Israel's Legal Right to Exist and the Principle of the Self‐determination of the Palestinian People?
| DOI | http://doi.org/10.1111/1468-2230.12007 |
| Published date | 01 January 2013 |
| Date | 01 January 2013 |
| Author | Anthony Carty |
REVIEW ARTICLE
Israel’s Legal Right to Exist and the Principle of the
Self-determination of the Palestinian People?
Anthony Carty*
Victor Kattan,From Coexistence to Conquest, International Law and the
Origins of the Arab-Israeli Conflict, 1891–1949, London, New York: Pluto
Press, 2009, 416 +xxxi pp, hb £90.00, pb £29.95.
The question whether Israel has a legal right to exist might appear to be one of
the most emotively charged in the vocabulary of inter national law and politics.
It evokes immediately the ‘exterminationist’ rhetoric of numerous Arab and
Islamic politicians and ideologues, not least the present President of Iran.Yet in
the perhaps overly cool and detached world of analytical legal positivism, the
proposition ‘Israel has a r ight to exist’ can only be taken to mean that there is
an international legal order, which confers this right on Israel. If there is no
international legal order, then Israel, no more and no less than any other country,
cannot be said to have a legal right to exist. This may be no more than a
Hobbesian assertion that states exist as wolves towards one another in a state of
nature. For instance in 1966 in a debate in the Security Council the Israeli
Representative said:
Whatever we do, whateverour Government decides to do, is done in order to defend
and protect our national independence and our national security – on the sole
responsibility of our Government and not on behalf of anybody else or on behalf of
any consideration but our own.1
In recent times, Premier Netanyahu has repeated this language, viz Israel must be
the master of its fate, the Jewish state exists to protect the Jewish people etc.
The existence of a legal order supposes some criteria, any criteria, of legiti-
macy, that somehow authorise decision-makers to engage in effective projects of
order whatever their merits. If these conditions are not met, it is intellectually
more honest to accept that we find ourselves in the absence of any international
legal order. In this case, the dynamic or drive underlying state actions is for the
state to sustain and preserve itself precisely with the same independent force and
energy with which it originally established itself.This is a meta-legal drive which
finds expression among international lawyers when they say that the existence of
*Sir Y K Pao Chair of Public Law, Faculty of Law, University of Hong Kong, on leave from the
University of Aberdeen.
121
st year, 1321st Meeting, UN doc.S/O.V.1321, 17, quoted by D. Bowett, ‘Reprisals involving
recourse to armed force’ (1972) 66 AJIL 1, 6.
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© 2013The Author.The Modern Law Review © 2013The Moder n LawReview Limited. (2013) 76(1) MLR 158–177
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
a state is a question of fact. Israel itself used this argument against the request for
an advisory opinion on the status of Palestine in 1948, saying, ‘The existence of
a State is a question of fact and not of law. The cr iterion of statehood is not
legitimacy but effectiveness’.2This fact is central to an analysis of international
relations from a critical perspective, because it prepares one for the compulsive,
repetitive nature of the lust of states for security, a mark of all states and a
fundamental characteristic of inter-state relations.3A state may have an individual
self-referring dr ive of legitimacy such as ‘Manifest Destiny’,but this will not offer,
or even try to offer, a convincing basis for any international communal living.
The question which will be asked of Kattan’s book is whether it demonstrates,
as he intends, a series of illegalities in the construction of Israel and in the
destruction of the Palestinian people, or whether, instead, it demonstrates a legal
vacuum which Israel itself reaffirms in Netanyahu’s fighting rhetoric.In the latter
event,is there a way to reconstruct from scratch a legal conceptual framework for
Palestine and what would be the best forum in which to achieve this?
THE CONSTRUCTION OF THE LEAGUE MANDATE OF PALESTINE
AND ITS JEWISH HOME
Given the subtitle of the book one can expect its 261 pages of text and 105 pages
of densely filled footnotes to show that these events are illegal, contravening
international law. In Kattan’s view, the flouting and manipulation of international
law are the cause of the present continuing violence. Kattan bases his legal
argument around a pillar,that the Mandate ter ritory of Palestine was included in
territor ies promised to the Arabs during the First World War,an implementation
of self-determination according to the MacMahon Letter.4This promise was not
fulfilled in relation to Palestine.Instead a Jewish Home was forcibly constructed
in contravention of legal principles. From National Archive Records, Kattan
quotes Arthur Balfour, the British Foreign Secretary, admitting that, ‘The weak
point of our position, of course, is that in the case of Palestine we deliberately
and rightly decline to accept the principle of self-deter mination. If the present
inhabitants were consulted they would unquestionably give an anti-Jewish
verdict’ (121). Balfour qualifies his statement with the assurance that the Jewish
home should be provided without dispossessing or oppressing the present popu-
lation, but from the start it is never indicated how these dual objectives are to be
2 Abba Eban arguing before the Security Council, cited by James Crawford,in The Creation of States
in International Law (Oxford:OUP, 2nd ed, 2006) 3. Crawforddescribes Eban as the Foreign Minister,
at that time he was Israeli Representative at the UN.
3 See above all, J. Derrida, ‘The Force of Law:The ‘Mystical Foundation of Authority’ 1990 (11)
Cardozo Law Review 919;also D. Campbell, Writing Security,United States Foreign Policy and the Politics
of Identity (Minneapolis, MN: University of Minnesota Press, 1998).
4The Hussein-McMahon Correspondence, Chapter 4, see especially 46. Kattan quotes the MacMahon
letter, of October 1915, to Sherif Hussain of Mecca, the main spokesman for the Pan Arab cause,
recognising the principle ofArab independence in purely Arab territor y – which Palestinewas at that
time.As will be seen, in spite of this pledge,the post 1918 Mandate of Palestine included, at British
direction,a pledge to provide a Jewish homeland.MacMahon was the British High Commissioner in
Cairo acting under the instruction of the British Foreign Secretary,Sir Edward Grey.
Anthony Carty
© 2013 TheAuthor.The Moder n Law Review© 2013 The Modern Law Review Limited. 159
(2013) 76(1) MLR 158–177
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