There is a widely accepted belief that United Nations General Assembly Resolution 181 “created” Israel, based upon an understanding that this resolution partitioned Palestine or otherwise conferred legal authority or legitimacy to the declaration of the existence of the state of Israel. However, despite its popularity, this belief has no basis in fact, as a review of the resolution’s history and examination of legal principles demonstrates incontrovertibly.
Great Britain had occupied Palestine during the First World War, and in July 1922, the League of Nations issued its mandate for Palestine, which recognized the British government as the occupying power and effectively conferred to it the color of legal authority to temporarily administrate the territory. On April 2, 1947, seeking to extract itself from the conflict that had arisen in Palestine between Jews and Arabs as a result of the Zionist movement to establish in Palestine a “national home for the Jewish people”, the United Kingdom submitted a letter to the U.N. requesting the Secretary General “to place the question of Palestine on the Agenda of the General Assembly at its next regular Annual Session”, and requesting the Assembly “to make recommendations, under Article 10 of the Charter, concerning the future government of Palestine.” To that end, on May 15, the General Assembly adopted Resolution 106, which established the U.N. Special Committee on Palestine (UNSCOP) to investigate “the question of Palestine”, to “prepare a report to the General Assembly” based upon its findings, and to “submit such proposals as it may consider appropriate for the solution of the problem of Palestine”.
On September 3, UNSCOP issued its report to the General Assembly declaring its majority recommendation that Palestine be partitioned into separate Jewish and Arab states. It noted that the population of Palestine at the end of 1946 was estimated to be almost 1,846,000, with 1,203,000 Arabs (65 percent) and 608,000 Jews (33 percent). Growth of the Jewish population had been mainly the result of immigration, while growth of the Arab population had been “almost entirely” due to natural increase. It observed that there was “no clear territorial separation of Jews and Arabs by large contiguous areas”, and even in the Jaffa district, which included Tel Aviv, Arabs constituted a majority. Land ownership statistics from 1945 showed that Arabs owned more land than Jews in every single district in Palestine. The district with the highest percentage of Jewish ownership was Jaffa, where 39 percent of the land was owned by Jews, compared to 47 percent owned by Arabs. In the whole of Palestine at the time UNSCOP issued its report, Arabs owned 85 percent of the land, while Jews owned less than 7 percent.
Despite these facts, the UNSCOP proposal was that the Arab state be constituted from only 45.5 percent of the whole of Palestine, while the Jews would be awarded 55.5 percent of the total area for their state. The UNSCOP report acknowledged that
With regard to the principle of self-determination, although international recognition was extended to this principle at the end of the First World War and it was adhered to with regard to the other Arab territories, at the time of the creation of the ‘A’ Mandates, it was not applied to Palestine, obviously because of the intention to make possible the creation of the Jewish National Home there. Actually, it may well be said that the Jewish National Home and the sui generis Mandate for Palestine run counter to that principle.
In other words, the report explicitly recognized that the denial of Palestinian independence in order to pursue the goal of establishing a Jewish state constituted a rejection of the right of the Arab majority to self-determination. And yet, despite this recognition, UNSCOP had accepted this rejection of Arab rights as being within the bounds of a legitimate and reasonable framework for a solution.
Following the issuance of the UNSCOP report, the U.K. issued a statement declaring its agreement with the report’s recommendations, but adding that “if the Assembly should recommend a policy which is not acceptable to both Jews and Arabs, the United Kingdom Government would not feel able to implement it.” The position of the Arabs had been clear from the beginning, but the Arab Higher Committee issued a statement on September 29 reiterating that “the Arabs of Palestine were determined to oppose with all the means at their disposal, any scheme that provided for segregation or partition, or that would give to a minority special and preferential status”. It instead
advocated freedom and independence for an Arab State in the whole of Palestine which would respect human rights, fundamental freedoms and equality of all persons before the law, and would protect the legitimate rights and interests of all minorities whilst guaranteeing freedom of worship and access to the Holy Places.
The U.K. followed with a statement reiterating “that His Majesty’s Government could not play a major part in the implementation of a scheme that was not acceptable to both Arabs and Jews”, but adding “that they would, however, not wish to impede the implementation of a recommendation approved by the General Assembly.”
