The Birth of Israel and Palestine – The Ifs of History, Then and Now

Given the promised September UN move by the Palestinian Authority it is of interest to recall some of the circumstances surrounding the birth of Israel. There are some interesting historical parallels and some differences. In public opinion and Hollywood movies, Israel was born with a UN midwife: UNGA Resolution 181, the famous Partition Resolution of 29 November 1947

The Resolution called for, inter alia, the creation of two states, the internationalization of Jerusalem and … wait for it … an economic Union within the whole territory! ‘De Facto Solidarity’ was not, apparently, invented with the Schuman Declaration.

Arab states spoke forcefully against the Resolution and, obviously, voted against it en bloc.  Not only did they not recognize Israel in the sense of declining diplomatic relations – they argued the very illegitimacy of Israel as a state. In furtherance of this position, in the lawfare (only the term is new, not the praxis) that immediately erupted, Arab scholars spent much ink on dismissing any legal significance to that Resolution – essentially arguing the general non-binding nature of General Assembly resolutions. (You don’t see that argument about UNGA Resolution 181 being made too often today by the Arab protagonists in the ongoing lawfare.)

Many Israeli scholars readily conceded the point. Indeed, they argued, it was not within the power of the General Assembly as such legally to sanction the creation of a new state, though, of course, the Resolution was politically very important. Israelcame into being, it was argued, when it declared independence on 15 May 1948 upon termination of the British Mandate over Palestine. The birth of the new state under international law was the result, it was claimed, of the widespread and representative recognition of it by the states of the world community. On this reading, Israel came into being not on the morrow of the November 1947 Partition Resolution, but in May 1948. Politically, the timing of the declaration of independence was not without internal Israeli controversy, with some noted intellectuals, a minority (among them Martin Buber) seeking some kind of settlement talks with the Arabs before taking that decisive step. Equally interesting was the content of the Declaration. It embraced, inter alia, the UN Partition Plan: 

THE STATE OF ISRAEL is prepared to cooperate with the agencies and representatives of the United Nations in the implementation of the Resolution of the General Assembly of November 29, 1947, and will take steps to bring about the economic union over the whole of Eretz-Israel. (see here)

 The Arab invasion of Israel on the morrow of the Declaration put an end to all of that. There is much historical controversy regarding that period and like most literature about the Conflict you can guess the conclusion simply by looking at the name. Many scholars are, demoralizingly, both partisan and entrenched in their views.  But legally speaking, I have no doubt in my mind that had the nascent Palestine declared its independence at the same time as Israel did, it would have been recognized by an even greater number of world states, and Palestine would have been born then and there in the now defunct Partition boundaries. Even if this would not have prevented the war of the Arab states against Israel, the outcome of that war would not have been an Armistice Agreement with Jordan but with Palestine. Why did this not happen? I leave that to the historians to duke out. Still, one cannot but express some sadness given the last 60 years and more of bloodshed.

 Israel’s first bid to become a Member of the UN in the Autumn of 1948 failed in the Security Council. It was only a year after its establishment, in May 1949, that Israelwas admitted to the UN (UNGA Resolution 273 of 11 May 1949).

It is clear, thus, that one should not conflate admission to the UN with the birth of a new state. Admission to the UN is, of course, the most emphatic proof of statehood (though the Taiwan mess is a reminder that even the most perspicacious propositions can have some cloudiness), but it is not necessary. Statehood without membership has not been all that uncommon in the history of the Organization. Israel was a state before it was admitted to the UN.

It is also curious to see that the debate between the declaratory and constitutive schools of recognition still rages both in the literature and in the practice and statements of states. (I find the Lauterpacht solution as unconvincing today as it was when he articulated it, though it too, strangely, has not yet been fully interred.)  If one is to take an empirical and legal realist approach, it would seem that the birth of states is not all of the same cloth. In some situations, such as decolonization, recognition is, indeed, declaratory. But in more controversial situations, want it or not, recognition, widespread and representative, if not ontologically constitutive, is legally a necessary condition. It is really hard to explain the different paths of, say, Bangladesh and the Turkish Republic of Northern Cyprus with any other hypothesis. Does anyone doubt that if the TRNC had received widespread recognition it would have been a member of the club?

And so it was with Israel, and so it is and will be with Palestine. I refer you to the exchange in EJIL in 1990 between Francis Boyle (see here) and James Crawford (see here) following the 1988 Palestinian declaration of independence. In determining the subsequent legal status of ‘Palestine’, from a legal realist perspective, all legal arguments become secondary in the face of the practice of recognition/non-recognition. Had there been widespread and representative recognition at that time, it would have been Palestine, not ‘Palestine’. Justly or unjustly, that recognition was not forthcoming, and a birth turned into a miscarriage.

 To judge from press reports the Palestinian Authority is planning a different approach to that of Israel. It appears that they plan to collapse the process into one step – seeking admission to the UN and folding recognition into that vote. It is a somewhat risky policy. If successful and Palestineis admitted, its statehood would be confirmed ipso facto and ipso jure. Likewise, even if unsuccessful, one should, legally, be able to count all favourable votes on admission, as a priori recognition. (How could you vote for admission without implying recognition?) However, how would one assess the no votes – against recognition? Against membership? And would not failure to be admitted be interpreted as failure to achieve statehood? Never a dull moment in the Middle East.