The case against annexation

The question of Israel "annexing" Gaza, Judea and Samaria has generated considerable international debate. Yet according to some legal scholars, this controversy rests on a fundamental misunderstanding of international law. The territories in question, they maintain, cannot be annexed because they are already legally part of Israel under a major pillar of international law.

The cornerstone of this argument lies in a doctrine known as uti possidetis juris, which holds that new states inherit the borders of the previous top-level administrative units that governed their territory. When the Ottoman Empire ended after World War I, the League of Nations established the British Mandate for Palestine, explicitly recognizing the historical connection of the Jewish people with Palestine and calling for the establishment of the Jewish national home.

These mandate borders, established in 1922, include what is now Israel, the West Bank (Judea and Samaria), and Gaza. Professor Eugene Kontorovich of George Mason University's Scalia Law School argues that Israel inherited these borders upon independence, making discussions of annexation legally redundant. "You cannot occupy territory to which you already have sovereign claims," he maintains.

The UN partition plan of 1947, often cited as defining Israel's borders, was merely a non-binding recommendation. The UN General Assembly lacks authority to create states or determine borders. Jordan's subsequent occupation of the West Bank from 1948 to 1967 did not confer sovereignty—a fact recognized by the international community, as only Britain and Pakistan ever acknowledged Jordan's attempted annexation.

The situation with the Golan Heights presents an interesting contrast. Initially included within Mandatory Palestine, the territory was transferred to French control in 1923 through the Franco-British Agreement. This transfer, made primarily to accommodate a local Bedouin chief's request, deviated from the San Remo Conference's original mandate. Consequently, when Israel later gained control of the Golan Heights in 1967, formal annexation was necessary precisely because it fell outside the original Mandate borders.

Both presidents Trump and Biden have recognized the legitimacy of Israel’s annexation of the Golan Heights. Today the Golan is being used by the IDF to protect Israel from any possible threats from Syria.

This legal position becomes clear when compared to other territorial disputes. For example, the international community maintains Ukraine's sovereignty over Crimea despite Russian occupation because Crimea was part of the Ukrainian Soviet Socialist Republic when the USSR dissolved. Similarly, demographic arguments about the West Bank's Palestinian majority do not override Israel's inherited sovereign rights under uti possidetis juris.

UN Security Council Resolution 242 (1967) carefully omits the word "all" when calling for Israeli withdrawal "from territories occupied in the recent conflict." Lord Caradon, the resolution's primary drafter, later explained this omission was deliberate, recognizing Israel would not be expected to return to the pre-1967 lines because they are not borders only cease fire lines.

The 1993 Oslo Accords created a complex administrative regime, with the Palestinian Authority exercising civil control in certain areas. However, this represented a voluntary delegation of administrative authority by Israel, not a recognition of Palestinian sovereignty. The PA collects taxes, runs schools, and maintains internal security in Area A—but ultimate sovereignty remains with Israel under international law.

Critics may argue this analysis ignores Palestinian aspirations for statehood. However, international law distinguishes between claims based on self-determination and established sovereign rights. The Palestinians' desire for self-determination, while legitimate, does not automatically override Israel's inherited sovereign claims under uti possidetis juris.

The principle that military conquest cannot confer sovereignty cuts both ways. If Jordan's 1948 conquest could not legally alter the territory's status, neither could Israel's recapture of the area in 1967 be considered an "occupation" of foreign territory. As Kontorovich notes, a country cannot legally occupy territory to which it has sovereign authority.

None of this precludes the possibility of territorial adjustments through negotiation. States can voluntarily cede territory, as Israel did with the Sinai Peninsula under the Egypt peace treaty. But this is fundamentally different from being legally obligated to withdraw as an occupying power.

This framework explains why Israel maintains different administrative arrangements in different areas—full Israeli law in East Jerusalem, military administration in parts of the West Bank, and Palestinian Authority civil control in others. These varying governance structures do not diminish underlying sovereignty claims, just as a nation's decision to grant limited autonomy to certain regions does not negate its sovereign rights.

In article 16 of the Treaty of Lausanne the new Post Ottoman government of Turkey signed off on all claims to the Mandates on July 24, 1923: “Turkey hereby renounces all rights and title whatsoever over or respecting the territories situated outside the frontiers laid down in the present Treaty and the islands other than those over which her sovereignty is recognized by the said Treaty, the future of these territories and islands being settled or to be settled by the parties concerned.”

During the recent White House meeting between the king of Jordan and President Trump the king said: “We must together, along with Arab partners and the international community, step up efforts to reach a ceasefire in Gaza and immediately start working to create a political horizon that leads to a just and comprehensive peace...” 

The solution to the Israeli Palestinian conflict must be sought through negotiation between concerned parties in the Middle East, Europe, and America.