10 May 2007 – Property law and the peace process

A few weeks ago, I considered the implications of American contract law for the Israeli-Palestinian peace process. Today, with a property exam looming in the morning, I’m going to try applying some ideas from U.S. property law. Of course, Israel has a different legal system—one incorporating elements of Ottoman law, English common law, and religious laws—but it’s a neat way to look at the issues.

Take, for example, the question of where to put the new boundary. Property cases typically look first at the relevant statute, which in this case would be U.N. Security Council Resolution 242. However, the statute is unclear: the English version requires Israel to withdraw from “territories,” while the French version calls for withdrawal from “des territoires,” which could be construed as “[all] the territories.”

This would invite an examination of the legislative intent behind the resolution, which seems to weight in favor of the English version, allowing Israel to withdraw from some of the land, but there might be a expectation that “some” means “almost all.” (There is considerable dispute about whether the Fourth Geneva Convention, governing occupied territory, should apply as well—I deal with this issue below.)

Another factor courts consider in property disputes is the weight of precedent and the role of the judiciary in resolving such disputes. Interestingly, while the International Court of Justice has ruled on Israel’s security barrier in the West Bank, it has never been asked to rule on the Israeli-Palestinian border. This would suggest it is up to the parties to negotiate themselves, without legal intervention.

Then there is the issue of rights or fairness. Even with full withdrawal, Israel will have the dominant share of what was once Mandatory Palestine. That did not, and does not, match demographic patterns, but the Palestinian leadership rejected more favorable partitions. So fairness, here, will not be synonymous with an equal division of land—but perhaps it must be squared with an equal protection of rights.

The question is: rights to what? There are two answers: first, the right to viable statehood, with security and the potential for prosperity for both sides; and second, the right to property for individuals within each state. This would imply that the border must aim to achieve contiguity, and that departures from the 1967 lines, whether for Israeli public or private property, must be offset by land swaps.

There are also lingering questions about the property rights of refugees—both Arab refugees who left what is now Israel, and Jewish refugees who left their homes in Arab countries. The claims might be thought to offset each other, and compensation in the form of damages could be determined to settle remaining claims; perhaps some injunctive relief, in a limited “right of return,” would also be possible.

Courts also consider questions of social utility or efficiency in property disputes. It is hard to imagine Israeli enclaves within a Palestinian state as an efficient outcome; it is also hard to imagine the original 1967 boundaries as efficient, since they left Israel extremely vulnerable. It might well be that border adjustments and land swaps would be more efficient than simply returning to the 1967 lines.

Finally, courts examine the question of formal realizability or administrability—whether a rule or a flexible standard would be more appropriate. The rule approach—“the territories”—would create greater certainty. An alternative rule is also being created by the path of the security barrier. Both of these “rules” are really based on military outcomes at particular stages of the conflict.

It might be that the flexible standard that is implied in a negotiated, adjusted boundary might actually be less arbitrary. And a successful negotiation over boundaries could lead to successful negotiations in other areas—refugees, Jerusalem, and beyond—that could strengthen the overall relationship between the two parties and create greater scope for international law to apply to the region.

So property law would seem to suggest that a negotiated boundary, departing from the 1967 lines but adjusted with land swaps and aiming at mutual viability, would be the best approach to the border issue. But there are a number of other issues that inevitably arise in complex, intractable conflicts over land such as the Israeli-Palestinian conflict. And these, too, must be identified and addressed.

One is the question of aboriginal title. Who is the original rightful owner of the land between the Jordan and the Mediterranean? Does their title still exist? What difference does it make? Both sides claim a form of aboriginal title; both claim occupancy going back thousands of years; both point to their own religious texts as title deeds. These are irreconcilable claims, which might simply have to cancel out.

The rule of perpetuities—which prevents a property owner from creating a property interest that will not vest within one generation (twenty-one years, under the common law) would suggest that past promises or claims that have not yet vested should be disregarded. Land disputes in the conflict should not be settled on the basis of history, but on the basis of the varied property interests that exist today.

That might tend to favor Israel—certainly if the doctrine of adverse possession is considered. Adverse possession allows a property owner who does not hold title to claim a piece of land if she possesses it in a way that is open, notorious and visible; if her possession is “hostile”—that is, without consent; if her possession is continuous; and if her possession has lasted a specified, statutory amount of time.

