Legal Entitlements, Changing Circumstances and Intertemporality: A Comment on the Creation of Israel and the Status of Palestine

Abstract

The events surrounding the establishment of the State of Israel in 1948 and the ensuing Palestiniannaqba(disaster) have generated an abundance of legal literature. It is beyond the ambitions of this article to revisit all or most of the existing literature, or to strive and comprehensively discuss the various legal propositions they consider. Instead, it offers a critical assessment of some of the legal conclusions offered by one of the most influential experts in the field – Professor James Crawford – who, in the second edition of his seminal treatiseThe Creation of States in International Law,discusses at some length the events surrounding the creation of Israel and the status of Palestine. Section 2 of the article offers some general observations on the continued relevance of the events surrounding the creation of Israel. In particular, it raises the question of the relationship between the principles ofex injuria non oritur jusandex factis oritur jusin the Israeli–Palestinian context. Section 3 examines the legal significance of the 1922 League of Nations Mandate and Crawford's position concerning its validity. Sections 4 and 5 adopt a similar examination with regard to two other historic events of potential legal significance, namely the 1947 UN General Assembly Resolution 181 (the Partition Resolution) and Israel's 1948 Declaration of Independence. Section 5 also briefly examines Crawford's conclusions relating to the status of Palestine, and Section 6 concludes.