His response to that was,
I also wish to clarify that my comment on Israel's membership of the United Nations was made to highlight the fact that every member of this body should uphold. and respect findings and recommendations issued by it. in accordance with relevant UN General Assembly resolutions. What I wanted to highlight is the non-compliance of Israel with UN decisions related to its obligations under international law, a concern the Commission extensively covered in its first report to the Human Rights Council. At no place in the interview did I question the existence of the State of Israel. On the contrary, in several instances, during the media interview in question, I have defended the existence of the State of Israel. This is fully consistent with the position of the Commission, as also stated in our first report and stressed in the letter of our Chair to the President of the Council: “The Commission does not question the status or United Nations membership of either of the concerned states of its mandate. The foundations for the legality of the State of Israel, alongside that of the State of Palestine were laid out by General Assembly resolution 181 and are not and never will be in question by this Commission” I did not intend to suggest that Israel should be excluded from the United Nations.He is asserting that UN General Assembly Resolution 181 is the legal basis for the State of Israel.
This is not remotely true.
First of all, General Assembly resolutions do not have the status of international law.
Secondly, you can read Resolution 181: it did not declare the Jewish and Arab states in Palestine. It recommended the Security Council implement the provisions listed there and suggested that if either or both states declare their independence then the UN should treat their application for membership with sympathy.
When the Arabs rejected the resolution, it became a dead letter. It is valuable in the sense that it showed that the UN overwhelmingly supported a Jewish state in Palestine, but it is has no legal weight.
Some people claim that Israel itself has used UNGA 181 as its legal basis in its Declaration of Independence. It is true that Israel's Declaration of Independence referred to the resolution as onne of many reasons supporting the right of the Jewish people to a state, but that is not the legal basis for it. The Declaration says:
In the year 5657 (1897), at the summons of the spiritual father of the Jewish State, Theodore Herzl, the First Zionist Congress convened and proclaimed the right of the Jewish people to national rebirth in its own country.This right was recognized in the Balfour Declaration of the 2nd November, 1917, and re-affirmed in the Mandate of the League of Nations which, in particular, gave international sanction to the historic connection between the Jewish people and Eretz-Israel and to the right of the Jewish people to rebuild its National Home.The catastrophe which recently befell the Jewish people - the massacre of millions of Jews in Europe - was another clear demonstration of the urgency of solving the problem of its homelessness by re-establishing in Eretz-Israel the Jewish State, which would open the gates of the homeland wide to every Jew and confer upon the Jewish people the status of a fully privileged member of the comity of nations.Survivors of the Nazi holocaust in Europe, as well as Jews from other parts of the world, continued to migrate to Eretz-Israel, undaunted by difficulties, restrictions and dangers, and never ceased to assert their right to a life of dignity, freedom and honest toil in their national homeland.In the Second World War, the Jewish community of this country contributed its full share to the struggle of the freedom- and peace-loving nations against the forces of Nazi wickedness and, by the blood of its soldiers and its war effort, gained the right to be reckoned among the peoples who founded the United Nations.On the 29th November, 1947, the United Nations General Assembly passed a resolution calling for the establishment of a Jewish State in Eretz-Israel; the General Assembly required the inhabitants of Eretz-Israel to take such steps as were necessary on their part for the implementation of that resolution. This recognition by the United Nations of the right of the Jewish people to establish their State is irrevocable.This right is the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State.ACCORDINGLY WE, MEMBERS OF THE PEOPLE'S COUNCIL, REPRESENTATIVES OF THE JEWISH COMMUNITY OF ERETZ-ISRAEL AND OF THE ZIONIST MOVEMENT, ARE HERE ASSEMBLED ON THE DAY OF THE TERMINATION OF THE BRITISH MANDATE OVER ERETZ-ISRAEL AND, BY VIRTUE OF OUR NATURAL AND HISTORIC RIGHT AND ON THE STRENGTH OF THE RESOLUTION OF THE UNITED NATIONS GENERAL ASSEMBLY, HEREBY DECLARE THE ESTABLISHMENT OF A JEWISH STATE IN ERETZ-ISRAEL, TO BE KNOWN AS THE STATE OF ISRAEL.
Resolution 181 was one of many pieces of evidence showing that Jews have the right to a state of their own. It was not the legal basis for that state.
So what is the legal basis for the State of Israel?
This 2004 legal analysis notes:
Sir Lauterpacht, a renowned expert on international law and editor of Oppenheim’s International Law, clarified that, from a legal standpoint, the 1947 UN Partition Resolution had no legislative character to vest territorial rights in either Jews or Arabs. In a monograph relating to one of the most complex aspects of the territorial issue, the status of Jerusalem,7 Lauterpacht wrote that to be a binding force, the “Partition Plan” would have had to arise from the principle pacta sunt servanda,8 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.”
Reviewing Lauterpacht’s arguments, Professor Stone added that Israel’s “legitimacy” or the “legal foundation” for its birth does not reside with the United Nations’ “Partition Plan,” 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.”9
That is Israel's legal claim to statehood - surviving and being recognized as a state. And if the COI doesn't know that basic fact, it is incompetent to do anything.
But it does know the truth, and it is lying for a specific reason.
Kothari is making two wrong assertions here: that Israel's legal foundation is based on Resolution 181, and also that the "State of Palestine" has the same legal basis. This is doubly absurd: not only is 181 not legally binding, but the Palestinian Arabs of the time rejected it - which is the exact reason it cannot be legally binding! They cannot turn back the clock and say that, sorry, we now accept UNGA 181 decades after we ripped it up.
It seems that the Commission making up the claim that 181 is the legal basis for Israel in order to pretend that Palestinians have an equal claim to nationhood as Israel does!
That is a breathtakingly cynical twisting of international law to create a legal basis for Palestinian statehood - and once you realize that this is a lie, one may wonder what exactly the legal basis for a nonexistent State of Palestine is to begin with?
This analysis shows that this commission is pretty much founded on lies.
(h/t Myths and Facts)
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