History – The Challenge of International Law

Top-10-international-law-developmentsIn December 2017, US President Donald Trump officially recognized Jerusalem as the state capital of Israel. in 2019, he considered recognizing the Golan Heights as a part of Israel and to see much more assertive use argument of history: “After 52 years it is time for the United States to fully recognize Israel’s Sovereignty over the Golan Heights”. This decision was problematic not only because Israel and Palestine have a territorial dispute over Jerusalem, but also because Israel considers possession of Jerusalem as a consequence of the historical justice.

International law does not recognize history as a source of legal dispute settlement. Serbia had an argument over the status of Kosovo and reiterated that Kosovo was a historically indispensable part of Serbia, but opposition to this, statements were made by the Western officials, that the history could not be considered as a part for international disputes. but why?

First of all, it is noteworthy that according to the Chapter 38 of the International Court of Justice, there are four sources of international law: treaties, customs, norms recognized by civilized states, and legal works and judgments. All other circumstances may be considered as other means, but not the main sources of settlement and solution.

But if we let history to become the source of international law, what would change? A precedent has high importance within international relations. It will able to influence further territorial claims and disputes and make loopholes into the current international law. But there are other dimensions:

From what moment of history should we begin to estimate the historical justice? If we take the example of the first century BC, then someone like Mussolini can claim the whole Mediterranean sea as a part of Roman influence and its historical successor – Italy. If we say that the post-Congress of Vienna system is the key then suddenly Russia’s aggression on it neighbours would not be so outlandish and detrimental to international law anymore. Accordingly, history, in this case, has a problematic impact on legal disputes.

History has one more big challenge – it is not always impartial and often being of a subject to interpretation. In international law, there are cases where the documents themselves are subject to extensive interpretation and if that’s true then it is obvious that they can be irrelevant and problematic to estimate and assess historical events as the truth. It is difficult to talk about the accuracy of certain historical boundaries, events, documents and agreements.

And one more challenge: if country occupy land in the adjacent neighbouring country then how long does it take to become a part of history? For example, Austria-Hungary occupied Bosnia in 1878 but did not annex before  1908. For many, it was natural, because Bosnia was occupied “enough” time to legitimize annexation by the empire. Accordingly, it is very sensitive to be guided by history.

Conflict settlement through historical justice can pave the way for other conflicts. The precedent can be used and emulate by other states. Recognition of historical justice as a subject of international law can become an excuse for further conflicts.

It is enough to consider the issues mentioned above to see how many problems of historical justice has. Israel, since establishment almost always was a subject of intrusion from the one or another Arab state. Since created in 1948 by the United Nations Resolution in Palestine (the area of the Levant region, not the country), Israel became a victim of an illegal war by the Arab states. Israel won and restore order, but not for long. Post-war conditions did not define the status of Jerusalem, as well as recognition of Israel by its neighbouring countries, therefore, it did not guarantee further peace. The eastern part of Jerusalem remained in the hands of the Arabs till 1967.

The 1960s began with a desire to revenge by the defeated Arab states – Egypt, Syria, Jordan and Lebanon. Mobilization and sabotage efforts became the pretext for the preventive war from Israel in 1967, which followed the occupation of East Jerusalem and the Golan Heights. Later both annexed by Israel. This was one of the most important reasons for the continuing conflict. But can preventive strike enough to annex lands?

The most Arab states are demanding the restoration of the pre-1967 war borders of East Jerusalem, but Israel underlines the importance of recognizing a new reality and indicates that all Jerusalem is a part the state of Israel. She is trying to become a guarantee of stability and development in Jerusalem, which is actually a successful part of the story. The territorial dispute that can be resolved by the accordance of historical justice can become a pretext further disputes.

Of course, this does not mean that history in international relations or international law is valueless. Declaration such statement would be a naive and fundamental mistake since the good relations or hostilities between states often have historical grounds, especially if there are innate positive or negative approaches and narratives spread widely. This does not mean that these approaches cannot be altered, but the denial of their role would be wrong.

Historical and de-facto realities often have a higher importance than laws itself. This is especially true in power-politics where the zero-sum game has prevailed. Often, international law is a subject of another mean to coerce and influence. This is a norm in a Realism tradition of international relations.

Despite that international law is not fully independent from the political and historical changes attitudes, it should be mentioned, it still is one of the pillars of more or less stable (or at least not chaotic) world order.

Giorgi Koberidze
Senior Fellow

The opinions and conclusions expressed are those of the author and do not necessarily reflect the views of The Foreign Policy Council.

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