Following the Hamas-Fatah reconciliation agreement, the Australian government has officially announced that they no longer consider East Jerusalem occupied. They believe that it should be left as a final status issue in peace negotiations and no one should prejudge its status. Their position is backed up by international law.

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In the wake of Fatah-Hamas reconciliation, the Australian government has declared that they no longer consider East Jerusalem “occupied territories.”  The Australians stressed, “The description of East Jerusalem as ‘Occupied East Jerusalem’ is a term freighted with pejorative implications, which is neither appropriate nor useful.”  The description of areas which are subject to negotiations in the course of the peace process by reference to historical events is unhelpful.” Haaretz noted that the statement emphasized that “historical events” refers to Israeli control of the West Bank and East Jerusalem in 1967.

In a statement given to the media, the director of the Executive Council of Australian Jewry, Peter Wertheim, explained their governments’ decision: “The Federal Government is simply being realistic. Jerusalem has not been a divided city since 1967 and it would be both wrong and impractical to try to turn back the clock.”

“The fact that the United Nations routinely refers to parts of Jerusalem as occupied by Israel does not make such language sacrosanct,” Wertheim noted. “Between 1948 and 1967, Jordan controlled and even purported to annex the West Bank and East Jerusalem. It had acquired these territories in a clear-cut war of aggression, yet the territories weren’t designated as occupied. It is hypocritical to use this language simply because Israel is in control, especially as Israel’s control results from a war of self-defense in 1967.”

The Australian position is backed up by international law. In an article written in Commentary by international legal scholar Eugene Kontorovich, who teaches at Northwestern University, it is highlighted that the doctrine of uti possidetus iuris dictates that a country’s last official boundaries, even if they are colonial, are the borders of a given a country. He explains this is why international law recognizes that the Crimea is part of Ukraine, even though the majority of the population is Russian.

Applying these same principles to Israel in 1922, the League of Nations established the Mandate for Palestine with the express purpose of establishing a Jewish national home. Under international law, the borders of Israel are supposed to run from the river to the sea due to the principle of uti possidetus iuris. It was the League of Nations Mandate, Israel’s Declaration of Independence and her War of Independence that made her a country, not any UN Partition Plan. Kontorovich stresses that this can only be changed if an event occurs that can legally modify this.

Kontorovich emphasizes that nothing has occurred since 1922 to change Israel’s borders according to international law. The UN Partition Plan was a General Assembly resolution. These aren’t legally building by their very definition and whatever potential binding nature it could have had was canceled when the Arab side rejected it. The Armistice Lines of 1949 are also not borders under international law, as they represent nothing more than temporary agreements to stop the shooting. It was even written in the Armistice Agreements themselves that they cannot be considered borders. Furthermore, UN Security Council Resolution 242 didn’t explicitly refer to Chapter VII of the UN Charter, which implies that it is merely a recommendation and is not legally binding.

Aside from the points mentioned in Kontorovich’s article, Jordan’s annexation of the West Bank and East Jerusalem was never accepted by the international community. When Israel made peace with Jordan in 1994, Jordan relinquished their claims to the West Bank and East Jerusalem. There was never an independent Palestinian state in human history in the area to make a valid legal claim that counters the Mandate of Palestine. Even Palestinian nationalism itself did not exist prior to the late 1920’s and early 1930’s. Given this, despite having a demographic majority in the West Bank and certain areas of East Jerusalem, Palestinians find themselves in a similar legal situation to the pro-Russian people of the Crimea. The law is not on their side.

These facts highlight that it is therefore inappropriate to refer to the West Bank and East Jerusalem as occupied. This is especially the case in East Jerusalem, where Israel has annexed the territory and offered Israeli Blue ID cards to all of the Palestinian residents of the Holy City. As Wertheim concluded, “The Australian government is correct in stating that the Israelis and Palestinians themselves have agreed that the final status of Jerusalem is to be worked out through direct negotiations and that the use of loaded language by others, which prejudges the issue, serves no constructive purpose.”