The Ad Hoc Committee on the Palestinian Question was established by the General Assembly shortly after the issuance of the UNSCOP report in order to continue to study the problem and make recommendations. A sub-committee was established in turn that was tasked with examining the legal issues pertaining to the situation in Palestine, and it released the report of its findings on November 11. It observed that the UNSCOP report had accepted a basic premise “that the claims to Palestine of the Arabs and Jews both possess validity”, which was “not supported by any cogent reasons and is demonstrably against the weight of all available evidence.” With an end to the Mandate and with British withdrawal, “there is no further obstacle to the conversion of Palestine into an independent state”, which “would be the logical culmination of the objectives of the Mandate” and the Covenant of the League of Nations. It found that “the General Assembly is not competent to recommend, still less to enforce, any solution other than the recognition of the independence of Palestine, and that the settlement of the future government of Palestine is a matter solely for the people of Palestine.” It concluded that “no further discussion of the Palestine problem seems to be necessary or appropriate, and this item should be struck off the agenda of the General Assembly”, but that if there was a dispute on that point, “it would be essential to obtain the advisory opinion of the International Court of Justice on this issue”, as had already been requested by several of the Arab states. It concluded further that the partition plan was “contrary to the principles of the Charter, and the United Nations have no power to give effect to it.” The U.N. could not
deprive the majority of the people of Palestine of their territory and transfer it to the exclusive use of a minority in the country…. The United Nations Organization has no power to create a new State. Such a decision can only be taken by the free will of the people of the territories in question. That condition is not fulfilled in the case of the majority proposal, as it involves the establishment of a Jewish State in complete disregard of the wishes and interests of the Arabs of Palestine.
Nevertheless, the General Assembly passed Resolution 181 on November 29, with 33 votes in favor to 13 votes against, and 10 abstentions. The relevant text of the resolution stated:
The General Assembly….
Recommends to the United Kingdom, as the mandatory Power for Palestine, and to all other Members of the United Nations the adoption and implementation, with regard to the future government of Palestine, of the Plan of Partition with Economic Union set out below;
(a) The Security Council take the necessary measure as provided for in the plan for its implementation;
(b) The Security Council consider, if circumstances during the transitional period require such consideration, whether the situation in Palestine constitutes a threat to the peace. If it decides that such a threat exists, and in order to maintain international peace and security, the Security Council should supplement the authorization of the General Assembly by taking measure, under Articles 39 and 41 of the Charter, to empower the United Nations Commission, as provided in this resolution, to exercise in Palestine the functions which are assigned to it by this resolution;
(c) The Security Council determine as a threat to the peace, breach of the peace or act of aggression, in accordance with Article 39 of the Charter, any attempt to alter by force the settlement envisaged by this resolution;
(d) The Trusteeship Council be informed of the responsibilities envisaged for it in this plan;
Calls upon the inhabitants of Palestine to take such steps as may be necessary on their part to put this plan into effect;
Appeals to all Governments and all peoples to refrain from taking action which might hamper or delay the carrying out of these recommendations….
A simple reading of the text is enough to show that the resolution did not partition Palestine or offer any legal basis for doing so. It merely recommended that the partition plan be implemented and requested the Security Council to take up the matter from there. It called upon the inhabitants of Palestine to accept the plan, but they were certainly under no obligation to do so.
A Plan Never Implemented
The matter was thus taken up by the Security Council, where, on December 9, the Syrian representative to the U.N., Faris El-Khouri, observed that “the General Assembly is not a world government which can dictate orders, partition countries or impose constitutions, rules, regulations and treaties on people without their consent.” When the Soviet representative Andrei Gromyko stated his government’s opposing view that “The resolution of the General Assembly should be implemented” by the Security Council, El-Khouri replied by noting further that
Certain paragraphs of the resolution of the General Assembly which concern the Security Council are referred to the Council, namely, paragraphs (a), (b) and (c), outlining the functions of the Security Council in respect of the Palestinian question. All of the members of the Security Council are familiar with the Council’s functions, which are well defined and clearly stated in the Charter of the United Nations. I do not believe that the resolution of the General Assembly can add to or delete from these functions. The recommendations of the General Assembly are well known to be recommendations, and Member States are not required by force to accept them. Member States may or may not accept them, and the same applies to the Security Council. 
On February 6, 1948, the Arab Higher Committee again communicated to the U.N. Secretary General its position that the partition plan was “contrary to the letter and spirit of the United Nations Charter”. The U.N. “has no jurisdiction to order or recommend the partition of Palestine. There is nothing in the Charter to warrant such authority, consequently the recommendation of partition is ultra vires and therefore null and void.” Additionally, the Arab Higher Committee noted that
The Arab Delegations submitted proposals in the Ad Hoc Committee in order to refer the whole legal issue raised for a ruling by the International Court of Justice. The said proposals were never put to vote by the president in the Assembly. The United Nations is an International body entrusted with the task of enforcing peace and justice in international affairs. How would there be any confidence in such a body if it bluntly and unreasonably refuses to refer such a dispute to the International Court of Justice?
