Gaza: Which Country Has Best Claim

Before Trump proceeds, the issue of which country has the best claim to Gaza must be established.

President Donald Trump and Israeli Prime Minister Benjamin Netanyahu addressed reporters at the White House last week, during which the president laid out his plan for the US to “take over” Gaza.

The president elaborated further that his plan is to temporarily relocate Palestinians to neighboring countries during rebuilding efforts of up to 10 years and redevelop the war-torn enclave into what he described as the “Riviera of the Middle East.”

But before Trump proceeds, the issue of which country has the best claim to Gaza must be established.

Two Questions

There are two key questions that must first be answered if Trump is to follow through with his plans for Gaza. An appropriate response to either of these could lead to his gaining legal control over that coastal enclave. The first interrogative deals with borders:

What were the borders of Israel when it was first established? 

What defines this is the borders at the moment of independence. Israel was created, like many countries, after a successful war. In international law, there is a clear rule regarding the establishment of new countries:

The country’s borders are determined in accordance with the borders of the previous political entity in that area.

So, what legal entity existed before Israel – the British Mandate. And what were the established borders of the British Mandate?

From the Mediterranean Sea to the Jordan River.

The UN General Assembly’s declaration on November 29, 1947, was a “recommendation for partition” rather than a nonbinding resolution. What actually defined the situation was what the Mandate did, and it neither accepted the recommendations nor put them into force. During Israel’s War of Independence, Jordan and Egypt conquered territories from Israel illegally (by aggression – in violation of Article 2(4) of the UN Charter).

It was almost universally agreed that neither Jordan nor Egypt had any legitimate claim of sovereignty over Judea and Samaria (West Bank) or Gaza – Israel did. When Israel liberated the territories in 1967 – a fortiori – it renewed its control over lands that it had sovereignty over based on the original Mandatory borders and consistent with international law.

Gaza and the West Bank are not occupied territories. These are lands over which Israel has sovereign claims. In fact, there are many examples where a nation has sovereignty, but it provides a uniquely different governing arrangement with one of its territories. One example is American Samoa. It has its own administration, but without independence. The residents don’t have citizenship, and they can’t vote in US elections.

The second question that could be answered affirmatively for Trump to proceed is:

Does the UN recognize the inherent right of self-defense if an armed attack occurred and there is loss of territory by the aggressor nation to the defending state?

The signing of the United Nations Charter in 1945 marked a turning point in the international legal order. Two key provisions of the Charter influenced the discourse on territorial conquest:

Article 2(4): Prohibited the use or threat of force against the territorial integrity or political independence of any state.

Article 51: Recognized the inherent right of self-defense if an armed attack occurred.

While these provisions emphasized the importance of territorial integrity, they did not explicitly prohibit land acquired in self-defense. By remaining silent on the matter, this left land acquisition ambiguous, especially when defensive wars were deemed necessary to ensure national security.

Customary International Law

Customary international law, historically, treated defensive wars as an exception to the total prohibition on territorial conquest. A state acting in self-defense could retain captured territory essential to its future security. This view was used to legitimize territorial acquisitions following defensive conflicts.

Despite the growing focus on territorial integrity, legal precedents before 1967 demonstrated the legitimacy of territorial gain in defensive wars. For instance:

Post World War II

The Allied Powers justified retaining or redistributing territory for security reasons, such as the division of Germany and the annexation of parts of Eastern Europe by the Soviet Union.

China and Tibet

China asserted control over Tibet after a military invasion in 1950, completing its claim through the Seventeen Point Agreement in 1951.

India and Goa

India’s annexation of Goa from Portugal in 1961 was defended as a measure of self-defense, reflecting how states could have territorial acquisition in defensive terms.

Indonesia – West Papua

Following military pressure and a UN-brokered agreement, Indonesia took control of West Papua from the Netherlands under the 1962 New York Agreement.

Israel’s War of Independence

The 1948 Arab-Israeli War offers a notable example of how international law treated territorial gains resulting from defensive wars before the Six-Day War. Following its War of Independence, Israel retained territory beyond the boundaries outlined in the 1947 UN Partition Plan. While armistice agreements established ceasefire lines, they were not recognized as formal borders but indicated a degree of acceptance of territorial realities resulting from defensive actions. As the only emerging state after the end of the British Mandate and based on the principle of Uti possidetis juris the entire territory between the Jordan river and the Mediterranean Sea is sovereign Israeli territory, according to customary international law.

The Six-Day War marked a watershed moment in the discourse on land conquest in defensive wars. Israel, acting in preemptive self-defense, captured Judea, Samaria, East Jerusalem, Gaza Strip, Sinai Peninsula, and Golan Heights. The international response dealt more with political agendas regarding the Middle East and oil than any basis in law. The result was UN Security Council Resolution 242 – declaring the “inadmissibility of the acquisition of territory by war,” reflecting the shift toward a rejection of Israel’s right to defensive acquisition of territory.

Before 1967, international law treated the conquest of land in defensive wars with notable ambiguity. While aggressive conquest was increasingly condemned, defensive wars often provided a legal basis upon which states justified territorial acquisitions.

Yet, even after 1967, there are instances where the UN did not strongly condemn territorial acquisitions, even when they were framed as “defensive actions.”

Turkey’s Invasion of Cyprus

After a Greek-led coup in Cyprus in 1974, Turkey invaded the northern part of the island, citing self-defense and the protection of Turkish Cypriots. While the UN condemned the invasion and called for a ceasefire, it did not demand that Turkey withdraw immediately.

This arc of customary international jurisprudence reflects a double standard in the commitment to territorial integrity, peaceful conflict resolution, and the rule of law. Such historical trajectory reveals politically-driven inconsistencies under international law.

Yet, the answer to the first question is controlling and sufficient to provide the basis for recognition of Gaza as Israeli territory. A country’s borders are determined in accordance with the borders of the previous political entity in that area.

Even with the ex post facto promulgation of 242, when Israel liberated the territories (Gaza and the “West Bank”) in 1967, it renewed its control over lands that it had sovereignty over based on the original Mandatory borders:

From the Mediterranean Sea to the Jordan River.

Israel has the best claim to Gaza; thus, Trump needs Israel’s acquiescence to legally proceed.