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.