March 30, 1999

Recent statements by the Palestinian leadership, particularly within the United Nations, have charged that Israel's position that General Assembly Resolution 181 (II) of 29 November 1947 is not longer applicable, is 'illegal', and have asserted that this resolution is one of the principles underlying the current peace process.

The charge that Israel's position regarding the unenforceability of Resolution 181 is illegal can only be described as remarkable. It is, in fact, the Arab states and the Palestinians themselves who for decades have claimed that Resolution 181 is 'null and void'.⁽¹⁾ Article 19 of the Palestinian National Covenant, for example, declared that 'the partition resolution and the establishment of Israel are entirely illegal'. Similarly, in arguing the Palestinian case, jurist Henry Cattan proclaimed that 'at no time was the partition resolution accepted by the Palestinians or by the Arab states',⁽²⁾ while the Seminar of Arab Jurists on Palestine declared that the Resolution was 'absolutely null and void'.⁽³⁾

It was the Arab rejection of Resolution 181 that prevented adoption of the recommendation which the Resolution contained. Far from 'unilaterally annulling' the Resolution, as Palestinian spokesmen have suggested, Israel was the only relevant party prepared to uphold the Resolution. Indeed, Israel expressed its willingness to do so in the 1948 Declaration of Independence. But the Arab states refused to accept the Resolution and resorted to armed force in order to prevent its implementation. In what former U.N. Secretary General Trygve Lie termed the 'first armed aggression which the world had seen since the end of the [Second World] War',⁽⁴⁾ the surrounding Arab countries attacked the fledgling Israeli state and demonstrated, by force of arms, that Resolution 181 was in their eyes a legal nullity.

In order to respond to the new realities that emerged in the decades following the Partition Resolution, the United Nations abandoned the proposal contained Resolution 181. In its place, the Security Council adopted Resolutions 242 and 338 which provided a radically different formula for the settlement of the conflict. Indeed, this is the only formula which has been accepted by both sides as the basis for permanent status negotiations.

Resolution 181 has never been part of the agreed foundation for the peace process between Israel and the Palestinians. The letters of invitation to the Madrid Peace Conference of 1991, and the agreements signed between Israel and the Palestinians expressly provide that permanent status negotiations are to be based on Security Council Resolutions 242 and 338. No other United Nations Resolution is referred to. The Palestinians have thus affirmed that permanent resolution of the Israeli-Palestinian conflict will be achieved by negotiated settlement in West Bank and Gaza Strip territory that is the subject of those Security Council Resolutions.

Now, over 50 years later, the Palestinians are attempting to resurrect a Resolution which for decades they have proclaimed dead. Long rejecting the Resolution as invalid and resorting to violence to ensure its irrelevance, Palestinian representatives are attempting to claim legal entitlements under it. Elementary principles of equity and international law as well as agreements the Palestinians themselves have signed prohibit them from doing so.

These attempts seek to undermine the terms of reference of the Israeli-Palestinian peace process and, in so doing, place the entire process in jeopardy. The efforts to revive the defunct Resolution 181 can be added to a worrying list of recent Palestinian efforts to depart from the agreed peace process framework. These include threats to unilaterally declare a Palestinian state in violation of repeated Palestinian undertakings to refrain from unilateral acts pending the outcome of permanent status negotiations. They also include Palestinian Authority activity in Jerusalem which is expressly prohibited by the provisions of the Israeli-Palestinian Interim Agreement.

If the peace process is to have any chance of success, the Palestinian side cannot be permitted to discard legal obligations whenever it is politically convenient to do so, The international community must insist that the Palestinians comply with the peace process framework to which they are committed and adhere to the legal undertakings they themselves have made.

(1) See statements of representatives of Arab League members, 2 U.N. GAOR 142-27 (1947)
(2) Henry Cattan, Palestine, the ARabs and Israel 2655 (1969).
(3) Seminar of ARab Jurists on Palestine, Algiers, July 22-27, at 311 (1967).
(4) Trygve Lie, In the Cause of Peace: Seven Years with the United Nations 174 (1954).