Would a decision by the United Nations General Assembly to recognize a State of Palestine within the territory occupied by Jordan and Egypt prior to the June 1967 war be illegal? This is the claim made in a letter to Secretary General Ban Ki-Moon emanating from the Jerulasem Center for Public Affairs. Because the letter received apparently favorable mention in this comment to volleyboy1's thoughtful diary, Palestinians go to the U.N. - Ok.. So What Next?, and because the letter is so poorly reasoned, I decided to analyze it in public. As readers will see, although the letter purports to be a legal argument, many of the reasons advanced are not a legal argument, and the reasons that have the form of a legal argument are wrong.
By way of brief background, the president of the center is Dore Gold, a confidante of Prime Minister Netanyahu, who served during Netanyahu's first term as prime minister as Israel's ambassador to the United Nations.
In what follows, block quotations are from the letter, unblocked text is my own analysis, and double block quotations are from other sources.
The letter begins:
May 25, 2011
His Excellency Ban Ki-Moon,
Secretary-General of the United Nations,
1st Avenue & 44th St.
New York, NY 10017
Excellency,
Re: The Proposed General Assembly Resolution to Recognize a Palestinian State "within 1967 Borders" - An Illegal Action
We, the undersigned, attorneys from across the world who are involved in general matters of international law, as well as being closely concerned with the Israeli-Palestinian dispute, appeal to you to use your influence and authority among the member states of the UN, with a view to preventing the adoption of the resolution that the Palestinian delegation intends to table at the forthcoming session of the General Assembly, to recognize a Palestinian state "within the 1967 borders."
By all standards and criteria, such a resolution, if adopted, would be in stark violation of all the agreements between Israel and the Palestinians, as well as contravening UN Security Council Resolutions 242 (1967) and 338 (1973) and those other resolutions based thereon.
Our reasoning is as follows:
None of the signers, whose names are available with the letter's Hebrew version, appears to be someone of stature outside Israel in the field of international law. I am not competent to judge the signers' standing in Israel, but I do note that none of them claims to be a professor of international law.
1. The legal basis for the establishment of the State of Israel was the resolution unanimously adopted by the League of Nations in 1922, affirming the establishment of a national home for the Jewish People in the historical area of the Land of Israel. This included the areas of Judea and Samaria and Jerusalem, and close Jewish settlement throughout. This was subsequently affirmed by both houses of the U.S. Congress.
First, the League of Nations Mandate for Palestine is not the legal basis for the establishment of the State of Israel.
Second, bracketing the invocation in Israel's Declaration of Independence of
the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State[,]
the Declaration rightly relies on the United Nations Partition Resolution of November 29, 1947, UNGA Res. 181.
Third, the letter's reference to the Mandate's authorization of "close settlement" of Jews is beside the point and ignores other language in the Mandate reasonably read as denying a Jewish claim to exclusive control over the entire territory of the Mandate. Here, by the way, is the full text of Article 6, which contains the "close settlement" language:
The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency. referred to in Article 4, close settlement by Jews, on the land, including State lands and waste lands not required for public purposes.
Fourth, endorsement of the Mandate by both houses of Congress is legally irrelevant to the question supposedly addressed by the letter.
Fifth, the Declaration of Independence's "natural right" language equally applies to the right of the Palestinian people "to be masters of their own fate, like all other nations, in their own sovereign State" alongside Israel, that is, in the West Bank and the Gaza Strip.
2. Article 80 of the UN Charter determines the continued validity of the rights granted to all states or peoples, or already existing international instruments (including those adopted by the League of Nations). Accordingly, the above-noted League resolution remains valid, and the 650,000 Jews presently resident in the areas of Judea, Samaria and eastern Jerusalem reside there legitimately.
First, the letter ignores the actual text of Article 80. Assuming for the sake of discussion that the Mandate for Palestine qualifies as a trusteeship agreement, because if it does not then Article 80 is inapplicable, the rights granted by the Mandate are preserved only "until such agreements have been concluded[.]" UNGA 181 plainly "concluded" the Mandate for Palestine by authorizing the creation of two states: one jewish; the other Arab. Here is Art. 80:
1. Except as may be agreed upon in individual trusteeship agreements, made under Articles 77, 79, and 81, placing each territory under the trusteeship system, and until such agreements have been concluded, nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.
2. Paragraph 1 of this Article shall not be interpreted as giving grounds for delay or postponement of the negotiation and conclusion of agreements for placing mandated and other territories under the trusteeship system as provided for in Article 77.
Second, the United Kingdom independently announced its abandonment of the Mandate for Palestine. Indeed, UNGA 181 "[t]akes note of the declaration by the mandatory Power that it plans to complete its evacuation of Palestine by l August 1948[.]"