It might be argued that Israel has a claim to the West Bank, or that Israelis have a claim to lands there (even private land owned by Palestinians) on this basis. The Palestinian leadership did wait more than twenty years (the typical statute of limitations) before asserting a claim to statehood in the West Bank and Gaza (which Arafat only announced in 1988, twenty-one years after the 1967 war).

However, the doctrine also includes an allowance for disability: if the owner is somehow prevented from asserting his claim—as the Palestinians arguably were by the Israeli occupation—then the period should only be counted from the moment that disability ends. Perhaps the tolling should have started in 1988, or with the Oslo accords in 1993—in any event, the adverse possession claim is precluded.

One way to resolve border issues, as well as competing public and private property claims, among others, might be to invoke the concepts of servitude, easement and covenant. A servitude is a right to use a piece of land without possession of it; an easement is such a right, defined for a specific purpose. A covenant is a contract that may “run with the land” and impose certain burdens or obligations on owners.

Here are a few examples of how these concepts could be applied. Sovereignty over holy sites could be held internationally, but both Israel and Palestine could be granted equal easements. The rights of Israeli settlers could be preserved, but with easements for Palestinians or restrictive covenants against further expansion. Palestinian easements could be granted in Israel proper, in lieu of a right of return.

Whether easements and covenants are used, or whether the final peace agreements involve a Gaza disengagement-style pullout of all Israeli soldiers and civilians, there will be takings of property on both sides. A taking occurs when the state acquires private property, actually or effectively, by removing the owner, destroying the property or severely disturbing the owner’s use and enjoyment of it.

There are, generally, two kinds of takings—both of which involve a taking by the government for public use without just compensation. Per se takings involve “permanent physical invasions” of property, or regulations that “completely deprive an owner of all economically viable use of her property.” Zoning laws are not per se takings, but other forms of government action may be, if severe enough.

Then there are ad hoc takings that measure government against a test of “fairness and justice” according to several factors that weigh the relative public and private interests. These factors are usually the economic impact of the regulation; the degree to which the government action interferes with reasonable investment backed expectations; and the character of the government action involved.

There is no doubt that the Israeli occupation and settlement policy involves various kinds of takings, without just compensation, from Palestinians; it is equally true that removing Israeli settlers who have invested in private property also involves takings (although perhaps a somewhat lesser one, since the settlements are heavily subsidized by the Israeli government). What is fair and just in this context?

Here there may also be statutory guidelines to follow, in the form of the Fourth Geneva Convention, which deals with the protection of civilians in wartime and in occupied territories. In 2004, for the first, time, the Israeli High Court applied the Fourth Geneva Convention to the West Bank in issuing a ruling requiring the government to move the security barrier from its original route.

The court referred to Articles 27 and 53 of the Convention, which protect people and property, respectively. Article 53 in particular prohibits any taking or destruction of property except where absolutely necessary for military purposes. The court interpreted this to mean that any such taking must also be compensated, and that the rights of the occupants must be weighed against the security needs at stake.

This provides some direction in determining how to approach the takings involved in occupation and withdrawal. It might be said that full withdrawal is a form of injunctive relief; however, there would still be claims remaining, especially if the withdrawal is not to the 1967 borders, and also in the unlikely but possible event that some settlers decide to remain as Palestinian citizens (in Hebron, for example).

Some of the Israeli takings would be deemed justified by military necessity; others would not; and there would also be the question of how much compensation, if any, would be due after the occupation officially ends. There are two factors that might need to be balanced: on the one hand, the fundamental principles of fairness and justice; on the other, the need to deter Palestinians from using terrorism in future.

Professor Alan M. Dershowitz argues that the steady reduction of the Palestinian share of the land over time has been justified by the repeated choice of violent tactics. If this argument holds, then it might be better to treat Palestinian claims for compensation or land swaps more circumspectly. However, compensation that is seen as unfair may only stoke future resentment. Both factors must be considered.

That is about as far as I can see into the conflict using my fairly limited—and still unpracticed—property lens. It is unlikely that the Israeli-Palestinian conflict will be resolved through judicial processes. But the peace process, and the agreements it will one day yield, will be judged by the court of public opinion in each nation and in the world at large. Justice, as well as peace, must be seen to be done.