ONLINE

NOTE
Law Breaking, Law Making, and
International Law: Palestine, Israel, and
the Foundations of International Law
MOHAMMAD FADEL*

This Essay argues that the Israel-Palestine conflict’s prominent place in global
consciousness reflects deep disagreement on the nature of post-World War II international
law and the relationship between power, sovereignty, and legitimacy in that order. It argues
that the Zionist movement and then the State of Israel, by creating facts on the ground
and enlisting the ex post recognition of its actions by global powers, have consistently sought
to make international law by breaking it, in reliance on the principle of effectiveness and
assertions of natural right. This strategy has created a paradox between an effective, but
law-breaking state, Israel, and a normative, but ineffective state, Palestine, which raises
important theoretical questions about the nature of international law. The Essay explores
this theoretical paradox through the lens of legal debates dating back to the interwar period
in Weimar Germany. It then maps those interwar debates onto the positions of a group
of international lawyers’ arguments with respect to Palestine. This Essay argues that the
institutional structure of post-World War II international law—including the United
Nations (UN), the incorporation of international law into the domestic law of member
states of the UN, and the spread of non-governmental organizations dedicated to defending
international law—has enabled Palestine, despite its inability to satisfy the empirical
prerequisites of statehood, to marshal an increasingly effective coalition of actors united in
supporting its de jure right to independence. The continued salience of Palestine, therefore,
exemplifies Herman Heller’s political understanding of law as an “intersubjective,
normative binding of wills” that is required, at a minimum “to prevent law making by
law breaking.”

* Professor of Law, University of Toronto Faculty of Law; University of Virginia School of Law,
J.D. ’99. Professor Fadel would like to acknowledge the dedication of the students at the Virginia Journal
of International Law for their work on this Essay, and the sacrifices students and colleagues throughout
North America have made for Palestinian freedom in the last year.
2 VIRGINIA JOURNAL OF INTERNATIONAL LAW [ONLINE

I. INTRODUCTION ..................................................................................... 2
II. PALESTINE IN PUBLIC INTERNATIONAL LAW IN THE INTERWAR
PERIOD ................................................................................................... 6
A. International Law, the State of Palestine, and “the Sacred Trust of
Civilization” .......................................................................................... 6
B. The Terms of the Palestine Mandate ...................................................... 8
III. PUBLIC INTERNATIONAL LAW, THE BIRTH OF ISRAEL, AND THE
FATE OF PALESTINE ........................................................................... 11
A. Palestine and the Charter of the United Nations .................................. 11
B. International Law and Zionism: Resolution 181 and the Charter of the
United Nations.................................................................................... 12
C. Conclusion ........................................................................................... 15
IV. THE LEGAL BASIS OF ISRAELI STATEHOOD ................................... 16
V. ISRAEL, PALESTINE, AND THE FOUNDATIONS OF
INTERNATIONAL LAW: LAW MAKING BY LAW BREAKING? ......... 21
VI. CONCLUSION ....................................................................................... 30

I. INTRODUCTION

Palestine has haunted international law since the end of World War I.
Viewed as a site of conflicting national aspirations, the conflict in Palestine
between Jewish nationalists (Zionists) and Palestine’s Arab population left
its mark on the foundational documents of the League of Nations1 and has
consumed the United Nations (UN) until the present.2 Over time, that
conflict has also expanded into a global conflict. In the post-colonial era, it
is a sharp identity marker, dividing the former imperialist powers of the
global north and the formerly colonized world of the global south. This
sharp division in the global community was exposed by radically different
reactions to Hamas’s October 7th attack on Israel, Israel’s subsequent

1. League of Nations Covenant; The Palestine Mandate, League of Nations Doc. C.529.M.314.1922.
VI (1922).
2. ARDI IMSEIS, THE UNITED NATIONS AND THE QUESTION OF PALESTINE: RULE BY LAW
AND THE STRUCTURE OF INTERNATIONAL LEGAL SUBALTERNITY 2 (2023).
2024] LAW BREAKING AND LAW MAKING 3

assault on the Gaza Strip,3 and South Africa’s suit against Israel before the
International Court of Justice (ICJ)4 for alleged violations of the Genocide
Convention.5 The Israel-Palestine conflict has also spawned third-order
conflicts within the publics of the global north over their respective
governments’ stances and actions taken in response.6
The conflict in civil society is perhaps most acute in U.S. universities,
where increasingly diverse student bodies have faced entrenched support
for Israel among political and cultural elites7 who have historically viewed
the Israel-Palestine conflict through the lens of a “special relationship”
between the United States and Israel.8 In the best of circumstances, these
elites have viewed sympathy for Palestinians suspiciously, and in the worst,
as prima facie evidence of terrorism or other criminality.9 Controversy over
Palestine-related campus protests at Columbia University has resulted in the
first mass arrests of students there since 1968.10 The urgency of the conflict
is everywhere apparent in public culture, as shown by prominent New York

3. Jorge Heine, International Reaction to Gaza Siege Has Exposed the Growing Rift between the West and
the Global South, THE CONVERSATION (Nov. 8, 2023, 11:19 AM), http://theconversation.com/
international-reaction-to-gaza-siege-has-exposed-the-growing-rift-between-the-west-and-the-global-
south-216938.
4. S. Afr. v. Isr., Application Instituting Proceedings, (Dec. 28, 2023), https://www.icj-cij.org/
sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf.
5. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948;
Nosmot Gbadamosi, Why the Global South Supports Pretoria’s ICJ Genocide Case, FOREIGN POL’Y MAG.
(Jan. 17, 2024, 6:37 AM), https://foreignpolicy.com/2024/01/17/israel-gaza-icj-genocide-south-
africa-namibia-bangladesh-global-south/.
6. Rahul Mukherjee & Gordon Shoshana, Pro-Palestinian Protests on the Rise Across the U.S., AXIOS
(Dec. 9, 2023), https://www.axios.com/2023/12/09/palestinian-protests-us-israel-gaza-war; Sammy
Gecsoyler, Tens of Thousands of Pro-Palestine Protesters March through London, GUARDIAN (Mar. 9, 2024),
https://www.theguardian.com/uk-news/2024/mar/09/tens-of-thousands-of-pro-palestine-
protesters-march-through-london; Ben Cohen & Joshua Chong, ‘Steeped in Frustration’: Pro-Palestinian
Protests Enter Eighth Week as Fighting Resumes, TORONTO STAR (Dec. 2, 2023), https://www.thestar.
com/news/gta/steeped-in-frustration-pro-palestinian-protests-enter-eighth-week-as-fighting-
resumes/article_36e8975b-4e2e-5ed2-8f5a-9685c812e255.html; Erika Solomon, Germany’s Stifling of
Pro-Palestinian Voices Pits Historical Guilt Against Free Speech, N.Y. TIMES, Nov. 10, 2023, https://www.
nytimes.com/2023/11/10/world/europe/germany-pro-palestinian-protests.html.
7. See generally Darryl Li, The Rise and Fall of Baby Boomer Zionism, HAMMER & HOPE,
https://hammerandhope.org/article/boomer-zionism (last visited Mar. 21, 2024).
8. JEREMY M. SHARP, CONG. RSCH. SERV., RL 33222, U.S. FOREIGN AID TO ISRAEL 5 n.33
(2023).
9. See CTR. FOR CONST. RTS. & PALESTINE LEGAL, ANTI-PALESTINIAN AT THE CORE: THE
ORIGINS AND GROWING DANGERS OF U.S. ANTITERRORISM LAW (2024) (describing how federal
antiterrorism statutes, namely 18 U.S.C. § 2339B criminalizing material support for terrorist
organizations, have been used to stifle support for Palestine.
10. Maya Stahl, Sarah Huddleston & Shea Vance, Shafik Authorizes NYPD to Sweep ‘Gaza Solidarity
Encampment,’ Officers in Riot Gear Arrest over 100, COLUM. DAILY SPECTATOR, Apr. 18, 2024,
https://www.columbiaspectator.com/news/2024/04/18/shafik-authorizes-nypd-to-sweep-gaza-
solidarity-encampment-officers-in-riot-gear-arrest-over-100/.
4 VIRGINIA JOURNAL OF INTERNATIONAL LAW [ONLINE