“The Arabs of Palestine will never recognize the validity of the extorted partition recommendations or the authority of the United Nations to make them”, the Arab Higher Committee declared, and they would “consider that any attempt by the Jews or any power or group of powers to establish a Jewish State in Arab territory is an act of aggression which will be resisted in self-defense by force.”
On February 16, the U.N. Palestine Commission, tasked by the General Assembly to prepare for the transfer of authority from the Mandatory Power to the successor governments under the partition plan, issued its first report to the Security Council. It concluded on the basis of the Arab rejection that it “finds itself confronted with an attempt to defect its purposes, and to nullify the resolution of the General Assembly”, and calling upon the Security Council to provide an armed force “which alone would enable the Commission to discharge its responsibilities on the termination of the Mandate”. In effect, the Palestine Commission had determined that the partition plan should be implemented against the will of the majority population of Palestine by force.
In response to that suggestion, Colombia submitted a draft Security Council resolution noting that the U.N. Charter did “not authorize the Security Council to create special forces for the purposes indicated by the United Nations Palestine Commission”. The U.S. delegate, Warren Austin, similarly stated at the 253rd meeting of the Security Council on February 24 that
The Security Council is authorized to take forceful measures with respect to Palestine to remove a threat to international peace. The Charter of the United Nations does not empower the Security Council to enforce a political settlement whether it is pursuant to a recommendation of the General Assembly or of the Security Council itself. What this means is this: The Security Council, under the Charter, can take action to prevent aggression against Palestine from outside. The Security Council, by these same powers, can take action to prevent a threat to international peace and security from inside Palestine. But this action must be directed solely to the maintenance of international peace. The Security Council’s action, in other words, is directed to keeping the peace and not to enforcing partition.
The United States nevertheless submitted its own draft text more ambiguously accepting the requests of the Palestine Commission “subject to the authority of the Security Council under the Charter”. Faris El-Khouri objected to the U.S. draft on the grounds that “before accepting these three requests, it is our duty to ascertain whether they are or are not within the framework of the Security Council as limited by the Charter. If it is found that they are not, we should decline to accept them.” He recalled Austin’s own statement on the lack of authority of the Security Council, saying, “It would follow from this undeniable fact that any recommendation on a political settlement can be implemented only if the parties concerned willingly accept and complement it.” Furthermore, “the partition plan itself constitutes a threat to the peace, being openly rejected by all those at whose expense it was to be executed.” Austin in turn explained the intent of the U.S. draft that its acceptance of Resolution 181 is
subject to the limitation that armed force cannot be used for implementation of the plan, because the Charter limits the use of United Nations force expressly to threats to and breaches of the peace and aggression affecting international peace. Therefore, we must interpret the General Assembly resolution as meaning that the United Nations measures to implement this resolution are peaceful measures.
Moreover, explained Austin, the U.S. draft
does not authorize use of enforcement under Articles 39 and 41 of the Charter to empower the United Nations Commission to exercise in Palestine the functions which are assigned to it by the resolution, because the Charter does not authorize either the General Assembly or the Security Council to do any such thing.
When the Security Council did finally adopt a resolution on March 5, it merely made a note of “Having received General Assembly resolution 181″ and the first monthly Palestine Commission report, and resolved
to call on the permanent members of the Council to consult and to inform the Security Council regarding the situation with respect to Palestine and to make, as the result of such consultations, recommendations to it regarding the guidance and instructions which the Council might usefully give to the Palestine Commission with a view to implementing the resolution of the General Assembly.
During further debates at the Security Council over how to proceed, Austin observed that it had become “clear that the Security Council is not prepared to go ahead with efforts to implement this plan in the existing situation.” At the same time, it was clear that the U.K.’s announced termination of the Mandate on May 15 “would result, in the light of information now available, in chaos, heavy fighting and much loss of life in Palestine.” The U.N. could not permit this, he said, and the Security Council had the responsibility and authority under the Charter to act to prevent such a threat to the peace. The U.S. also proposed establishing a Trusteeship over Palestine to give further opportunity to the Jews and Arabs to reach a mutual agreement. Pending the convening of a special session of the General Assembly to that end, “we believe that the Security Council should instruct the Palestine Commission to suspend its efforts to implement the proposed partition plan.”
