Would the creation of a Palestinian state by vote of the United Nations General Assembly, expected in September, be illegal?
Yes, according to a recent letter to UN Secretary General Ban Ki-Moon. Signed by an array of lawyers, law professors and international law experts, it asks him to block the forthcoming resolution, promoted by the Palestinian Authority, for recognition of a Palestinian state within the 1949 Armistice lines.
The letter was drafted by lawyers affiliated with the Legal Forum for the Land of Israel, a non-profit organization founded in 2004 to find “fair and equitable solutions” for Israelis then about to be evacuated from Gaza.
Among its distinguished signers were Alan Baker, former legal adviser for the Israeli Foreign Ministry and ambassador to Canada, and Meir Rosenne, another former legal adviser for the Foreign Ministry and ambassador to the United States. They claim that UN recognition would be “contrary to international law, UN resolutions and existing agreements.”
Their letter, in effect a legal brief, argues that such a resolution would contravene UN Security Council Resolutions adopted after the Six-Day and Yom Kippur wars. It would be “in stark violation” of existing agreements between Israel and the Palestinians.
Indeed, “the legal basis for the establishment of the State of Israel,” they indicate, goes back to 1922 when the League of Nations affirmed “the establishment of a national home for the Jewish People in the historical area of the Land of Israel.”
Empowered to enact international law for the new postwar world order, the League conferred on Great Britain a Mandate for Palestine. “Palestine” was defined as the land east and west of the Jordan River, now comprising Jordan, the West Bank and Israel.
But in what became the first partition of Palestine, now long forgotten or ignored (even by Israeli government officials), the British government lopped off all the land east of the Jordan River, three-quarters of the designated Mandatory territory, and bestowed it upon Abdullah, son of the Sharif of Mecca, for his own kingdom of Trans-Jordan.
The entire remainder, west of the Jordan to the Mediterranean, was redefined as “Palestine” and designated for the “Jewish National Home,” a phrase borrowed from Lord Balfour’s famous letter of November 2, 1917. But the League went beyond that vague and indeterminate assurance. Article 6 of the Palestine Mandate explicitly protected “close settlement by Jews” in the shrunken land to be called Palestine.
That guarantee remains the international legal foundation for Jewish settlements built ever since the Six-Day War returned Israel to its ancient Jewish homeland. It has never been rescinded.
As signers of the Legal Forum letter indicate, any General Assembly attempt to create a Palestinian state in that territory would violate an array of international guarantees. Among them, most crucially, is Article 80 of the UN Charter. It explicitly protected the rights of “any peoples or the terms of existing international instruments to which members of the United Nations may respectively be parties.”
Drafted by Jewish representatives (including Prime Minister Netanyahu’s father), Article 80 became known as “the Palestine clause.” It preserved, under international law, the rights of the Jewish people to “close settlement” in all the land west of the Jordan River, even after the British Mandate had expired and the League of Nations had ceased to exist.
Those rights were flagrantly violated when Jordan invaded the fledgling Jewish state and claimed sovereignty over the West Bank in 1949. But the Jordanian claim had no standing in international law and was never recognized.
After the Six-Day War, Security Council Resolution 242 permitted Israel to administer the West Bank until “a just and lasting peace in the Middle East” was achieved. That, of course, has not yet happened.