Times podcaster Ezra Klein’s devotion of considerable space in his podcast

to the Israel-Palestine conflict.11
The Israel-Palestine conflict regularly arouses feelings of political
paralysis based on an assumption of the radical and irreconcilable claims of
the Jewish and Palestinian peoples to statehood in Palestine. The aura of
political despair that hangs over the conflict perhaps also explains why many
legal scholars choose to avoid the conflict entirely. However, the space for
silence is narrowing, as the ICJ has granted provisional measures in South
Africa’s case against Israel, including an order predicated on the conclusion
that Palestinians in Gaza were plausibly at risk of an imminent genocide.12
The same court may also rule, possibly as soon as this summer, that Israel’s
occupation of the West Bank and Gaza Strip is per se illegal.13
This Essay asks whether it is possible to learn anything about the nature
of international law from a careful study of the Israel-Palestine conflict,
beyond simply marshaling arguments for one side or the other. I argue in
this Essay that the Israel-Palestine conflict illuminates some of the most
important questions jurists ask when debating the foundations of
international law and how post-World War II international law provides
important resources to resist the tendency of powerful actors to use law
breaking as a strategy of international law making. It is no accident that the
political conflict over Palestine has become global: the issues it raises go to
the heart of the question of whether law making by law breaking will be
tolerated.
This Essay will proceed as follows. Part II explores the status of
Palestine in public international law in the interwar period up to the
admission of Israel to the UN in 1949. Part III provides an overview of the
crucial events surrounding the end of the Palestine Mandate, the formation
of the State of Israel, and the (near) destruction of Palestine. Part IV centers
the doctrine of effectiveness in the context of the larger theoretical
discussion about the normative status of the “exception” in law—i.e., the
relationship of law to sovereignty and politics. It focuses on the contrasting
role that the doctrine of effectiveness (and particularly the so-called

11. The Ezra Klein Show, N.Y. TIMES (2023), https://podcasts.apple.com/us/podcast/

the-ezra-klein-show/id1548604447. To the best of the author’s knowledge, the first time Klein hosted
an episode on his podcast on the Israel-Palestine conflict was in the wake of October 7. Between
October 18 and December 19, Klein hosted eleven episodes on the conflict.
12. Press Release, ICJ, Application of the Convention on the Prevention and Punishment of the
Crime of Genocide in the Gaza Strip (S. Afr. v. Isr.): The Court Indicates Provisional Measures, No.
2024/6 (Jan. 26, 2024). A U.S. federal district court judge agreed with the reasoning of the ICJ. Def.
for Child. Int’l v. Biden, No. 23-cv-05829-JSW, 2024 WL 390061, at *1, *5 (N.D. Cal. Jan. 31, 2024)
(“Yet, as the ICJ has found, it is plausible that Israel’s conduct amounts to genocide.”).
13. Press Release, ICJ, Legal Consequences Arising from the Policies and Practices of Israel in
the Occupied Palestinian Territory, Including East Jerusalem (Request for Advisory Opinion)
Conclusion of the Public Hearings Held from 19 to 26 February 2024, No. 2024/17 (Feb. 26, 2024).
2024] LAW BREAKING AND LAW MAKING 5

Montevideo factors) plays in the claims of each side to statehood.14 The

Essay argues that Israel’s reliance on the doctrine of effectiveness to allow
what would otherwise be unlawful conduct confirms what Ardi Imseis has
called an international law regime of “rule by law” with respect to Palestine
that is inconsistent with the ideal of “rule of law” that the new post-World
War II order, as set out in the UN Charter,15 seems to promise.16
Part V unpacks the different roles that effectiveness plays in Israel and
Palestine’s legal claims to illustrate different theoretical conceptions of
sovereignty and its relationship to law in light of Weimar-era debates
between and among several prominent German legal theorists. Carl Schmitt,
the arch-conservative, ardently defended the absolute character of sovereign
power.17 The liberal Hans Kelsen advanced what he called “the pure theory
of law,”18 a depoliticized, legal conception of sovereignty that rejected the
connection between power and sovereignty and posited a radical separation
between law and morality. The social democrat, Herman Heller, proposed a
political conception of sovereignty, but unlike Schmitt, did so on the basis
of democratic political morality instead of the arbitrary will of a sovereign
dictator.19 Part V further argues that these three approaches to law and
sovereignty are replicated in the arguments advanced by advocates for Israel,
such as Julius Stone,20 advocates for a politically neutral system of positive
international law, such as the renowned scholar of international law and
former ICJ judge James Crawford,21 and advocates for an independent
Palestine, such as American law professor John Quigley.22 These deep
theoretical disagreements on the relationship of sovereignty to law cast light

14. JAMES CRAWFORD, STATE ¶¶ 13-14 (2011) [hereinafter CRAWFORD, STATE]. The four
Montevideo factors supporting statehood are: (a) a permanent population; (b) a defined territory; (c)
self-government; and (d) capacity to enter into foreign relations with other states.
15. U.N. Charter.
16. IMSEIS, supra note 2, at 6. Cf. MARK MAZOWER, NO ENCHANTED PALACE: THE END OF
EMPIRE AND THE IDEOLOGICAL ORIGINS OF THE UNITED NATIONS (2009) (arguing that the UN,
in its origin, was intended to serve the interests of empire).
17. Tracy B. Strong, Foreword to CARL SCHMITT, THE CONCEPT OF THE POLITICAL xx
(Expanded ed. 2007) (“[Schmitt] did not conceive sovereignty as something each individual might have
but rather as the exercise of power of the state.”).
18. See generally Hans Kelsen, The Pure Theory of Law and Analytical Jurisprudence, 55 HARV. L. REV.
44 (1941).
19. For an overview of these jurisprudential debates on the relationship of law to power and
sovereignty, see generally DAVID DYZENHAUS, LEGALITY AND LEGITIMACY: CARL SCHMITT, HANS
KELSEN, AND HERMANN HELLER IN WEIMAR (1999).
20. See generally JULIUS STONE, ISRAEL AND PALESTINE: ASSAULT ON THE LAW OF NATIONS
(1981).
21. See generally James Crawford, The Creation of the State of Palestine: Too Much Too Soon?, 1 EUR. J.
INT’L L. 307 (1990) [hereinafter Crawford, Creation of Palestine].
22. JOHN QUIGLEY, THE STATEHOOD OF PALESTINE: INTERNATIONAL LAW IN THE MIDDLE
EAST CONFLICT (1st ed. 2010).
6 VIRGINIA JOURNAL OF INTERNATIONAL LAW [ONLINE

on why Palestine remains a, if not the, central problem facing the post-
World War II legal order.23