The Security Council President, speaking as the representative from China, responded: “The United Nations was created mainly for the maintenance of international peace. It would be tragic indeed if the United Nations, by attempting a political settlement, should be the cause of war. For these reasons, my delegation supports the general principles of the proposal of the United States delegation.” At a further meeting of the Security Council, the Canadian delegate stated that the partition plan “is based on a number of important assumptions”, the first of which was that “it was assumed that the two communities in Palestine would co-operate in putting into effect the solution to the Palestine problem which was recommended by the General Assembly.” The French delegate, while declining to extend either approval for or disapproval of the U.S. proposal, observed that it would allow for any number of alternative solutions from the partition plan, including “a single State with sufficient guarantees for minorities”. The representative from the Jewish Agency for Palestine read a statement categorically rejecting “any plan to set up a trusteeship regime for Palestine”, which “would necessarily entail a denial of the Jewish right to national independence.”
Mindful of the worsening situation in Palestine, and wishing to avoid further debate, the U.S. proposed another draft resolution calling for a truce between Jewish and Arab armed groups that Austin noted “would not prejudice the claims of either group” and which “does not mention trusteeship.” It was adopted as Resolution 43 on April 1. Resolution 44 was also passed the same day requesting “the Secretary-General, in accordance with Article 20 of the United Nations Charter, to convoke a special session of the General Assembly to consider further the question of the future government of Palestine.” Resolution 46 reiterated the Security Council’s call for the cessation of hostilities in Palestine, and Resolution 48 established a “Truce Commission” to further the goal of implementing its resolutions calling for an end to the violence.
On May 14, the Zionist leadership unilaterally declared the existence of the State of Israel, citing Resolution 181 as constituting “recognition by the United Nations of the right of the Jewish people to establish their State”. As anticipated, war ensued.
The Authority of the U.N. with Regard to Partition
Chapter 1, Article 1 of the U.N. Charter defines its purposes and principles, which are to “maintain international peace and security”, to “develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples”, and to “achieve international co-operation” on various issues and “promoting and encouraging respect for human rights and for fundamental freedoms for all”.
The functions and powers of the General Assembly are listed under Chapter IV, Articles 10 through 17. It is tasked to initiate studies and make recommendations to promote international cooperation and the development of international law, to receive reports from the Security Council and other organs of the U.N., and to consider and approve the organization’s budget. It is also tasked with performing functions under the international trusteeship system. Its authority is otherwise limited to considering and discussing matters within the scope of the Charter, making recommendations to Member States or the Security Council, or calling attention of matters to the Security Council.
Chapter V, Articles 24 through 26, states the functions and powers of the Security Council. It is tasked with maintaining peace and security in accordance with the purposes and principles of the U.N. The specific powers granted to the Security Council are stated in Chapters VI, VII, VIII, and XII. Under Chapter VI, the Security Council may call upon parties to settle disputes by peaceful means, investigate, and make a determination as to whether a dispute or situation constitutes a threat to peace and security. It may recommend appropriate procedures to resolve disputes, taking into consideration that “legal disputes should as a general rule be referred by the parties to the International Court of Justice”. Under Chapter VII, the Security Council may determine the existence of a threat to peace and make recommendations or decide what measures are to be taken to maintain or restore peace and security. It may call upon concerned parties to take provisional measures “without prejudice to the rights, claims, or position of the parties concerned.” It may call upon member states to employ “measures not involving the use of armed force” to apply such measures. Should such measures be inadequate, it may authorize the use of armed forces “to maintain or restore international peace and security”. Chapter VIII states that the Security Council “shall encourage the development of pacific settlements of local disputes” through regional arrangements or agencies, and utilize such to enforce actions under its authority.
The functions and powers of the International Trusteeship System are listed under Chapter XII, Articles 75 through 85. The purpose of the system is to administer and supervise territories placed therein by agreement with the goal of “development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned”. The system is to operate in accordance with the purposes of the U.N. stated in Article 1, including respect for the right of self-determination. The General Assembly is tasked with all functions “not designated as strategic”, which are designated to the Security Council. A Trusteeship Council is established to assist the General Assembly and the Security Council to perform their functions under the system.
Chapter XIII, Article 87 states the functions and powers of the Trusteeship Council, which are shared by the General Assembly. Authority is granted to consider reports, accept and examine petitions, provide for visits to trust territories, and “take these and other actions in conformity with the terms of the trusteeship agreements.”
Another relevant section is Chapter XI, entitled the “Declaration Regarding Non-Self-Governing Territories”, which states that
Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories…
To that end, Member states are “to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions”.
