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

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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.


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fab says

September 26, 2011

The whole World is with us. And Crawford has always been against us from the get-go.

John Morss says

September 27, 2011

Here's a suggestion: since Israel's May 1948 UDI represented a secession from Palestine, to the extent Israel's statehood was/is legitimate, Palestine thenceforward also immediately existed ie as a suppressed 'Baltic-like' state (otherwise no sense can be made of the statehood of Israel, since the residual parts of the whole territory were clearly not nullius) and since that date it has been occupied by eg Jordan, Egypt, Israel... (this analysis does not resolve the delineation of borders of course..... maybe uti possidetis can help?)

Nauman says

September 28, 2011

Interesting argument that initially Arabs spoke against UNGA Resolution 181 and emphasized the non-binding nature of UNGA resolutions. But we don't see Arab protagonists making this argument now. But UNGA Resolution 181 was passed in 1947 and Uniting for Peace resolution or Acheson Plan was adopted in November 1950. The latter, in my opinion, has changed the non-binding nature of UNGA resolutions.

jpaust says

September 29, 2011

With respect to statehood status, it does not really matter weather a G.A. Res. is "binding," since what matters is whether there is recognition of statehood status by other states. This could certainly be reflected in a G.A. Res., especially when there is a large majority of the international community voting in favor of a resolution that recognizes statehood status, e.g., that X or Y is a state.
Further, whether or not a state can be a member of the U.N. is a different matter -- membership is different than statehood status, so a state might not be a member at a particular period in time.

Mihai Martoiu Ticu says

October 2, 2011

"The vote on Israel’s application for UN membership [30] in 1949 was thirty-seven in favour, twelve against and nine abstentions in the then fifty-eight-member body. The fact that two-thirds of the members “present and voting” were in favour of admission was sufficient to enable Israel to join the UN, though in total just under this figure - 64% - had positively recognised Israel during the vote. In the context of the current composition of the general assembly, recognition by 64% of the 192 members would equal 123 votes. Accordingly, the PLO/PA needs only an increase of nine votes to its current number of 114 to achieve the same number of recognitions that Israel acquired in 1949."

Nadia NAM says

December 26, 2011

Israel’s membership in the UN was conditional upon Israel’s acceptance and commitment to the partition resolution. The initial rejection of GA resolution is not important as Palestine's exsitence or memebership to the UN does not depend on that. Infact, Palestine never ceased to exist.

William Worster says

January 1, 2012

...(How could you vote for admission without implying recognition?)...

I think very easily. Those voting in favor would argue that they were voting in favor of a certain entity gaining membership. One of the requirements of that membership is that the entity be a "state" for purposes of the constitutive instrument of the organization. That does not necessarily mean "state" for any or all purposes, such as generally under international law.

Practice within the UN has shown a number of instances where the "state" criteria was applied more liberally than might otherwise be done for more general purposes (e.g. according diplomatic immunity).

We can compare this situation to membership criteria at, e.g. the WTO merely requiring a separate customs territory, where the existing members will exercise their discretion to assess whether the candidate is a separate customs territory for purposes of the WTO - not for any other purposes.

We can also compare it to cases where domestic courts have assessed de facto governments for purposes of personality or immunity. There was no implication that the court was definitively determining the foreign policy posture of the state as per the questionable entity. It was only doing so for the purposes of its more limited, and necessarily functional, analysis.

For that matter the entire question sounds not unlike normal lawyering where we find the same words in different documents defined differently.

The member voting in favor of membership but maintaining that the entity is not a state would argue that, in its discretion, it considered the candidate as fulfilling the statehood requirement as defined in the membership criteria, but not otherwise in international law.

A "no" vote is even easier to distinguish. It is not necessarily a denial of statehood, but an exclusion from membership. A possible argument here might also focus on the discretion to assess whether the candidate is "peace loving" etc.

Politically, the state voting in favor but denying statehood would probably explain it to its public as simultaneously denying definitive statehood while working towards "constructive engagement" or something like that.

Stefan says

July 12, 2012

Nadia NAM writes "Palestine never ceased to exist".

This discussion is about the recognition of states. When has there ever been a State of Palestine?