II. PALESTINE IN PUBLIC INTERNATIONAL LAW

IN THE INTERWAR PERIOD

Many popular accounts of the Israel-Palestine conflict begin with the

events surrounding the establishment of Israel and the failure to establish a
Palestinian state.24 However, such accounts often omit two important
aspects of the story.
The first omission comprises Palestine’s pre-1948 history, allowing the
conflict to be described as taking place, essentially, in a terra nullius. But
Palestine was not terra nullius.25 The post-World War I settlement created an
internationally recognized legal person known as the State of Palestine that
enjoyed all aspects of legal personhood under international law except
independence.26 A distinct Palestinian nationality existed in public
international law separate from any other nationality.27 The second omission
is the sui generis genealogy of the State of Israel, which not only created a
Jewish state, but destroyed (or attempted to destroy) the legal state of
Palestine.28 Part II of this Essay deals with the first of these two omissions.
Part III addresses the second.

A. International Law, the State of Palestine, and “the Sacred Trust of Civilization”

The two most important treaties regulating the status of Palestine and
its people in the immediate aftermath of World War I were the 1919
Covenant of the League of Nations29 and the 1923 Treaty of Lausanne.30
Article 22 of the former declared that those territories “formerly belonging
to the Turkish Empire,” due to their relatively advanced development, had
reached a stage “where their existence as independent nations can be

23. IMSEIS, supra note 2, at xv.

24. See, e.g., Noah Feldman, The New Antisemitism, TIME (Feb. 27, 2024, 8:00 am),
https://time.com/6763293/antisemitism/ (stating that Israel came into existence by virtue of a UN
resolution in 1947 without discussion of its status in the wake of World War I).
25. JAMES CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW 432 (2nd ed. 2007)
[hereinafter CRAWFORD, CREATION OF STATES].
26. QUIGLEY, supra note 22, at 77 (quoting Crawford for the proposition that while the territories
subject to Class A mandates were not “independent,” they were nevertheless “states”); See also infra p.
10 and notes 61-64.
27. See infra pp. 9-10 and notes 51-60.
28. QUIGLEY, supra note 22, at 427 (suggesting “Palestine in 1948 remained a single undivided
self-determination unit” in international law).
29. League of Nations Covenant.
30. Treaty of Peace (Treaty of Lausanne), July 24, 1923.
2024] LAW BREAKING AND LAW MAKING 7

provisionally recognized.”31 While Palestine was placed under the

supervision of Mandatory Power Great Britain, pursuant to the terms of the
Palestine Mandate,32 the relationship between the Mandatory Power and the
people of Palestine was one of trust for the “well-being and development of
such peoples.”33
The Covenant’s recognition of the right of the peoples of the former
Ottoman Empire to self-government was no accident.34 It reflected U.S.
President Woodrow Wilson’s Fourteen Points, which expressly recognized
the right of the non-Turkish nationalities of the Ottoman Empire to “an
undoubted security of life and an absolutely unmolested opportunity of
autonomous development.”35 Although Britain and France, acting pursuant
to the secret Sykes-Picot Agreement of 1916, did not fully honor Wilson’s
promise of “absolutely unmolested opportunity of autonomous
development” for the Arabs of the Ottoman Empire,36 Article 22 placed
them in a privileged position relative to other territories then under
European rule.37 Unlike other colonial territories, the independence of the
Arab provinces of the Ottoman Empire was provisionally recognized,
subject only to “administrative advice and assistance by a Mandatory until
such time as they are able to stand alone.”38 At a time when the right to self-
determination was not yet universally recognized under customary
international law, the Arabs of the Ottoman Empire had received
recognition of their entitlement to that right under positive international
law.39
Unlike the other former Ottoman territories, however, Palestine had not
by 1947 achieved the independence it was promised.40 Before considering

31. League of Nations Covenant art. 22.

32. The Palestine Mandate, League of Nations Doc. C.529.M.314.1922. VI (1922).
33. League of Nations Covenant art. 22.
34. Id. (“The wishes of these communities must be a principal consideration in the selection of
the Mandatory.”).
35. Woodrow Wilson, Fourteen Points, in 45 The Papers of Woodrow Wilson 536, art. XII
(Arthur S. Link et al., eds. 1984).
36. The Sykes-Picot Agreement, Fr.-Gr. Brit., 1916 (partitioning control over newly independent
Arab nations between the two countries).
37. Other territories belonging to the defeated Central Powers were subjected to mandates without
provisional recognition of their independence, a distinction reflected in the scholarly designation of
these other territories as Class B or Class C Mandates compared to the designation of the former
territories of the Ottoman Empire as Class A Mandates. See League of Nations Covenant art. 22; RUTH
GORDON, MANDATES ¶¶ 6-9 (2013).
38. League of Nations Covenant art. 22.
39. IMSEIS, supra note 2, at 56.
40. Iraq achieved independence in 1932, followed by Lebanon in 1942, Syria in 1945, and
Transjordan in 1946. The former territories of the Ottoman Empire were known in the colonial
parlance of international law at the time as “Class A” mandates to distinguish them from other
territories that had not reached a stage of development that entitled them to provisional recognition of
their independence. QUIGLEY, supra note 22, at 83.
8 VIRGINIA JOURNAL OF INTERNATIONAL LAW [ONLINE

why Palestine did not attain independence as contemplated by Article 22, it

is important to consider the Treaty of Lausanne—the second foundational
treaty in the interwar period relevant to understanding Palestine’s status in
international law. Article 30 of that treaty expressly established, as a matter
of public international law, that those persons who had formerly been
subjects of the Ottoman Empire would ipso facto become nationals of any
successor state that formed in the territory in which they habitually resided.41
In doing so, the Treaty of Lausanne simply gave effect to what was already
the prevailing customary rule of international law.42
Article 30 therefore established two fundamental rules with respect to
the nationality of former Ottoman subjects from the perspective of
international law: first, former Ottoman nationals would become nationals
of the state in which they had habitually resided prior to the dissolution of
the Ottoman Empire; and second, they would not be nationals of any other
successor state to the Ottoman Empire.43

B. The Terms of the Palestine Mandate

Palestine’s failure to attain independence was not due to a lack of

capacity or other internal impediment relative to its Arab neighbors. Rather,
its independence was deferred because of the idiosyncratic terms of the
Palestine Mandate, which committed Great Britain in its capacity as
Mandatory to facilitate “the establishment in Palestine of a national home
for the Jewish people.”44 The very same language requiring the Mandatory
to assist in the establishment of a “Jewish national home” also made clear,
however, that “nothing should be done which might prejudice the civil and
religious rights of existing non-Jewish communities in Palestine.”45 That the
Jewish national home had to be consistent with rights of non-Jews was an
obvious aspect of the duties Article 22 imposed on the Mandatory to
exercise their powers as a “sacred trust of civilisation” for the benefit of