The partition plan put forth by UNSCOP sought to create within Palestine a Jewish state contrary to the express will of the majority of its inhabitants. Despite constituting only a third of the population and owning less than 7 percent of the land, it sought to grant to the Jews more than half of Palestine for purpose of creating that Jewish state. It would, in other words, take land from the Arabs and give it to the Jews. The inherent injustice of the partition plan stands in stark contrast to alternative plan proposed by the Arabs, of an independent state of Palestine in which the rights of the Jewish minority would be recognized and respected, and which would afford the Jewish population representation in a democratic government. The partition plan was blatantly prejudicial to the rights of the majority Arab population, and was premised on the rejection of their right to self-determination. This is all the more uncontroversial inasmuch as the UNSCOP report itself explicitly acknowledged that the proposal to create a Jewish state in Palestine was contrary to the principle of self-determination. The plan was also premised upon the erroneous assumption that the Arabs would simply acquiesce to having their land taken from them and voluntarily surrender their majority rights, including their right to self-determination.
U.N. General Assembly Resolution 181 neither legally partitioned Palestine nor conferred upon the Zionist leadership any legal authority to unilaterally declare the existence of the Jewish state of Israel. It merely recommended that the UNSCOP partition plan be accepted and implemented by the concerned parties. Naturally, to have any weight of law, the plan, like any contract, would have to have been formally agreed upon by both parties, which it was not. Nor could the General Assembly have legally partitioned Palestine or otherwise conferred legal authority for the creation of Israel to the Zionist leadership, as it simply had no such authority to confer. When the Security Council took up the matter referred to it by the General Assembly, it could come to no consensus on how to proceed with implementing the partition plan. It being apparent that the plan could not be implemented by peaceful means, the suggestion that it be implemented by force was rejected by members of the Security Council. The simple fact of the matter is that the plan was never implemented. Numerous delegates from member states, including the U.S., arrived at the conclusion that the plan was impracticable, and, furthermore, that the Security Council had no authority to implement such a plan except by mutual consent by concerned parties, which was absent in this case.
The U.S., Syria, and other member nations were correct in their observations that, while the Security Council did have authority to declare a threat to the peace and authorize the use of force to deal with that and maintain or restore peace and security, it did not have any authority to implement by force a plan to partition Palestine contrary to the will of most of its inhabitants. Any attempt to usurp such authority by either the General Assembly or the Security Council would have been a prima facie violation of the Charter’s founding principle of respect for the right to self-determination of all peoples, and thus null and void under international law.
In sum, the popular claim that the U.N. “created” Israel is a myth, and Israel’s own claim in its founding document that U.N. Resolution 181 constituted legal authority for Israel’s creation, or otherwise constituted “recognition” by the U.N. of the “right” of the Zionist Jews to expropriate for themselves Arab land and deny to the majority Arab population of that land their own right to self-determination, is a patent fraud.
Further corollaries may be drawn. The disaster inflicted upon Palestine was not inevitable. The U.N. was created for the purpose of preventing such catastrophes. Yet it failed miserably to do so, on numerous counts. It failed in its duty to refer the legal questions of the claims to Palestine to the International Court of Justice, despite requests from member states to do so. It failed to use all means within its authority, including the use of armed forces, to maintain peace and prevent the war that was predicted would occur upon the termination of the Mandate. And most importantly, far from upholding its founding principles, the U.N. effectively acted to preventthe establishment of an independent and democratic state of Palestine, in direct violation of the principles of its own Charter. The consequences of these and other failures are still witnessed by the world today on a daily basis. Recognition of the grave injustice perpetrated against the Palestinian people in this regard and dispelling such historical myths is essential if a way forward towards peace and reconciliation is to be found.
 Great Britain had contributed to the conflict by making contradictory promises to both Jews and Arabs, including a declaration approved by the British Cabinet that read, “His Majesty’s Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.” This declaration was delivered by Foreign Secretary Arthur James Balfour to representative of the Zionist movement Lord Lionel Walter Rothschild in a letter on November 2, 1917, and thus came to be known as “The Balfour Declaration”,http://avalon.law.yale.edu/20th_century/balfour.asp.
