Did Resolution 181 create the State of Israel? - opinion

Israel’s true legal foundation can be traced to the Balfour Declaration and the international documents that it was incorporated into and that are still in effect today with respect to the West Bank.

 A PALESTINIAN PROTEST, with the participation of the grand mufti of Jerusalem, outside the British Consulate General in east Jerusalem on November 2, the anniversary of the Balfour Declaration.  (photo credit: JAMAL AWAD/FLASH90)
A PALESTINIAN PROTEST, with the participation of the grand mufti of Jerusalem, outside the British Consulate General in east Jerusalem on November 2, the anniversary of the Balfour Declaration.
(photo credit: JAMAL AWAD/FLASH90)

Last week, 74 years ago, November 29, 1947, the UN General Assembly passed Resolution 181, also known as the Partition Plan.

Many have mistakenly come to assume that the UN created the State of Israel through this resolution. However, Israel’s true legal foundation can be traced to the Balfour Declaration and the international documents that it was incorporated into and that are still in effect today with respect to the West Bank.

The Balfour Declaration was issued by Britain’s foreign secretary Lord Balfour on November 2, 1917. The declaration called for the establishment of a Jewish homeland in the geographical region referred to as Palestine.

At the time the declaration was issued, Britain didn’t occupy what is now Israel, as it was fighting the Ottoman Empire, which controlled the territory. So, Britain did not have title to convey to anyone. This document functioned instead as a policy declaration of the British government. Nevertheless, the declaration would become a binding part of international law through its incorporation into a series of international documents.

First, following the conclusion of World War I, the Paris Peace Conference was convened to determine the terms of post-war peace. At the conference, the principal Allied powers received submissions from the Arab delegation on February 6, 1919 and the Jewish delegation on February 27, 1919 with respect to what they wanted out of the former Ottoman territories.

This Week in History: The UN Partition Plan announced (credit: ARCHIVE)This Week in History: The UN Partition Plan announced (credit: ARCHIVE)

The Jewish delegation requested the recognition of their historical relationship with “Palestine” and for the right to reconstitute what they previously had there. The Jewish delegation also requested the creation of a mandate in Palestine for the Jewish people.

After receiving submissions from the Jewish and Arab delegations, the principal powers of Britain, France, Japan and Italy gathered in San Remo from April 18-26, 1920, to make binding dispositions of the territory of the defeated Ottoman Empire.

On April 25, 1920, the San Remo Resolution was adopted. The resolution stated that, “the mandatory power will be responsible for putting into effect the declaration originally made on November 2, 1917, by the British Government, and adopted by the other Allied Powers, in favor of the establishment in Palestine of a national home for the Jewish people.” It was at this moment that the Balfour Declaration became an internationally binding treaty. The resolution stated that the final terms of the mandates proposed would be submitted to the Council of the League of Nations for approval.

The final terms of the Mandate of Palestine were unanimously approved on July 24, 1922, by the Council of the League of Nations, which was comprised of 51 countries. The San Remo Resolution was placed in the Mandate for Palestine in the first three recitals of the preamble, as well as in Article 2. 

The Mandate for Palestine had to conform to what was intended in the San Remo Resolution. This meant that, as the Mandatory over Palestine, Britain was legally obligated with implementing the terms of the Balfour Declaration. The primary purpose of the Mandate for Palestine was to grant political rights to the Jews in Palestine so that reconstitution of their national homeland would be possible.

Although the League of Nations was superseded by the United Nations following WWII, Article 80 of the UN Charter stipulated that the UN would not alter existing states, peoples or mandates. This meant that the UN preserved and recognized the legal right for the establishment of a Jewish state from the Jordan River to the Mediterranean Sea, which was the boundary of the Mandate for Palestine.

Additionally, this boundary delineated Israel’s borders; under the customary international law doctrine of uti possidetis juris, newly forming countries acquire their pre-independence administrative borders.

In 1947, Britain resigned as the “mandatory” and gave control over to the United Nations. The UNGA passed Resolution 181 in November of that year, recommending the partition of the land into separate Jewish and Arab states, with Jerusalem and the areas surrounding it placed under international control.

However, Resolution 181 did not declare statehood, as all UN General Assembly resolutions are non-binding recommendations that carry no force of law. Instead, Resolution 181, as former Israeli ambassador to the UN Dore Gold stated, “provided international legitimacy for the Jewish claim to statehood.” Gold stated that what establishes countries is declarations of independence as opposed to actions in the UN. Israel would declare its independence on May 14, 1948.

As of today, the Mandate for Palestine also provides legal rights for any claims Israel has to the disputed West Bank. Eugene Rostow, former US under secretary of state and Yale Law School dean, commented that the West Bank is an “unallocated part of the British Mandate.”

As an unallocated part of the British Mandate, the terms of document are still binding today even though the British resigned as the mandatory 74 years ago.

Rostow confirmed this by explaining, “Many believe that the Palestine Mandate was somehow terminated in 1947, when the British government resigned as the mandatory power. This is incorrect. A trust never terminates when a trustee dies, resigns, embezzles the trust property, or is dismissed. The authority responsible for the trust appoints a new trustee, or otherwise arranges for the fulfillment of its purpose.” Therefore, the international community is obligated in implementing the terms of the mandate.

In summation, it was the Balfour Declaration and the documents that enshrined it as a binding part of international law that created Israel, as opposed to the United Nations. These documents still apply today when it comes to Israel’s rights to the West Bank. 

The writer graduated last year from Widener University School of Law, Harrisburg campus.