41. Treaty of Peace (Treaty of Lausanne) art. 30, July 24, 1923 (“Turkish subjects habitually
resident in territory which in accordance with the provisions of the present Treaty is detached from
Turkey will become ipso facto, in the conditions laid down by the local law, nationals of the State to
which such territory is transferred.”).
42. For an overview of the general principles of international law governing nationality in the
context of state succession, see JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC
INTERNATIONAL LAW 433-37 (8th ed. 2012).
43. Mutaz Qafisheh, Genesis of Citizenship in Palestine and Israel. Palestinian Nationality during the Period
1917-1925, 11 J. HIST. INT’L L. 1, 3, 7 (2009).
44. The Palestine Mandate, League of Nations Doc. C.529.M.314.1922. VI (1922). The Palestine
Mandate only became legally effective as of September 29, 1923. Qafisheh, supra note 43, at 16.
45. The Palestine Mandate, League of Nations Doc. C.529.M.314.1922. VI (1922).
2024] LAW BREAKING AND LAW MAKING 9

Palestine’s inhabitants.46 Were it read otherwise, the Palestine Mandate

would arguably have been ultra vires the League of Nations Covenant itself.47
Certain provisions of the Mandate clearly anticipated the presence and
legal rights of non-Jews in Palestine. For example, Article 2 required Great
Britain to establish institutions of self-government and “safeguard[] the civil
and religious rights of all the inhabitants of Palestine, irrespective of race
and religion.”48 Article 5 established the legal unity of the territory of
Palestine and forbade the Mandatory from ceding any part of its territory to
a foreign government.49 Article 6, while requiring Great Britain to facilitate
Jewish immigration to Palestine, also required Great Britain to “ensure[] that
the rights and position of other sections of the population are not
prejudiced” as a result of such immigration.50
Article 7 of the Mandate required Great Britain to promulgate a
nationality law for Palestine to facilitate Jewish immigration to Palestine by
offering immigrating Jews a means to acquire Palestinian nationality.51 The
nationality law that Great Britain enacted recognized as Palestinian anyone
who had previously been an Ottoman subject, regardless of their religious
identity,52 both by virtue of generally applicable principles of international
law53 and as required by Article 30 of the Treaty of Lausanne.54 When the
Palestine Citizenship Order went into effect in 1925, slightly more than
ninety-nine percent of those who automatically received Palestinian
nationality were Arabs—largely Muslims and Christians with small numbers
of other religions (Bahais, Druze, and Samaries); less than one percent were
Jews.55 Further, the number of foreign Jews in Palestine in 1925 dwarfed the
number of Jews who had been Ottoman subjects. Of the almost 122,000
Jews in Palestine at the time, 115,000 were foreigners, 38,000 of whom had
acquired provisional Palestinian nationality in 1922 and 77,000 of whom
were registered Jewish immigrants who arrived in Palestine between 1920
and 1925.56

46. League of Nations Covenant art. 22 (“[T]he well-being and development of such peoples
form a sacred trust of civilisation and that securities for the performance of this trust should be
embodied in this Covenant”).
47. See, e.g., Ralph Wilde, Tears of the Olive Trees: Mandatory Palestine, the UK, and Reparations for
Colonialism in International Law, 25 J. HIST. INT’L L. 387, 418 (2022).
48. The Palestine Mandate, art. 2, League of Nations Doc. C.529.M.314.1922. VI, (1922).
49. Id. Art. 5.
50. Id. Art. 6.
51. Id. Art. 7.
52. For the details of the Palestine citizenship law during the Palestine Mandate, see Palestine
Citizenship Order, OFF. GAZETTE, Sept. 16, 1925, at 460.
53. Qafisheh, supra note 43, at 31-32; see generally OLIVER DÖRR, NATIONALITY (2019).
54. Treaty of Peace (Treaty of Lausanne), July 24, 1923.
55. Qafisheh, supra note 43, at 32-33 (concluding based on the 1925 British census that Palestine
had 722,730 Arab native citizens and 7,143 Jewish citizens).
56. Id. at 33.
10 VIRGINIA JOURNAL OF INTERNATIONAL LAW [ONLINE

Persons who became naturalized citizens of Palestine—almost all of

whom were Jewish immigrants—swore an oath of loyalty to “the
Government of Palestine,” not to the Jewish Agency.57 Courts and other
legal institutions during the interwar period acknowledged the existence of
a distinct Palestinian nationality in recognition of the existence of Palestine
as a state.58 Court decisions during the Mandate held that Palestinians were
legally foreigners with respect to the other successor states to the Ottoman
Empire, such as Transjordan.59 Throughout the Mandate, despite
substantial Jewish immigration, the vast majority of Palestine’s nationals
were and remained Arab. Indeed, out of Palestine’s population of almost
2,000,000 in 1947, Jews were a little more than 600,000, only one-third of
whom had acquired Palestinian nationality.60
Palestine’s existence as a recognized international legal person was
undisputed in the interwar period: although Great Britain exercised
sovereignty, it was on behalf of Palestine in accordance with Article 12 of the
Mandate.61 On that basis, Palestine entered numerous multilateral and
bilateral international treaties.62 Great Britain also appeared on behalf of the
government of Palestine in 1924 to defend a suit brought by Greece in the
ICJ.63 Further, Palestine was recognized as a “foreign state” in an
international trade dispute that arose with respect to preferential tariff rates
that Great Britain considered giving Palestine.64 At the cusp of World War
II, Palestine had been recognized as a distinct state in international law,
albeit one awaiting recognition of its independence.

57. QUIGLEY, supra note 22, at 56. The Jewish Agency had been designated by the Mandatory,
pursuant to Article 4 of the Palestine Mandate, as a “public body” assisting the Mandatory in
developing the Jewish National Home. The Palestine Mandate, League of Nations Doc.
C.529.M.314.1922. VI (1922).
58. QUIGLEY, supra note 22, at 56-58.
59. Qafisheh, supra note 43, at 5-6 (Supreme Court of Palestine, in 1945 Jawdat Badawi Shaʿban
case, held that nationals of Palestine and nationals of Transjordan were foreigners to one another).
60. VICTOR KATTAN, FROM COEXISTENCE TO CONQUEST: INTERNATIONAL LAW AND THE
ORIGINS OF THE ARAB-ISRAELI CONFLICT, 1891-1949 141 (2009); Qafisheh, supra note 43, at 35-36
(concluding that 132,616 persons became naturalized Palestinian citizens during the Mandate period,
99% of whom were Jewish). To obtain Palestinian nationality, a person had to live in Palestine with
the intention of residing there permanently for a period of two out of the three years prior to
naturalization and speak either Hebrew or Arabic. Palestine Citizenship Order, supra note 52, at 462.
61. The Palestine Mandate, art. 12, League of Nations Doc. C.529.M.314.1922. VI (1922).
62. QUIGLEY, supra note 22, at 53-54.
63. Mavrommatis Palestine Concessions (Greece v. Gr. Brit.), Judgment, 1924 P.C.I.J. (ser. B)
No. 3 (Aug. 30).
64. QUIGLEY, supra note 22, at 61-64 (Other powers, such as the United States, deemed Palestine
to be a state for purposes of applying Great Britain’s most-favored-nation treaty obligations toward
other states in contrast to Great Britain’s colonial possessions, such as India).
2024] LAW BREAKING AND LAW MAKING 11

III. PUBLIC INTERNATIONAL LAW, THE BIRTH OF ISRAEL,

AND THE FATE OF PALESTINE

With the end of World War II, the League of Nations was officially
dissolved in April 194665 and the UN took its place.66 Part III of this Essay
begins with the status of Palestine under the new international legal order
of the UN Charter. It then discusses Zionism’s historical relationship with
international law as necessary background to understanding General
Assembly Resolution 181—the ill-fated plan for the partition of Palestine—
from the perspective of the UN Charter.67 The section concludes with a
discussion of the legal basis for the State of Israel and Palestine—and the
relations of Israel to its neighbors in the wake of the violence that engulfed
Palestine in the 1947-49 period—in view of Resolution 181.

