The right of existence of the State of Israel and Israel’s territorial integrity
by Elias Davidsson
(Revision, June 2002)
From time to time one comes across statements by politicians who emphasize the “right of existence of the State of Israel”. This formula has been used so many times by so many people and accepted without critical insight, as to have become a cliché.
But do States possess an inherent ‘right to exist’? Are there any legal texts defining such a right? How about the Charter of the United Nations?
The United Nations Charter
The Preamble of the U.N. Charter refers only to human rights and to equal rights of men and women and of nations large and small. The preamble does mention “peoples”, “mankind”, “human person” and “nations” as the main subjects for which the United Nations was established. The term “States” is not mentioned in the Preamble.
Article 1 lists the “Purposes” for which the United Nations were established, namely to protect the rights of peoples and nations. States are not mentioned under the Purposes of the United Nations as stakeholders. This was certainly no oversight by the drafters of the U.N. Charter. States are only mentioned in Article 2, the Principles of the United Nations, as possessing rights and duties by virtue of being members of the Organisation.
States have no inalienable rights
The Charter does not mention in any direct or indirect way the right of existence of the its members. The obligations to respect member states’ territorial integrity and their sovereignty are not based on their inalienate character but follow logically from the declared Purposes of the United Nations, namely to maintain international peace between the nations and peoples [who live in the territories controlled by these states]. Such distinction is fundamental: While Peoples and Nations possess inalienable rights, as specifically indicated in the Charter, primarily the right to self-determination, states are a historical artifact which serves pragmatic purposes in regulating and securing the civil and political life of human communities, no more and no less. It is true that many communities have established national states (in the modern sense of the word) in order to protect their interests and security. But this need not be the case. Some states are composed of a number of “nations”, while members of some national communities live across several independent states. Moreover in some cases there may exist latent or overt conflicts between the two categories State and Nation/People, as can be seen in the example of ex-Yugoslavia or with the Kurdish problem. The former Federal Republic of Yugoslavia has no inherent right of existence, unless the peoples living within its borders wish it to exist.
The establishment of the State of Israel violated the principle of self-determination
Most states have come into being as nations began to assert their right to self-determination and empires crumbled. Not so the State of Israel. Its establishment was imposed on the people of Palestine by armed force and given some sort of a legal garb by a non-binding recommandation of the General Assembly of the United Nations (Resolution 181 of 29.11.1947), voted against a substantial opposition. The establishment of the State of Israel interfered directly with the inalienable right to self-determination of the indigenous inhabitants of Palestine, whose views were disregarded by the then “international community”. The colonial character of this enterprise was stated explicitely by its chief promoter, Dr. Theodor Herzl, and was not denied by the British Mandatory Power over Palestine, who helped the Zionist movement accomplish its colonial task.
The legality of the cited United Nations recommandation regarding the partition of Palestine and the allocation of more than half of Palestine’s territory to mostly immigrated Jews for the establishment of a Jewish State, is and has been disputed. This is one of the reasons why Israeli governments avoid referring to it. But even if this Resolution had some legality, it would not necessarily follow that the establishment of the State of Israel was based on an inherent right, for such inherent right does not exist: Neither for the State of Israel nor for any other members of the United Nations. The historical rights of Jews to Palestine, claimed by the Zionist movement, are irrelevant in the context of international law.
Arabs’ opposition to Israel’s “right of existence”
While it is a requirement under Article 1(2) of the U.N. Charter that the territorial integrity and political independence of any existing state be respected, states are not required to endorse other states’ right of existence. It is moreover disingenious to expect of people who lost their homeland as a result of another state’s establishment to endorse as legitimate the very act causing their destitution. They are entitled to consider Israel’s establishment as an unjust operation, refuse to bless the hand that had sinned and entitled to struggle for a just redress.
The accusation levelled at Arab states that they still refuse to recognize Israel’s existence is technically inaccurate. Arab states have formally endorsed U.N. Resolutions concerning the right of the State of Israel to secure borders, which in terms of international law, is all what is required of them.
All Arab states, together with all European, African and Asian states, have endorsed until 1990 the proposal for an International Peace Conference on the Middle East based on Security Council resolutions 242 (1967) and 338 (1973) and the legitimate national rights of the Palestinian people, primarily the right to self-determination. The position of Arab states vis a vis Israel is therefore fully consistent with the United Nations Charter.