 “Palestine Land Ownership by Sub-Districts (1945)”, United Nations, August 1950,http://domino.un.org/maps/m0094.jpg. The map was prepared on the instructions of Sub-Committee 2 of the Ad Hoc Committee on the Palestinian question and presented as Map No. 94(b). Statistics were as follows (Arab/Jewish land ownership in percentages): Safad: 68/18; Acre: 87/3; Tiberias: 51/38; Haifa: 42/35; Nazareth: 52/28; Beisan: 44/34; Jenin: 84/1, Tulkarm: 78/17; Nablus: 87/1; Jaffa: 47/39; Ramle: 77/14; Ramallah: 99/less than 1; Jerusalem: 84/2; Gaza: 75/4; Hebron: 96/less than 1; Beersheeba: 15/less than 1.
 Draft Resolution on the Palestinian Question Submitted by the Representative of the United States at the Two Hundred and Fifty Fifth Meeting of the Security Council, February 25, 1948,http://unispal.un.org/pdfs/S685.pdf.
U.N. Membership Would Unshackle Israel and Palestine
If the United States were to change course to support Palestine’s membership in the United Nations, Israel and Palestine would have access to the institutions of international law which have the capacity to move both states toward real peace, justice, and security for which both plead—and which is not only possible but inevitable. The status quo is crumbling before our eyes: the global Boycott, Divestment and Sanctions movement against Israel grows daily; Palestine is admitted to more and more international bodies open only to states; over two-thirds of the world’s countries have recognized Palestine as a state; the power of AIPAC highlights the weakness of Israel; Israeli politicians worry publicly about Israel’s drift toward an apartheid state; and Israel’s own diverse population is increasingly restive. The assertion that Palestine cannot join the UN because it not a state is spurious according to the classic and authoritative principles of the 1933 Montevideo Convention on the Rights and Duties of States. Palestine meets the conditions of the treaty which stipulates that a state must have a permanent population, a defined territory, a government, and the capacity to enter relations with others states.
First, from antiquity, Palestine has had a remarkably permanent population. Even today, Palestinian refugees within Gaza and the West Bank do not compromise Palestine’s citizens; nor do the refugees in neighboring states. The overwhelming majority of refugees will either return to their homes and lands in Israel or be absorbed by their host countries and the international community with citizenship and compensation. Only a relatively small portion of the refugees would move to Palestine, and not in such numbers as to be destabilizing.
Second, Palestine has been a well-defined territory historically, lying in the most western portion of Asia, south of Lebanon, and north-northeast of Sinai. After World War I, the League of Nations confirmed the British Mandate, which defined the exact borders of Palestine. In November 1947, the UN General Assembly again confirmed the boundaries of British Mandated Palestine in Resolution 181, which recommended that “independent Arab and Jewish States . . . shall come into existence in Palestine.” The size and borders of Palestine have changed and are now disputed, but Palestine still exists. Many states have lost land and changed boundaries without loss of statehood. The CIA World Factbook identifies over one hundred ongoing border disputes between sovereign states. Lost land and disputed borders do not negate statehood.
Legal scholar John Quigley documents that since I967, Israel has militarily occupied Palestine’s Gaza Strip and the West Bank against the will of its population in what Israel’s Supreme Court (Tamimi v. Minister of Defense, 1985), the UN Security Council (Res. 1322), the UN General Assembly (Res. 61/184), and the International Court of Justice (2004) have determined is a “belligerent occupation.” The occupation accounts for many limits within Palestine, but it does not vacate Palestine’s statehood. Poland, Czechoslovakia, Lithuania, and other states remained states when they were under belligerent occupation—and so does Palestine.
Third, Palestine has a government, albeit one historically conditioned by the “tutelage” of Britain, the “trusteeship” of Jordan and Egypt, and now the occupation by Israel. Under the British Mandate, the government of Palestine issued passports and extended citizenship to immigrants with the oath, “I swear that I will be faithful and loyal to the Governmentof Palestine.” Today, the government of Palestine elects officials, provides civil services, legislates and enforces laws, adjudicates civil and criminal cases in courts of law, and continues to issues passports that are accepted around the world, including in the US and Israel.
Even Israeli Prime Minister Benjamin Netanyahu has acknowledged and bitterly complained that the government of Israel has acknowledged that Palestine is a state with a government although notformally recognized. In 1993 one week after Mr. Yitzhak Rabin signed the Oslo Accords, Mr. Netanyahu eviscerated him on the floor of the Knesset: “Despite its denials, this government has accepted the creation of a Palestinian state . . . . Even if the words, ‘Palestinian state’, are not mentioned, you do not need a sign; this is a Palestinian state.” Who would sign the Oslo Accords with the government of the State of Israel if not the government of the State of Palestine?