A. Palestine and the Charter of the United Nations

The legal framework that Article 22 and the Palestine Mandate provided
for Palestine did not disappear with the dissolution of the League of
Nations. The UN Charter incorporated the terms of existing mandates and,
if anything, strengthened the standing of peoples under mandates and
colonial rule.68 Article 73 of the UN Charter affirmed the principle that, in
cases where states were administering territories that had not attained self-
government, “the interests of the inhabitants of these territories are
paramount, and [that such states] accept as a sacred trust the obligation to
promote to the utmost . . . the well-being of the inhabitants of these
territories.”69 Subparagraph b of Article 73 specifically singled out the duty
of the state administering such territories to take the aspirations of the
people subject to foreign rule into account, imposing duties “to develop self-
government, to take due account of the political aspirations of the peoples,
and to assist them in the progressive development of their free political
institutions[.]”70
The UN Charter contemplated replacing existing mandates with UN
trusteeships, but provided that such a trusteeship could not alter any of the
existing rights of the peoples concerned prior to concluding an agreement
modifying the terms of the arrangement.71 Under the plain terms of the UN

65. Predecessor: The League of Nations, UNITED NATIONS, https://www.un.org/en/about-

us/history-of-the-un/predecessor (last visited Mar. 17, 2024).
66. U.N. Charter. art. 110.
67. G.A. Res. 181 (II), (Nov. 29, 1947).
68. U.N. Charter.
69. Id. Art. 73 (emphasis added).
70. Id. Art. 73(b).
71. Id. Art. 77.
12 VIRGINIA JOURNAL OF INTERNATIONAL LAW [ONLINE

Charter, Palestine was either to obtain independence as a unitary state

composed of both Arabs and Jews who, from the perspective of
international law, would be non-racialized “Palestinians,” or, if the Mandate
was concluded before Palestine became independent, to have its affairs
transferred to a trusteeship under Chapter XII of the charter. If Palestine’s
independence had to be deferred, any successor trusteeship would have had
to make paramount the well-being of Palestinians, defined as those who
were the “inhabitants of these territories.”72 This promise of independence
was declared a “sacred trust of civilization” in the Covenant of the League
of Nations, and the UN Charter reiterated that promise.73
Public international law required Great Britain to prepare Palestine for
independence as a unitary state. As the Mandatory, Great Britain was
obliged to protect the interests of all Palestinians, regardless of their race or
religion, and promote institutions of self-government that would protect
those interests.74 The UN Charter reaffirmed those duties. Both Great
Britain and the UN failed in that task in the face of a political movement—
Zionism—that refused to accept as legitimate the constraints international
law placed on its ambitions, even as Zionists demanded that international
law grant legitimacy to their aspirations for a Jewish state. The next section
of this Essay explores how the Zionists were able to frustrate the ends of
the “sacred trust of civilization” that had promised independence to
Palestine, ironically through the very institutions of public international law
that were formally required to protect the independence of Palestine. It is
from this perspective that Resolution 181 is best understood: as a legal
trapdoor through which the larger edifice of legality governing Palestine was
torn down.

B. International Law and Zionism: Resolution 181 and the Charter of the United
Nations

Zionism, from the days of Theodor Herzl, pined for international

recognition.75 Indeed, so fundamental was international recognition in
Herzl’s mind for the success of the Zionist project that he opposed the

72. Id. Art. 73.

73. The ICJ reaffirmed that independence was the intended object of the “sacred trust of
civilization” in its 1971 decision regarding the legal status of South Africa’s continued presence in
Namibia. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J.
Rep. 16, ¶ 53 (June 21).
74. See, e.g., The Palestine Mandate, arts. 2, 5, 6 League of Nations Doc. C.529.M.314.1922. VI (1922).
75. MICHAEL STANISLAWSKI, ZIONISM: A VERY SHORT INTRODUCTION 27 (2016),
https://academic.oup.com/book/628 (last visited Jan. 15, 2024) (stating that Herzl’s most important
political goal toward the end of his life was to obtain a “‘charter’—a diplomatic instrument granting
the Jews the right to a homeland in Palestine”).
2024] LAW BREAKING AND LAW MAKING 13

establishment of the Jewish National Fund until such time as the Zionists
could obtain international recognition of their plans to settle Palestine.76
While Herzl failed in obtaining such recognition in his lifetime, Zionists
succeeded in enlisting Great Britain to their cause in 1917 when the
country’s government adopted the Balfour Declaration promising to assist
the Zionists in their aim to establish a Jewish national home in Palestine.77
Although the Balfour Declaration lacked any normative status in
international law and failed to endorse explicitly a “Jewish state,” Zionists
took it as granting them what they had long sought: international, or at least
great power, support for the establishment of a Jewish state in Palestine.78
However, once Zionist leader Chaim Weizmann arrived in Palestine in
March 1918, only a few months after Palestine came under the military
occupation of Great Britain, the Zionists had little patience for observing
the restraints of international law. Palestine, from the perspective of public
international law, had remained part of the sovereign territory of the
Ottoman Empire, or its successor state, the Republic of Turkey,79 until the
effective date of the Palestine Mandate: September 29, 1923.80 Accordingly,
for the six years between 1917 and 1923, Great Britain only had the authority
of an occupant over Palestine, not of a sovereign. Pursuant to Article 43 of
the Hague Conventions of 1899,81 which both the Ottoman Empire and
Great Britain had ratified prior to World War I,82 Great Britain could only
exercise its power to the extent necessary “for . . . the maintenance of order
and safety, and the proper administration of the country,”83 a duty that the
British military in Palestine duly understood and recognized as binding.84
Weizmann, however, believing that the Balfour Declaration had placed
Palestine under the control of the Zionists,85 chafed at these restrictions and
lobbied the British to ignore them and immediately change local laws to

