On Sat, 18 May 2002 kjkhoo at softhome.net wrote:
> > No- the existence of Israel derives from a vote of the United Nations
>
> I advanced such an argument in a local newsgroup, only to receive a
> response that argued that the UN only voted for partition, but that
> Israel was formed as the result of a unilateral declaration of
> independence; hence, it does _not_ derive from a UN vote.
>
> Any comments, clarifications on this?
Israel was originally part of the Palestinian Mandate entrusted to Britain. Mandates were unprecedented legal forms that came into being under Article 22 of the charter of the League of Nations, and they outlived that body's very short effective existence. The UN, as the League of Nations' successor body, inherited their administration in a series of formal handovers.
The original LN mandate principle was that all territories so administered were to be "prepared for independence" as soon as possible. And the Palestinian mandate incorporated the text of the Balfour declaration, which declared Britain's intention to "facilitate Jewish immigration" and "the establishment of a national home for the Jews" "without prejudice to the existing inhabitants" -- an impossible task.
The legal right of Israel to exist derives from this mandate, a very problematical legal form to be sure, since its unprecedented, rare and shortlived nature make it the very opposite of an established legal form. It was also created under the aegis of a very short-lived institution and incorporated obvious compromises and contradictions. Its main (and very important) legal result was that it made the resulting terroritory not a colony, so that instead of colonists who held citizenship in the governing country, its inhabitants became citizens of the mandate. Which meant that once the mandate was terminated (under whatever circumstances), they automatically became by default citizens of whatever successor form was left -- or of none.
The mandate was terminated similarly to the way the British left India. They left in a hurry and took no responsibility for preventing the civil war between the inhabitants that everyone knew would break out the minute they pulled up stakes. And which in this case had been going on on and off ever since the mandate started after WWI. Britain formally handed responsibility for the mandate over to the UN in February 1947 precisely because she saw no solution to what was already becoming a crisis. In August, the UN Special Committee on Palestine recommended partition. In September, Britain announced that it would leave the territory on April 15, 1948; it was later persuaded to leave one month later, on May 15th. In November 1947, the UN voted to approve the partition plan, and to authorize it to come into effect the moment Britain terminated its trusteeship under the mandate on May 15th.
The mandate established Israel's right to existence in a part of Palestine, but didn't specify which part. The UN partition plan specified which part, but it specified impossible parts. The UN partition was essentially two archipelago bantustan states jig-sawed together. It would have been completely unworkable even if both sides had been as peacefully disposed as the communities of Switzerland or Belgium. It was absurdly so when they were already in a state of armed rebellion against each other. The UN also made no provisions for how this impossible plan was to implemented, nor alloted any funds or forces with which it was to be carried out. Britain refused to extend its stay, or to impose any alternative solution not acceptable to both sides. And there was none such, since the Arab inhabitants bitterly opposed partition. So all sides marched inexorably towards arbitrement by war.
The November UN vote legally re-authorized the idea present in the mandate, that the Jews had a right to a national home in part of Palestine, but where the mandate declined to say where, the UN plan specified a patently unreal where. The civil war meanwhile got hotter and hotter. And since no governing authority was set up to take over after the British High Commissioner left, both sides knew May 15th was the day civil war would break out officially, as it were, and prepared accordingly.
So to summarize all that in answer your question: the legal right of the Jews to a home somewhere in Palestine derives from the League of Nations vote to establish a mandate. The UN vote reaffirmed that mandate, with all its internal contradictions. Where the mandate declined to say where the home was to be, the UN vote specified a patently unreal where. So the where question was settled in the only way it could be, by a war that all saw coming even as the mandate was being affirmed. And it has been resettled by war ever since. Hopefully someday it will be resettled by international law.
[Footnote: the US, while not legally belonging the League of Nations after refusing the ratify the treaty, insisted that no mandates could be set up without its consent, and none were. There were several, covering all German and Ottoman former colonies.]
Michael