Divided control of the government between Fatah and Hamas does not negate Palestine’s statehood. Many states have had weak or divided governments, yet remained states. Turkey has suffered half a dozen coups, yet remained a member state of the UN. And the 2011 ‘Arab spring’ states have had divided governments, yet remained members of the UN.
Is Palestine’s government illegitimate because it includes Hamas, which in its Charter opposes the existence of the State of Israel? No, not unless Israel’s government is illegitimate because it includes Likud, which in its Platform “opposes the establishment of an independent Palestinian state.” The US may not approve of the government of Palestine, or the governments of China, Russia, or even Israel, but they are all still states according to the international standards of the Montevideo Convention.
Fourth, the government of Palestine has diplomatic relations with over 130 countries and is a member of almost thirty international organizations limited to states. There is nothing hypothetical or unilateral about Palestine’s statehood or its bid for UN membership.
Nevertheless, Palestine is still widely misreported as a “territory” seeking UN “recognition.” According to its Charter, the UN has no authority to recognize any country, and the Montevideo Convention explicitly affirms that “the political existence of a state is independent of recognition by other states.” Palestine does not need recognition by the US or Israel to become a state; it is already a state. What Palestine needs, however, and what Israel and the entire world need, is Palestine’s admission to the UN as a Member or as a Permanent Observer. Israel and the United States’ formal recognition of the State of Palestine is a domestic political question that Israelis and Americans will resolve in their own time. For UN membership, Article 4 of the UN Charter requires only that an applicant is a state, not diplomatic recognition of that state—and Palestine is a state.
As long as Palestine is excluded from the UN, neither Palestine nor Israel has any option to resolve what they consider the other’s unjustified actions except violent retaliations or interminably fruitless peace negotiations punctuated by horrific wars. As everyone knows who has ever taken high school physics or a history course, the status quo is impossible to maintain; reality is dynamic. If Palestine were admitted to the UN as a Member or Permanent Observer, Israel and Palestine could take each other to the International Court of Justice or the International Criminal Court to resolve disputes in a larger arena that is less influenced by domestic politics. Currently, these courts and the Geneva Conventions cannot be invoked directly; but if Palestine were a Member or Permanent Observer of the UN, both states could access the institutions of international law to resolve conflict without violence.
When Palestine becomes a Member of the UN, Qassam rocket launches and drone missile attacks can be answered with the tools of international law, not retributive violence; home demolitions and land confiscation can be addressed in the international courts not the streets; cross-border kidnappings, shootings, and assassinations can be treated as criminal acts not terrorism or military exercises. And Palestine’s UN membership paves the way for both states to come to terms with the Arab Peace Initiative which promises to integrate Israel into its Arab ‘neighborhood’ which Israel has long described as hostile to its existence. Peace is possible.
Palestine’s membership in the UN does not require it to remain an independent state totally separate from all other states. International law affirms that independent states may freely associate to form a new state or a confederacy of states (UNGA Resolution 2625, 24 October 1970). All kinds of arrangements are possible: an independent state; a merger of Israel and Palestine; a confederated state of Jordan, Israel and Palestine; an economic and cultural union of all the states of the Levant, but separate political structures; and other options as well.
Palestine’s status in the UN is the key to Israel’s security and international support—and to Palestinian freedom, equal rights, and a just resolution of the refugees’ right of return. The UN is the world’s most inclusive institution devoted to peace. It is not perfect, but it is better than unending war. By hindering Palestine’s entrance to the UN, America has left Israelis and Palestinians with the limited options of capitulation to the other’s most recent demands or violence—and neither state is ready to capitulate.
 Norman Bentwich, “Palestine Nationality and the Mandate, Journal of Comparative Legislation and International Law, vol. 21, 230, at 232, 1939.
 Opposition Leader Netanyahu Criticizes Agreement with PLO During Knesset Debate, BBC Summary of World Broadcasts, Sept. 23, 1993, ME/1801/MED, at 6, available at LEXIS, News Library, BBCMIR File.
In recent months, seven South American nations have recognized Palestine “as a free, independent and sovereign state.”
Last week, following similar statements by representatives of Brazil, Argentina, Uruguay, Bolivia, Ecuador, and Chile, the Foreign Ministry of Guyana declared that its decision to recognize Palestine was based on “Guyana’s long-standing and unwavering solidarity with, and commitment to, the just and legitimate aspirations of the people of Palestine for the exercise of their right to self-determination and to achieve a homeland of their own, independent, free, prosperous and at peace.” Paraguay and Peru are expected to recognize a Palestinian state in coming weeks.