76. Walter Lehn, The Jewish National Fund, 3 J. PALESTINE STUDS. 74, 76, 79 (1974).
77. Letter from Arthur James Balfour to Lord Rothschild (Nov. 2, 1917).
78. JOHN B. QUIGLEY, THE CASE FOR PALESTINE: AN INTERNATIONAL LAW PERSPECTIVE 10
(2nd ed. 2005).
79. KATTAN, supra note 60, at 81-82.
80. See Qafisheh, supra note 43, at 16.
81. Convention (II) with Respect to the Laws and Customs of War on Land and its annex:
Regulations concerning the Laws and Customs of War on Land. Art. 43, The Hague, 29 July 1899,
https://ihl-databases.icrc.org/en/ihl-treaties/hague-conv-ii-1899 (last visited Mar 17, 2024).
82. KATTAN, supra note 60, at 81.
83. Id. at 82 (quoting Professor Lassa Oppenheim, a German professor of international law and
one of the authors of Great Britain’s MANUAL OF MILITARY LAW 288 (1914)).
84. Id. at 82 (quoting message of General Edmund Allenby, commander of British military forces
in Palestine, October 23, 1918, to the War Office).
85. D. K. Fieldhouse, Palestine: The British Mandate, 1918–1948, in WESTERN IMPERIALISM IN THE
MIDDLE EAST 1914-1958 151, 153 (D. K. Fieldhouse ed., 2008).
14 VIRGINIA JOURNAL OF INTERNATIONAL LAW [ONLINE

facilitate the Zionist project.86 A British court of inquiry, in the wake of what
was an unprecedented Arab-Jewish communal riot in 1920, laid blame for
the violence squarely on the Zionists for, among other things, their
“indiscretion and aggression” and “attempts to coerce the military
administration in Palestine to bend the rules of international humanitarian
law, in particular the principle enshrined in Article 43 of the 1899 Hague
Regulations” that required the occupying power to respect the status quo.87
But as would occur with increasing frequency in the Zionist-Palestinian
conflict, Zionist lobbying succeeded in persuading Great Britain to ignore
the limitations of Article 43.88
Zionist attitudes toward partition generally, and Resolution 181 in
particular, were no different than their attitudes toward the terms of the
Palestine Mandate: accept whatever advantages it granted the Zionist
movement, but reject any limitations imposed, create “facts on the ground,”
and compel the international community to acquiesce to those facts. When
the Peel Commission, established by Great Britain to investigate the causes
of a 1936 Palestinian Arab rebellion,89 cautiously proposed partition in 1937,
Israel’s founding father and first prime minister David Ben Gurion saw it is
a first step toward the “conquest” of Palestine in its entirety.90 He also seized
on the Peel Commission’s cautious suggestion of a consensual population
transfer as a last resort, transforming it into a policy of expulsion of non-
Jews.91 Despite the doubt surrounding the bindingness of Resolution 181
under international law,92 Ben Gurion made it plain to the UN Special
Committee on Palestine (UNSCOP) that he would view a UN-endorsed
partition of Palestine to be a “decision” which, if rejected by the Arabs,

86. 3 CHAIM WEIZMANN, THE LETTERS AND PAPERS OF CHAIM WEIZMANN 200, 203-05
(Meyer W. Weisgal ed. 1968) (describing his frustration with the military administration’s commitment
to upholding the status quo in Palestine in a letter to Lord Balfour in which he urges Lord Balfour to
take affirmative steps immediately to assist in the implementation of the Zionist project); KATTAN,
supra note 60, at 84.
87. KATTAN, supra note 60, at 84.
88. Id. at 83.
89. Laila Parsons, The Peel Commission, 1936-1937: Sowing the Seeds of the Partition, INTERACTIVE
ENCYC. PALESTINE QUESTION, https://www.palquest.org/en/highlight/16013/peel-commission-
1936%E2%80%931937 (last visited June 10, 2024).
90. TOM SEGEV, A STATE AT ANY COST: THE LIFE OF DAVID BEN-GURION 264 (Haim
Watzman trans. 2019).
91. After reading the Peel Commission report, Ben Gurion wrote in his diary, “‘compulsory
transfer,’ underlining the words in his diary.” Id. at 264-65.
92. For objections to the legality of Resolution 181, see generally Ardi Imseis, The United Nations
Plan of Partition for Palestine Revisited: On the Origins of Palestine’s International Legal Subalternity, 57 STAN. J.
INT’L L. 1 (2021); KATTAN, supra note 60, at 155 (quoting the noted American scholar of international
law and ICJ judge, Phillip Jessup, as describing Resolution 181 as merely a “recommendation”);
CRAWFORD, CREATION OF STATES, supra note 25, at 431 (concluding Resolution 181 was only a
“recommendation”).
2024] LAW BREAKING AND LAW MAKING 15

would authorize the Yishuv to use military force against them.93 Arab
political leaders had proposed, instead of partition, a unitary democratic
state with a written constitution that would have granted the Jewish
community in Palestine constitutionally entrenched minority rights.94
When the Arabs rejected the proposed partition, in no small part
because of its grossly inequitable and possibly unlawful terms,95 rather than
using Resolution 181 as a basis for negotiations, the Yishuv launched a war
of conquest, just as Ben Gurion had told the UNSCOP it would.96 Ben
Gurion implemented his policy of “compulsory transfer” of Arabs from the
territory that the Yishuv’s military conquered.97 When the United States
came to see that partition was impracticable, it moved to adopt a trusteeship
for Palestine that would have preserved Palestine as a unitary state with a
liberal constitution and guarantee of minority rights,98 a proposal that
mirrored Arab proposals for Palestine.99 By that time, however, the Yishuv
was well on its way to conquering most of Palestine and ignored U.S. calls
for a trusteeship, having established a de facto partition by force of arms.100

C. Conclusion

Israel would later claim that Resolution 181 was binding,101 but neither
the Yishuv nor Israel after its independence respected either the proposed
territorial limits of the Partition Plan or its substantive requirements,
including, for example, that the Jewish state adopt a written constitution that

93. IMSEIS, supra note 2, at 104.

94. Albert Hourani, The Case against a Jewish State in Palestine: Albert Hourani’s Statement to the Anglo-
American Committee of Enquiry of 1946, 35 J. PALESTINE STUDS. 80-81, 87 (2005); GEORGE ANTONIUS,
THE ARAB AWAKENING: THE STORY OF THE ARAB NATIONAL MOVEMENT 410-11 (2010);
KATTAN, supra note 60, at 149 (“Egypt, Iraq, Lebanon, Saudi Arabia, Syria and the Yemen declared
themselves in favour of an independent unitary state embracing all of Palestine, in which the rights of
the minority would be scrupulously safeguarded.”).
95. KATTAN, supra note 60, at 151-52 (the plan proposed to give almost sixty percent of Palestine,
consisting of its most desirable and productive lands, to the Jewish minority at a time the Jewish
population of Palestine was only one third of the population and owned barely ten percent of the land);
Id. at 156-66 (noting that the plan violated the principles of majority rule, did not respect the
distribution of the Arab and Jewish populations in Palestine, and did not propose to obtain the consent
of the people of Palestine); QUIGLEY, supra note 22, at 91 (quoting the then British foreign secretary
as saying the partition plan was so manifestly unjust toward Palestine’s Arabs that his government
could not reconcile it with ‘conscience.’).
96. See generally KATTAN, supra note 60, Chapter 7.
97. Id. at 190-91 (Ben Gurion complained in a December 1947 speech that Resolution 181 left
too many non-Jews in the territory of the Jewish state, which needed to have a population of at least
eighty percent Jews for it to be stable and predicting in another speech in April 1948, just as the
Yishuv’s offensive was beginning, that great demographic changes were to take place in Palestine.).
98. Id. at 166-68.
99. Id. at 149.
100. Id. at 168.
101. Id. at 155.
16 VIRGINIA JOURNAL OF INTERNATIONAL LAW [ONLINE