3. "The 1967 borders" do not exist, and have never existed. The 1949 Armistice Agreements entered into by Israel and its Arab neighbors, establishing the Armistice Demarcation Lines, clearly stated that these lines "are without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto." Accordingly, they cannot be accepted or declared to be the international boundaries of a Palestinian state.
This paragraph is a non sequitur. It is true that the Green Line, as the 1949 armistice line between Israel and Jordan was referred to, expressly was not a de jure border between the two countries. Indeed, IIRC, only the United Kingdom and Pakistan ever recognized Jordan's annexation of the West Bank and east Jerusalem.
But it does not follow, either logically or legally, that the Green Line could not become accepted, first, a de facto border and, subsequently, a de jure border.
4. UN Security Council Resolutions 242 (1967) and 338 (1973) called upon the parties to achieve a just and lasting peace in the Middle East and specifically stressed the need to negotiate in order to achieve "secure and recognized boundaries."
Nu? Here is 242:
The Security Council,
Expressing its continuing concern with the grave situation in the Middle East,
Emphasizing the inadmissibility of the acquisition of territory by war and the need to work for a just and lasting peace in which every State in the area can live in security,
Emphasizing further that all Member States in their acceptance of the Charter of the United Nations have undertaken a commitment to act in accordance with Article 2 of the Charter,
Affirms that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles:
Withdrawal of Israeli armed forces from territories occupied in the recent conflict;
Termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force;
Affirms further the necessity
For guaranteeing freedom of navigation through international waterways in the area;
For achieving a just settlement of the refugee problem;
For guaranteeing the territorial inviolability and political independence of every State in the area, through measures including the establishment of demilitarized zones;
Requests the Secretary General to designate a Special Representative to proceed to the Middle East to establish and maintain contacts with the States concerned in order to promote agreement and assist efforts to achieve a peaceful and accepted settlement in accordance with the provisions and principles in this resolution;
Requests the Secretary-General to report to the Security Council on the progress of the efforts of the Special Representative as soon as possible.
True enough, the absence of the definite article -- "Withdrawal of Israeli armed forces from territories occupied in the recent conflict," not from "the territories" -- was intentional and, therefore, does not obligate Israel to a complete withdrawal. But nor does it authorize Israeli settlements in the occupied territory.
5. The Palestinian proposal, in attempting to unilaterally change the status of the territory and determine the "1967 borders" as its recognized borders, in addition to running squarely against Resolutions 242 and 338, would be a fundamental breach of the 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, in which the parties undertook to negotiate the issue of borders and not act to change the status of the territories pending outcome of the permanent status negotiations.
First, whatever else might be said of a Palestinian approach to the United Nations, were the General Assembly to recogize the State of Palestine within particular borders, by definition, that would not be a unilateral act.
Second, an argument based on UNSCR 242 and 338 and on the 1995 Interim Agreement is hardly conclusive of the powers of the United Nations, as a whole, or the General Assembly, in particular. That is, there may be a persuasive argument against the General Assembly having the authority, in these particular circumstances, of overriding a Security Council decision not to recognize a State of Palestine, but an agreement between Israel and the Palestine Liberation Organization is not one of them.
6. The Palestinians entered into the various agreements constituting what is known as the "Oslo Accords" in the full knowledge that Israel's settlements existed in the areas, and that settlements would be one of the issues to be negotiated in the permanent status negotiations. Furthermore, the Oslo Accords impose no limitation on Israel's settlement activity in those areas that the Palestinians agreed would continue to be under Israel's jurisdiction and control pending the outcome of the permanent status negotiations.
A non sequitur as regards the authority of the United Nations General Assembly.
7. While the Interim Agreement was signed by Israel and the PLO, it was witnessed by the UN together with the EU, the Russian Federation, the U.S., Egypt, and Norway. It is thus inconceivable that such witnesses, including first and foremost the UN, would now give license to a measure in the UN aimed at violating this agreement and undermining major resolutions of the Security Council.
Again, what may be "inconceivable" to the authors of the letter in no way binds the General Assembly. Nor is it self-evident that the mere act of witnessing a document commits the witness to do more than attest to the fact that the document was, in fact, signed.
8. While the UN has maintained a persistent policy of non-recognition of Israel's sovereignty over Jerusalem pending a negotiated solution, despite Israel's historic rights to the city, it is inconceivable that the UN would now recognize a unilaterally declared Palestinian state, the borders of which would include eastern Jerusalem. This would represent the ultimate in hypocrisy, double standards, and discrimination, as well as an utter disregard of the rights of Israel and the Jewish People.
Words, words, words. Legal argument? Not.
9. Such unilateral action by the Palestinians could give rise to reciprocal initiatives in the Israeli Parliament (Knesset) which could include proposed legislation to declare Israel's sovereignty over extensive parts of Judea and Samaria, if and when the Palestinians carry out their unilateral action.
Again, this is not a legal argument.