Act of Partition: What is there to celebrate?

Eli E. Hertz. Myths and Facts

The Israeli media is busy reporting:

“This November will mark 60 years since the famous and fateful UN partition vote that paved the way for Israel’s creation. The Knesset plans to reenact the vote with fanfare.

“The commemoration is to occur this coming November 29 (Thursday, the 19th of Kislev), when Israel’s parliament will festively reenact the UN vote that took place exactly 60 years before. An invitation has already been proffered to UN Secretary-General Ban Ki-moon, and the ambassadors of the 33 countries that voted in favor of the partition will also be invited.”

What is there to celebrate?

In a statement to the United Nations Special Committee on Palestine (UNSCOP), on October 2, 1947, the representative of the Jewish Agency for Palestine said the following about fairness, balance, and justice of the recommendation to partition Palestine:

“According to David Lloyd George, then British Prime Minister, the Balfour Declaration implied that the whole of Palestine, including Transjordan, should ultimately become a Jewish state. Transjordan had, nevertheless, been severed from Palestine in 1922 and had subsequently been set up as an Arab kingdom.

“Now a second Arab state was to be carved out of the remainder of Palestine, with the result that the Jewish National Home would represent less than one eighth of the territory originally set aside for it. Such a sacrifice should not be asked of the Jewish people.1

“… 17,000,000 Arabs now occupied an area of 1,290,000 square miles, including all the principal Arab and Moslem centres, while Palestine, after the loss of Transjordan, was only 10,000 square miles; yet the majority plan proposed to reduce it by one half. UNSCOP proposed to eliminate Western Galilee from the Jewish State; that was an injustice and a grievous handicap to the development of the Jewish State.”2

If the Partition Plan would have been implemented, it is likely to assume that the tiny state of Israel would be unable to repel any coordinated Arab assault. Jerusalem, according to the recommended plan, would not be the Capitol of a Jewish state – Jerusalem would have been internationalized.

The Knesset and the Government of Israel should reconsider their venue:

What should be remembered is that Israel’s independence is not a result of a partial implementation of the Partition Plan. Resolution 181 [Also known as the Partition Plan] has no legal ramifications – that is, Resolution 181 recognized the Jewish right to statehood, but its validity as a potentially legal and binding document was never consummated. Like the schemes that preceded it, Resolution 181’s validity hinged on acceptance of the General Assembly’s recommendation by both parties.

Professor Lauterpacht clarified that from a legal standpoint, the 1947 UN Partition Resolution had no legislative character to vest territorial rights to either Jews or Arabs. In a monograph relating to one of the most complex aspects of the territorial issue – the status of Jerusalem – Lauterpacht wrote that any binding force the Partition Plan would have had to arise from the principle pacta sunt servanda [Latin, “treaties must be honored”], that is, from agreement of the parties at variance to the proposed plan. In the case of Israel, Lauterpacht explains:

“… the coming into existence of Israel does not depend legally upon the Resolution. The right of a State to exist flows from its factual existence – especially when that existence is prolonged, shows every sign of continuance and is recognised by the generality of nations.”3

Reviewing Lauterpacht’s arguments, Professor Julius Stone, a distinguished authority on the Law of Nations, added that Israel’s legitimacy, or the legal foundation for its birth, does not reside with the United Nations recommendation to partition Palestine, which as a consequence of Arab actions became a dead issue. Professor Stone concluded:

“… The State of Israel is thus not legally derived from the partition plan, but rests (as do most other states in the world) on assertion of independence by its people and government, on the vindication of that independence by arms against assault by other states, and on the establishment of orderly government within territory under its stable control.”4

Resolution 181 had been tossed into the waste bin of history, along with the partition plans that preceded it.

Instead, celebrate by reenacting the reading of Israel’s Declaration of Independence; 5 Iyar 5708, 14.5.1948

1 Yearbook of the United Nations 1947-48. 1949. I . 13. December 31, 1948.
See: http://www.mefacts.com/cache/html/un-documents/11270.htm. (11270)
2 Delivered by Dr. Abba Hillel Silver, October 2, 1947.
3 See: Judge, Sir Elihu Lauterpacht, Jerusalem and the Holy Places (London: The Anglo-Israel Association, 1968), page 52.
4 Professor Julius Stone (1907-1985), Israel and Palestine, Assault on the Law of Nations (Baltimore: The Johns Hopkins University Press, 1981), p. 127. The late Professor Stone was recognized as one of the twentieth century’s leading authorities on the Law of Nations. His work represents a detailed analysis of the central principles of international law governing the issues raised by the Arab-Israel conflict. He was one of a few scholars to gain outstanding recognition in more than one field. Professor Stone was one of the world’s best-known authorities in both Jurisprudence and International Law.