fully protected minority rights.102 Its indifference to minority rights was

most clearly evidenced in its expulsion of Arabs from territories that fell
under its control,103 whether or not Resolution 181 had allocated that
territory to the Jewish state or the proposed Arab state,104 including
territories that it conquered in the weeks prior to the declaration of Israeli
statehood and the intervention of military forces from neighboring Arab
states.105
For the Zionists, international law was useful insofar as it recognized
the legitimacy of their claims, but it was not the source of their claims, nor
did it limit them. Rather, their substantive claims derived from an asserted
natural right of the Jewish people to dominion in historic Palestine, Eretz
Israel.106 Accordingly, whenever they had the effective power to ignore
international law, they did. By expelling most of Palestine’s Arabs from the
territories that it conquered and confining them to just twenty-two percent
of historical Palestine in the disconnected territories of the Gaza Strip and
the West Bank, the Zionists, through military force, attempted to destroy
the international legal personhood of Palestine and were the proximate
cause for the failure of Palestine to become an independent state in
accordance with the international community’s promise as set out in the
League of Nations Covenant and UN Charter.

IV. THE LEGAL BASIS OF ISRAELI STATEHOOD

Israel’s Declaration of Independence appealed to the Balfour

Declaration, the Palestine Mandate, Resolution 181, and the “natural right”
of the Jewish people to Palestine to justify the action taken on May 14,
1948.107 In the Zionists’ recitation of these facts, however, these documents
were taken as recognition of a preexisting right that the Jewish people have to
Palestine, independent of these instruments. These instruments, from the

102. See G.A. Res. 181 (II), at I.B. (Nov. 29, 1947).
103. See id. at I.C., Chapter 2.
104. KATTAN, supra note 60, at 191-202 (describing military tactics used by the Yishuv’s militias
and later Israel to expel Palestine’s Arabs from their cities, towns, and villages, both before and after
the intervention of the Arab states in May 1948).
105. Although Syria and Lebanon formally declared war against Israel, no Lebanese military units
ever crossed the international frontier between Lebanon and Mandatory Palestine, and while Syria sent
two battalions into Palestine, they retreated to Syria five days after entering Palestine. Units of the Iraqi
military fought under the command of the Transjordanian forces. As a practical matter, therefore, only
Egyptian and Transjordanian forces took part in fighting with Israel. Id. at 179.
106. Declaration of Israel’s Independence, 1948, PBS, https://www.pbs.org/wgbh/
americanexperience/features/truman-israel/ (last visited Jan. 3, 2024) (Jewish National Council
asserting its authority to act based on both the UN’s implicit recognition of the Jewish State by virtue
of the Partition Plan and “by virtue of the natural and historic right of the Jewish [people]”).
107. Id.
2024] LAW BREAKING AND LAW MAKING 17

Zionist perspective, are not constitutive of Israel’s legitimacy. They merely

confirm it.
The legal immateriality of the substantive terms of these instruments
from the Zionist’s perspective is further evidenced by their omissions from
the Israeli Declaration of Independence. Unlike the United States’
Declaration of Independence, which set out in detail the reasons for which
the Americans wished to separate from Great Britain,108 the Zionists
provided no reasons for separating from the government of Palestine.
Rather, they simply did not recognize Palestine’s existence, now or then, as
a legal person. Instead, they read Resolution 181 as recognizing their
unalienable right to a Jewish nation state in Palestine—understood as an
ungoverned geographic space, not as the internationally recognized legal
person it was—and chillingly directing them “to take such steps as may be
necessary on their part to put the plan into effect.”109
It is commonly assumed that Israel’s legitimacy is based on Resolution
181 and that, but for the Arabs’ rejection of that resolution, peace would
have been obtained in Palestine.110 When it is pointed out that Israel did not
confine itself to the territorial limits of Resolution 181, some of Israel’s
defenders invented the dubious legal category of “defensive conquest” to
justify the Yishuv’s (and later Israel’s) incursions into, and annexation of,
territory allocated to the Arab state under Resolution 181.111 But as
Professor Victor Kattan puts it, Israel’s “actions speak louder than [its]
words” with respect to determining the (non)authoritativeness of
Resolution 181 for Israel’s existence as a state.112 Indeed, other lawyers
openly sympathetic to Israel, such as Julius Stone, have jettisoned entirely
reliance on Resolution 181 as a basis for Israel’s statehood and instead point
to its success on the battlefield as the basis for its statehood, claiming
tendentiously that “most other states in the world” have similar roots for
their sovereignty.113
While Stone’s statement has the virtue of greater honesty with respect
to the events of 1947-49 and Resolution 181’s lack of normative force from
the Israeli perspective, it is patently untrue that most states owe their
existence to military success, unless the only real “states” are the imperial
powers of the global north. Most post-colonial states, including the post-

108. See generally THE DECLARATION OF INDEPENDENCE (U.S. 1776).

109. Declaration of Israel’s Independence, 1948, supra note 106.
110. Feldman, supra note 24 (“It was brought into existence by a 1947 United Nations
Resolution that would have created two states side by side, one Jewish and one Palestinian.”).
111. KATTAN, supra note 60, at 174-75. Whether the Yishuv or Israel was acting in self-defense,
as that term is understood in international law, is highly dubious, but space constraints do not allow a
full discussion of the problematic nature of Israel’s claim of self-defense in 1948.
112. Id. at 180.
113. STONE, supra note 20, at 61.
18 VIRGINIA JOURNAL OF INTERNATIONAL LAW [ONLINE

Ottoman states, came into existence by virtue of the designs of imperial

powers, who often established their basic institutions and, crucially, drew
their often-arbitrary territorial boundaries.114 Nevertheless, the post-colonial
states, in reliance on the uti possidetis doctrine,115 and to vindicate the Article
2 principles of the UN Charter,116 accepted those boundaries as legitimate
unless the state parties freely consented to change them.117
Since even ardent Zionists like Stone have rejected Resolution 181 as
plausible grounds for Israel’s statehood,118 we must turn to other possible
sources. When Stone asserts that it was Israel’s military success that grounds
Israeli statehood, he could be asserting two different claims. The first is that
Israel came into existence by virtue of its successful conquest of territory. The
second is that Israel came into existence by virtue of a successful secession
from Palestine. In both cases, the subsequent recognition of Israel’s military
success, whether characterized as conquest or secession—first by individual
states in the world community, and then by Israel’s admission into the UN
in 1949—gave Israel de jure recognition as a state.
Each theory has grave problems. There is evidence that Zionists
believed that they obtained sovereign rights by virtue of conquest. Ben
Gurion explicitly used the term “conquest” in describing Zionist ambitions
to take control of Palestine in the name of the Jewish people,119 and
compared himself to the biblical figure of Joshua and his conquest of
Canaan.120 Likewise, the Jewish National Fund expressly used the term
“legal conquest” to describe the basis for Israel’s claim to sovereign right
over the territory it controlled.121 The demographic composition of the
Yishuv lends further support to the theory of conquest: of the
approximately 600,000 Jews in Palestine in 1947, only a third were
Palestinian nationals. The other two-thirds were therefore legally
foreigners—i.e., nationals of states other than Palestine or stateless

