When is a Treaty Ceding Territory Not a Treaty Ceding Territory?
by Julian Ku
I am not sure if it is a trend, but recently several nations have raised dubious legal claims over territory that was ceded away by treaty. For instance, Spain has zero legal claim to Gibraltar, as far as I can tell, unless the 1713 Treaty of Utrecht ceding it to Britain “in perpetuity” can be wished away. Bolivia has zero legal claim to the port it seeks from Chile, unless the 1904 treaty ceding it to Chile can be ignored as well. And in the latest example, Nicaragua is raising a claim to portions of territory it ceded to Costa Rica, despite having signed a clear treaty of cession doing so.
The problem with this trend is obvious. If treaties can’t settle territorial claims because they can always be reopened later, then the utility of having the treaty in the first place is decreased substantially. This poses a danger to the whole point of having international law for defining territorial boundaries. I expect and hope the ICJ will reject these silly but dangerous claims in the Bolivia case. But the broader international law community should be worried about this trend as well.
Now, you may think this would support a negative critical view of Israel in the future. That is, if Israel cedes territory to the to-be-established-state-of-Palestine, perhaps a future government would demand that territory's return.
Of course, there is another way of looking at it.
Before the state of Israel was established, the World Zionist Organization accepted the first partition (Sykes-Picot) of the Jewish homeland, and then in 1922, the second, when TransJordan was removed from the ability of Jews to move there and reside there and then in 1947, the UN Partition, which the Arabs refused to accept in principle, as they did with an earlier suggestion in 1937.
Territory was handed back in 1957 to Egypt after the Sinai Campaign, in 1981 in the framework of the Egypt-Israel Peace Treaty and to Jordan in 1994.
But the ceding of territory has not halted the Arab demands for all of Israel.
Even if Israel cedes territory, does that not only not placate Arabs but they will they at some future date perhaps renew hostilities.
After all, that's what happened in 2005 and the Gaza Disengagement.