Sign up now to receive our regular news briefs.

The United Nations Does Not Create States

November 30, 2012 4:20 pm 4 comments

The results of a United Nations vote on the status of the Palestinian Authority.

The passage of U.N. General Assembly Resolution 181, also known as the Partition Plan, on Nov. 29, 1947, marked an enormous moral victory for the Jewish people in their effort to gain international recognition for their right to Jewish state. Five months later, David Ben-Gurion declared Israel’s independence, referring to the U.N. General Assembly’s partition resolution from Nov. 29.

But was it true that Israel owed its very existence to the U.N., as it became popularly perceived years later? According to a legal study commissioned in the late 1970s by the U.N. Secretariat’s Special Unit on Palestinian Rights, Resolution 181 was the “juridicial basis” of the State of Israel according to international law. This same line of argument was repeated just this week by an Israeli analyst in the opinion section of the New York Times, who wrote that the vote on Nov. 29 was the “legal basis for the establishment of the State of Israel.”

Leading international legal scholars have vociferously rejected this claim. The noted Australian legal scholar Professor Julius Stone wrote in 1980 that Israel “does not derive its legal existence from the Partition Plan.”

Even Cambridge University’s Professor James Crawford, who advised the PLO at The Hague on the issue of Israel’s Security Fence, concluded in his monumental book on the creation of states in international law that Israel was not created on the basis of Resolution 181. States come into existence when their leaders issue a declaration of independence and subsequently receive recognition by other states. But the U.N. itself does not create states.

Saying that Resolution 181 is the legal basis of the State of Israel raises a more fundamental problem, for it suggests that General Assembly resolutions may have the force of law. This idea represents a complete reinterpretation of the U.N. Charter. Except for resolutions on the U.N. budget or the admission of new members, the resolutions of the U.N. General Assembly are supposed to be only non-binding recommendations. If this idea became accepted it would give the General Assembly many of the powers of the Security Council, and strengthen the ability of Israel’s adversaries to use the U.N. against it.

If Resolution 181 is more than a recommendation and has legal standing, then what about the map that it proposed, including the international regime under U.N. control that it envisioned for Jerusalem, called a “Corpus Separatum?” The Israeli view was clear. After the U.N. failed to defend Jerusalem from invading Arab armies during Israel’s War of Independence, Prime Minister David Ben-Gurion declared in the Knesset at the end of 1949 that the clauses in Resolution 181 dealing with the future of the city were now “null and void.” Indeed, the boundaries envisioned in Resolution 181 were essentially superseded by those that appeared in 1949 armistice agreements.

Yet every few years there is an effort to resurrect the borders of the Resolution 181 as though they have some legal status. Surprisingly in 1999, when Germany held the rotating presidency of the European Union, its ambassador to Israel sent a letter to the Foreign Ministry which argued that: “We reaffirm our stated position regarding the specific status of Jerusalem as a Corpus Separatum. He added: “this position is in accordance with international law.” What was he talking about? Resolution 181 was not a legally binding document.

This year Mahmoud Abbas decided to seek an upgrade of the Palestinian observer mission at the U.N. on Nov. 29, using the symbolism of Resolution 181. The resolution he advanced called for acknowledging that the Palestinians acquire the status of a non-member observer state in the U.N. General Assembly. He also sought to use the resolution to define the borders of a future Palestinian state on the basis of the pre-1967 lines, even though this was beyond the legal powers of the General Assembly.

Nevertheless, Abbas is hoping that states will attribute to the new status of the Palestinians at the U.N. far-reaching legal significance. They are likely to turn to the International Criminal Court in The Hague and seek its involvement in the Israeli-Palestinian conflict; the Rome Statute on which the ICC is based, stipulates that only states can request that it exercise its jurisdiction over a certain territory. The previous ICC prosecutor stated earlier this year that the U.N. General Assembly could have a role in determining if the Palestinian Authority is a “state” and hence can involve the ICC in the territory it claims. The Palestinians are fully aware of this ICC position.

But Abbas has not created a state. He has not yet changed the legal status of the West Bank and the Gaza Strip. If he actually declared a state and sought to place the entire West Bank under Palestinian jurisdiction, then Israel would have to respond forcefully and immediately annex vital areas like IDF security zones, settlement blocs, and points of national-religious significance to the Jewish people. For now, Israel will have to take measured steps to deter Abbas from  going further down the path of unilateralism.

This article was originally published by Israel Hayom.

4 Comments

  • Abbas reveres a sociopath named Muhammad who had 900 unarmed Jews decapitated at Quaraza…This is what happens when you revere a sociopath…

  • Paul Kerstein

    The United Nations does not create States?
    Very, very funny!
    How come it >createdcreated itself, through terror that is<
    The rest of the world thinks there should be a Palestine.
    Will USrael always depend on lies and misinformation
    to control the Middle East? I hope not.

  • Yoel Nitzarim

    Can I just add one more historical place to my question? Hebron?

  • Yoel Nitzarim

    Accordingly, if Israel does not annex land that it desires in the short term, can the Palestinians declare de jure such land as the disputed territories in Judea and Samaria and the eastern part of Jerusalem, including the Old City of Jerusalem; the Temple Mount where the Waqf has spiritual authority, the Mount of Olives, and Joseph’s Tomb as part and parcel of a Palestine?

Leave a Reply

Please note: comments may be published in the Algemeiner print edition. Comments written in all caps will be deleted.


Current day month ye@r *

More...

