new States being endangered by fratricidal struggles provoked by the challenging of frontiers following the withdrawal of the administering power.” Id.
[36] The boundaries could be altered upon the mutual consent of the state parties concerned. Patrick K. Muwanguzi, Reconciling Uti Possidetis and Self Determination: The Concept of Interstate Boundary Disputes 1 (2007). As the ICJ explained, “[T]he application of the principle of uti possidetis juris resulted in administrative boundaries being transformed into international frontiers in the full sense of the term.” Frontier Dispute, 1986 I.C.J. 554, at ¶ 23. Uti possidetis juris in this sense was implemented to prevent countries from interfering in the internal affairs of other countries and to allow people to exercise self-determination. However, as discussed later in this section, uti possidetis juris in many ways contributed to preserving a colonial understanding of the world. As Hasani also explains in his article, uti possidetis juris related to a principle of self-determination based on territorial claims and not ethnic claims, which somewhat legalized the expropriation of lands from Indigenous peoples. Enver Hasani, Uti Possidetis Juris: From Rome to Kosovo, 27 Fletcher F. World Aff. 85, 86 (2003).
[37] Steven R. Ratner, Drawing a Better Line: Uti Possidetis and the Borders of New States, 90 Am. J. Int’l L. 590, 610 (1996). In addition to keeping decolonization orderly, such decolonization efforts strove to avoid delay and conflict.
[38] Vanshaj Ravi Jain, Frozen Frontier: Uti Possidetis and the Decolonization of South Asia 3 (2019) [hereinafter Ravi Jain].
[39] Ratner, supra note 37, at 610. The borders drawn by colonial powers ignored the local realities of the post-colonial states created during decolonization struggles, contributing to some of the territorial conflicts observed throughout history and into today. As such, territorial integrity and the ability to adjust borders is a conversation that is most relevant to post-colonial states. In response to these criticisms, alternative interpretations of the application of uti possidetis juris in today’s modern world have been suggested. While studying each proposed model is outside the scope of this Essay, the existence of the varying criticisms and proposed alternative models demonstrate a need for the international legal community to move beyond the historical application of the principle.
[40] Ratner, supra note 37, at 591.
[41] See, e.g., Aman Kumar, A Relook at the Principle of Uti Possidetis in the Context of the Indo-Nepal Border Dispute, 12 Jindal Glob. L. R. 95 (2021) (examining the finalized border between Nepal and India, demonstrating how the colonial border drawn in 1816 disregarded socio-political realities); Tayyab Mahmud, Colonial Cartographies, Postcolonial Borders, and Enduring Failures of International Law: The Unending Wars along the Afghanistan-Pakistan Frontier, 36 Brook. J. Int’l L. 1 (2010).
[42] Abraham Bell & Eugene Kontorovich, Palestine, Uti Possidetis Juris, and the Borders of Israel, 58 Ariz. L. Rev. 633, 635 (2016) [hereinafter Bell]. Bell and Kontorovich are both involved in leading the Kohelet Policy Forum—a think tank that strives “to secure Israel’s future as the nation-state of the Jewish people.” Team, Kohelet Policy Forum, https://www.kohelet.org.il/en/team/ [https://perma.cc/QJ56-SWHJ]. The Kohelet Policy Forum has historically advocated for the annexation of the West Bank and has argued that the right to national self-determination in Israel is “unique to the Jewish people.” Shira Rubin, The Secretive Israeli Think Tank Behind Netanyahu’s Judicial Overhaul, Wash. Post (Mar. 24, 2023), https://www.washingtonpost.com/world/2023/03/24/israel-kohelet-judicial…;[https://perma.cc/5MK4-U8RX]. Kontorovich has also described himself to be a part of a group that is unapologetically Zionist. Occupation, Ethnic Cleansing, Settlements – the Myths of the Anti-Zionists, Santa Fe Middle East Watch (May 21, 2023), https://www.sfmew.org/international-law-kontorovich/ [https://perma.cc/HUA9-WFZ4].
[43] Bell & Kontorovich, supra note 41, at 635 (citing Malcolm N. Shaw, The Heritage of States: The Principle of Uti Possidetis Juris Today, 67 Brit. Y.B. Int’l L. 75, 115 (1996)). Malcolm Shaw is a British lawyer who recently represented Israel in the ICJ case South Africa brought against Israel. Jeremy Scahill, At the Hague, Israel Mounted a Defense Based in an Alternative Reality, Intercept (Jan. 12, 2024), https://theintercept.com/2024/01/12/icj-israel-genocide/ [https://perma.cc/M8ML-CE7B].
[44] Malcolm N. Shaw, The Heritage of States: The Principle of Uti Possidetis Juris Today, 67 Brit. Y.B. Int’l L. 75, 121-25 (1996).
[45] Id. at 123 n.242.
[46] Bell & Kontorovich, supra note 41, at 643.
[47] Judge Julia Sebutinde has been accused of plagiarizing excerpts of her dissenting opinion. For more information, see Rayhan Uddin, ICJ President Accused of Plagiarism in Dissenting Opinion on Israeli Occupation, Middle East Eye (Jan. 27, 2025), https://www.middleeasteye.net/news/icj-president-accused-plagiarism-dissenting-opinion-israeli-occupation [https://perma.cc/66AD-UDEU].
[48] Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Advisory Opinion, 2024 I.C.J. 1, ¶ 62 (July 19, 2024) (dissenting opinion by Sebutinde, J.).
[49] Id. at ¶ 73.
[50] Id. at ¶ 79.
[51] Erakat, supra note 14, at 240-41.