During his first official visit to Palestine a few days ago, Russian President Dmitry Medvedev reaffirmed Moscow’s commitment to an independent Palestinian state. “We have supported the establishment of an independent Palestinian state with east Jerusalem as its capital since the last century, and we still support it,” Medvedev said, speaking in the West Bank town of Jericho.
In response to these recent developments, Ha’aretzreports that “a British Foreign Office minister said Thursday that only direct Palestinian-Israeli negotiations can achieve peace, adding that the U.K would not recognize a unilaterally declared Palestinian state.” Parliamentary Under Secretary of State Alistair Burt, while in Jordan today, said that London could not “recognize a state that does not have a capital, and doesn’t have borders.”
The irony here is striking considering Israel has no internationally recognized capital and no internationally recognized borders.
When Israel unilaterally declared independence in mid-1948, a temporary capital was set up in Tel Aviv. The April 3, 1949 armistice agreement signed between Israel and Jordan on established geographical demarcation lines which divided Jerusalem into sectors each under Israel and Jordan control with a no-man’s-land between them. On December 9, 1949, the United Nations General Assembly upheld this demarcation status. Nevertheless, in defiance of the international community, Israel soon announced that Jerusalem was its official capital. Neither the United States nor Britain, along with the majority of the rest of the world, accepted this transfer and, to this day, do not recognize Jerusalem as the capital of Israel.
In 1980, 13 years after Israel claimed to “annex” the whole of occupied Jerusalem into Israeli territory, the Israeli government passed the so-called “Jerusalem Law” which held that “Jerusalem, complete and united, is the capital of Israel” and that “Jerusalem is the seat of the President of the State, the Knesset, the Government and the Supreme Court.”
Following this pronouncement, a number of governments, including France and Germany, issued statements condemning the measure and, in response, the government of the Netherlands moved its Consulate General from Jerusalem to Tel Aviv. The United Nations Security Council adopted a resolution (UNSC Res. 478), for which the U.K. voted in favor, stating that “the enactment of the ‘basic law’ by Israel constitutes a violation of international law.” The resolution (which passed with a 14-0 vote, with the U.S. cowardly abstaining) also denied acceptance of Israel’s decision and called upon all UN member states “hat have established diplomatic missions at Jerusalem to withdraw such mission from the Holy City.”
To this day, the United Kingdom does not recognize Jerusalem as the capital of Israel, maintains that Israel has no sovereignty over Jerusalem, and retains its Embassy in Tel Aviv. In fact, there are currently no international embassies in Jerusalem (though, interestingly, both Bolivia and Paraguay have their embassies in the Jerusalem suburb of Mevasseret Zion).
Furthermore, Israel, in its eternal effort to expand its territory through illegal annexation, colonization, military conquest, and land theft, has no recognizedborders. In 1937, over a decade before becoming Israel’s first Prime Minister, David Ben-Gurion stated that a Jewish state could first be established in part of Palestine in order to set the stage for further expansion. “We shall accept a state in the boundaries fixed today,” he said, “but the boundaries of Zionist aspirations are the concern of the Jewish people and no external factor will be able to limit them.” The next year, he declared, “[I am] satisfied with part of the country, but on the basis of the assumption that after we build up a strong force following the establishment of the state – we will abolish the partition of the country and we will expand to the whole Land of Israel.”
Even now, more than 70 years later, Israel’s current Prime Minister, Benjamin Netanyahu, refuses to talk about establishing internationally recognized borders for the state of Israel.
Similarly, responding to his country’s recent recognition of Palestine, Gabriel Zaliasnik, president of Chile’s Jewish community, claimed he was “satisfied” with the wording of the proclamation because it did not refer to borders. “Israelis and Palestinians will eventually define all the core issues like borders,” he said. “For the Jewish people, Jerusalem and borders of the state of Israel can not be provided to third parties.”
The British government even withheld formal, de jure recognition of the state of Israel for nearly two years after its creation. On April 27, 1950, the Parliamentary Undersecretary of State for Foreign Affairs, Lord William Henderson, legally recognized Israel in spite of the undetermined status of Jerusalem and the temporary nature of Israel’s borders, which are mentioned specifically in the statement of recognition.
Nevertheless, all these years later, despite having neither a capital nor borders, the British government still recognizes Israel as a sovereign, free, and independent state. In a blatant case of double standards, it now refuses to do so with regard to Palestine.
It appears that the shameful and duplicitous legacy of the Balfour Declaration has yet to let go its grip on the British Foreign Office.