Security Council Resolution 242
Security Council resolution 242 (1967) emphasizes the need for “every State in the [Middle East] to live in security” and establishes two basic principles for a just and lasting peace in the Middle East, one of which is “Israel’s withdrawal from (the) territories occupied in 1967” and the other the “termination of the all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independance of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force”.
It must be recalled that Security Council resolution 242 (1967) does not consecrate Israel’s right of existence, only its right to integrity and security. Even the United States, Israel’s main ally, would have been at pains to introduce into texts of international law the concept of the “right of existence” of the State of Israel.
Is the use of force against the State of Israel legitimate ?
The U.N. Charter proscribes any “threats or use of force against the territorial integrity or political independence of any state” (Article 2). To be able to violate “territorial integrity”, a state must have a defined territory. To be able to violate the “political independence” of a state, that state must be “politically independent”. The State of Israel however does not fulfill either criteria. Thus Article 2 of the Charter is not applicable to Israel. This may come as a surprise to many readers and will therefore be substantiated in some detail.
Is Israel a ‘politically independent State’ ?
On 14 May 1948, eve of the announcement of the establishment of the State of Israel, a meeting of the Zionist leadership in Palestine took place. These were the people who were to become the first government of the State of Israel. At this meeting it was proposed by one delegate that Israel would be declared an “independent and sovereign” state. As the Protocols of the meeting show, this proposal was extensively discussed but finally rejected, as it would have required to give equal status to all inhabitants, Jews and non-Jews. The next day the members of the National Council “representing the Jewish people in Palestine and the [World] Zionist Movement” proclaimed the “establishment of the Jewish state in Palestine to be called Medinat Yisrael (the State of Israel)”[]. Israel’s High Court has since confirmed the view that the State of Israel is not a sovereign state of its inhabitants but belongs to all of the world’s Jews. This has been confirmed by the Israeli Law of Return, which confers automatic Israeli citizenship to any person proving bona fide Jewish descent. As a State belonging, according to its own definition, to a worldwide community of Jews, the State of Israel cannot be considered a “politically independent” of that community.
Does Israel have a defined territory ?
In the meeting, referred to above, the question of borders arose. The relevant discussion was summarized by David Ben-Gurion, who became Israel’s first Prime Minister:
“There was a discussion of this matter in the People’s Executive. There was a proposal to determine borders, and there was opposition to this proposal. We decided to evade (and I choose this word intentionally) the matter … We have left this matter open for developments” (Protocols of Debates, 1948, p.19; Hebrew; emphasis in the original)[].
Ben-Gurion last word (“developments’) proved subsequently to have had a hidden meaning. It seems that Ben-Gurion correctly assessed that Zionist military forces would ultimately conquer territories lying outside the area allocated by Resolution 181 to the incumbent Jewish state. He was therefore loath to restrict a priori Israel’s borders through a premature declaration. His assessment was proven correct and confirmed in his War Diary (Vol. 1, pp. 210-1) where he wrote:
“The war will give us the land. The concept of ‘ours’ and ‘not ours’ are peace concepts only and in war they lose their whole meaning.”[]
Zionist forces conquered the Western Galilee, the modern part of Jerusalem and other areas allotted to the Arab Palestinian State. But in spite of these territorial gains, Israel refused until today to define these territories as Israel’s permanent acquisitions. There were more “developments” to come, more areas to be conquered and Judaized.
As these lines are written, the State of Israel has not yet defined its ultimate borders and not even declared its ultimate territorial claims. This is no some bureaucratic oversight. The Zionist movement has had, since its inception, far greater territorial ambitions than the area proposed in 1947 by the United Nations to the Jewish state, or for that matter, by the Balfour Declaration of 1917. These ambitions include areas of Lebanon, Syria and, according to extreme claims, of Jordan. Some Zionists, including religious fundamentalists, even dream of wider areas, referring to biblical promises extending to Mesopotamia. Israel has proven its territorial ambitions by its unilateral annexation of East Jerusalem, of the Golan heights and its creeping annexation of all the West Bank, which continues unabated, regardless of changes in government and in agreements made.
 Cited by Uri Davis: Israel – An Apartheid State, Zed Books, London, 1987, p.13-14
 Op. cit. p.14
 Cited by Sheila Miller in a Letter to the Editor published in Jewish Chronicle (London), 18 January 2002