  • Arts and Culture Middle East Larry King Asks Saudi Arabian Fan If Taking Pictures With Jews Is Permitted

    Larry King Asks Saudi Arabian Fan If Taking Pictures With Jews Is Permitted

    Jewish former CNN host Larry King asked a Saudi Arabian fan if taking pictures with Jews is allowed in his country, before agreeing to pose for a photo with the man, The New York Times reported on Wednesday. The world-famous interviewer was leaving the Ritz Carlton hotel in Washington, D.C. with a New York Times reporter when a “dark-skinned man” approached and asked to take a picture with him, according to the publication. Whereupon, King asked the fan where he was from. When the man said Saudi […]

    Read more →
  • Europe Sports Britain’s Lord Sugar Says Synagogues Will Be Empty With Yom Kippur Matchup of Jewish-Supported Soccer Teams

    Britain’s Lord Sugar Says Synagogues Will Be Empty With Yom Kippur Matchup of Jewish-Supported Soccer Teams

    British-Jewish business tycoon Lord Alan Sugar joked on Wednesday that London synagogues will likely be empty during Yom Kippur with congregants fleeing to watch the match-up of two leading English soccer teams known for having hordes of Jewish fans. “Spurs V Arsenal cup game drawn on most important Jewish festival,” Lord Sugar pointed out on Twitter. “Both teams have loads of Jewish fans. Conclusion Synagogues will be empty.” North London rivals Tottenham Hotspur and Arsenal FC will go head-to-head in the Capital One Cup third-round […]

    Read more →
  • Arts and Culture US & Canada Jewish Men Pass Jimmy Kimmel Social Experiment, Rescuing ‘Spongebob’ in Distress (VIDEO)

    Jewish Men Pass Jimmy Kimmel Social Experiment, Rescuing ‘Spongebob’ in Distress (VIDEO)

    Two Jewish men were the only unwitting participants in a social experiment conducted by Jimmy Kimmel, for his popular TV show. As part of a candid-camera-like sketch featured Monday night on Jimmy Kimmel Live, the host devised different street scenes to observe human behavior — in particular, to see how long it would take people walking down California’s bustling Hollywood Boulevard to notice and interact with others in distress. One scene involved a man in a Spongebob Squarepants costume who had “fallen down” on the sidewalk and needed help […]

    Read more →
  • Education US & Canada International Jewish Organization Blasts Israeli-Born Star Natalie Portman for Comments on Holocaust Education

    International Jewish Organization Blasts Israeli-Born Star Natalie Portman for Comments on Holocaust Education

    A major Jewish organization rebuked actress Natalie Portman on Monday for saying in a recent interview that Jews put too much emphasis on teaching about the Holocaust relative to other genocides. The Israeli-born movie star told the U.K.’s Independent that the Jewish community needs to examine how much focus it puts on Holocaust education over other issues. She said she was shocked when she learned that a genocide was taking place in Rwanda while she was in school learning only about the horrors of the […]

    Read more →
  • Arts and Culture Israel Book Draws Parallels Between Holocaust and Palestinian Nakba, Sparks Outrage

    Book Draws Parallels Between Holocaust and Palestinian Nakba, Sparks Outrage

    JNS.org – A new book that draws parallels between the Holocaust and the Palestinian Nakba (the Arabic term for the displacement of Palestinian refugees during Israel’s War of Independence) has sparked outrage ahead of an official book launch, to be hosted by the Van Leer Jerusalem Institute on Sept. 7. The Zionist organization Im Tirtzu wrote a letter to the institute demanding that it cancel an event it planned in honor of the book’s authors, under the title The Holocaust and […]

    Read more →
  • Education US & Canada Natalie Portman Says Holocaust Education Shouldn’t be Used for ‘Fearmongering’

    Natalie Portman Says Holocaust Education Shouldn’t be Used for ‘Fearmongering’

    Famed actress Natalie Portman warned on Friday against the use of Holocaust education to evoke fear and paranoia. In an interview with the U.K. Independent she added that the trauma should make Jews more empathetic to others who have also experienced hatred. “Sometimes it can be subverted to fearmongering and like ‘Another Holocaust is going to happen,’” the Israeli-American star said. “We need to, of course, be aware that hatred exists, antisemitism exists against all sorts of people, not in the same way. I […]

    Read more →
  • Book Reviews Commentary A Righteous Gentile Navigates the Sharkpool of Washington’s Middle East Correspondents (REVIEW)

    A Righteous Gentile Navigates the Sharkpool of Washington’s Middle East Correspondents (REVIEW)

    The Tribalist, by Louis Marano, is ostensibly a work of fiction but at its core a kind of love song by a gentile journalist for the State of Israel, and especially its secular Zionist core. (Because of the relentless attacks by left-wing polemicists on Israel’s allegedly “messianic” fringe, it’s often forgotten that most of Israel’s founders and all its leaders have been secular Zionists.) The author, the product of an Italian-American family in Buffalo, served two tours of duty in […]

    Read more →
  • Food Jewish Identity Rugelach Roundtable: Does Beloved Pastry Need Dairy to Taste Good?

    Rugelach Roundtable: Does Beloved Pastry Need Dairy to Taste Good?

    JNS.org – Rugelach (singular: rugala) are a beloved traditional Jewish pastry, with a quirky history to boot, but they often present a kosher conundrum. Though parve rugelach are often a preferred dessert after a meat meal for those observing kosher laws (which stipulate a waiting period between eating meat and dairy), some of today’s most popular rugelach are known for their dairy fillings. Pastry chef Paula Shoyer—author of the books “The Kosher Baker: Over 160 Dairy-free Recipes from Traditional to Trendy” and […]

    Read more →