114. See, e.g., Giuseppe Nesi, Uti Possidetis Doctrine ¶¶ 3-4 (2018) (The practice of accepting colonial
borders as determining territorial settlements of post-colonial states originated in the newly
independent states of Latin America in the 19th century and was later adopted by post-colonial African
states in the 20th century).
115. Uti possidetis doctrine originated in Roman law and functioned to prohibit third parties from
interfering in the possessory rights of the possessor of immovable property until such time as a court
could conclusively adjudicate rights to the property. It subsequently evolved into a doctrine of
international law whereby boundary settlements were deemed dispositive unless both parties agreed to
change them. Id. at ¶¶ 1-2.
116. U.N. Charter., art. 2.
117. Nesi, supra note 114, at ¶ 7.
118. STONE, supra note 20, at 61.
119. SEGEV, supra note 90, at 264.
120. Raef Zreik, Zionism and Political Theology, 24 POL. THEOLOGY 687, 697 (2023).
121. Comm. on the Exercise of the Inalienable Rts. of the Palestinian People, Preliminary Note
on the Right of Return of the Palestinian People, at § 6, U.N. Doc. ST/SG/SER.F/2 (“Legal conquest
of territory is a powerful factor in determining the frontiers and the sovereignty of a state.”).
2024] LAW BREAKING AND LAW MAKING 19

refugees—and therefore could not plausibly claim to be asserting any right

of self-determination against the government of Palestine.122 If the Yishuv,
and later Israel, rested its claim to sovereignty based on the success of its
arms, its fighting units were composed largely of persons who were legally
foreigners, a fact which greatly strengthens the conclusion that Israel owes
its existence to conquest.
However, international law had already by 1947 rejected the notion of
“legal conquest,” first with the Kellogg-Briand Pact of 1928123 and then with
the UN Charter’s rejection of the use of force to settle international
disputes.124 Even if one were to claim that these agreements are positive
international law and not customary international law, and that therefore,
neither the Yishuv nor Israel after it declared itself a state in May 1948 were
bound by the rule prohibiting conquest, Art. 2(6) of the UN Charter
compelled the UN to “ensure that states which are not Members of the
United Nations act in accordance with these Principles so far as may be
necessary for the maintenance of international peace and security.”125 The
only conclusion that can be drawn from the conquest theory, therefore, is
that Israel could have obtained the status of a de facto state by virtue of
conquest, but not that of a de jure state. Indeed, when U.S. president Harry
Truman initially recognized Israel in 1948, he did so on a de facto basis, and
on the expectation that Israel would respect the boundaries of the UN
Partition Plan.126
The secession theory also suffers grave difficulties. In addition to the
fact that only a minority of the Yishuv’s population were nationals of
Palestine, secession is, except for colonized populations or populations
under foreign domination, generally considered illegal, or at a minimum,
extremely disfavored, under post-World War II principles of international
law.127 Still, some commentators have recognized a right to secede in
circumstances where the government of a state does not represent the whole

122. KATTAN, supra note 60, at 141; Victor Kattan, The Nationality of Denationalized Palestinians, 74
NORDIC J. INT’L L. 67, 70 (2005); Qafisheh, supra note 43, at 35-36 (concluding that only 132,616
persons became naturalized citizens of Palestine pursuant to the Palestine Citizenship Order of 1925,
of whom 99% were Jewish).
123. General Treaty for Renunciation of War as an Instrument of National Policy, Aug. 27, 1928,
46 Stat. 2343, 94 L.N.T.S. 57 (entered into force Jul. 24, 1929)
124. U.N. Charter, art. 2(4).
125. Id. art. 2(6).
126. KATTAN, supra note 60, at 233. Ironically, it was the Soviet Union that first recognized Israel
as a de jure state. Id. at 234.
127. Alonso Gurmendi, Israel Does Not Have a Sovereign Claim to the West Bank: A Response to IJL’s
Legal Opinion, OPINIO JURIS (Feb. 22, 2024), https://opiniojuris.org/2024/02/22/israel-does-not-
have-a-sovereign-claim-to-the-west-bank-a-response-to-ijls-legal-opinion/ (noting that unilateral
secession is illegal under international law except in the case of a people under colonial or foreign
domination); CRAWFORD, CREATION OF STATES, supra note 25, at 389-90 (noting that unilateral
secession, even if not illegal under international law, is highly disfavored).
20 VIRGINIA JOURNAL OF INTERNATIONAL LAW [ONLINE

of the people such that “a people is blocked from the meaningful exercise
of its right to self-determination internally.”128 Given that the Palestinian
Arab majority was willing to grant Palestinian Jews full rights of internal self-
determination, including minority rights that would have respected Jewish
freedom of religion, the Hebrew language, and proportional representation
in the administration of Palestine’s government,129 it would be very difficult
to argue that the Yishuv had a de jure right to secede from Palestine in the
name of Palestinian Jewish self-determination.130
Israel’s success on the battlefield, whether viewed as conquest or a
successful secession, permitted Israel to satisfy the effectiveness
requirements for statehood set out in the Montevideo factors, but did not
resolve the questions of the legitimacy of the means by which it came into
existence.131 The Supreme Court of Canada, for example, has noted that
while an illegal act may obtain some ex post legal recognition in the future,
the prospective recognition of some of the legal effects of the illegal conduct
do not, retroactively, undo the illegality of the original conduct.132 Because
neither conquest nor unilateral secession is a de jure means for becoming a
state, Israel’s statehood, and the territory to which it exercises sovereign
right, depended largely on ex post recognition of its statehood by other
states in the international community.133 As Kattan has observed,
acquiescence to Israel’s illegal conduct is far from universal, nor can it be
taken for granted that subsequent Palestinian acquiescence to partition on
the basis of the 1949 Armistice Lines as a basis for peace is assured.134
Accordingly, Israel’s best argument for its de jure statehood is its
admission to the UN. On careful inspection, however, Israel’s admission to
the UN was itself based on the assumption that Israel would, in good faith,
comply with not only Resolution 181, but also Resolution 194(III), which
provided for the return of Palestine’s Arabs to the places from which they

128. Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, ¶ 134.

129. Hourani, supra note 94, at 87 (under the proposal of Palestine’s Arabs in 1939, Jews would
have been guaranteed “full civil and political rights, control of their own communal affairs, municipal
autonomy in districts in which they are mainly concentrated, the use of Hebrew as an additional official
language in those districts, and an adequate share in the administration.”).
130. Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, ¶ 126 (“the right to self-
determination of a people is normally fulfilled through internal self-determination – a people’s pursuit
of its political, economic, social and cultural development within the framework of an existing state. A
right to external self-determination (which in this case potentially takes the form of the assertion of a
right to unilateral secession) arises in only the most extreme of cases”).
131. CRAWFORD, STATE, supra note 14, at ¶¶ 13-14.
132. Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, ¶ 146 (“It is, however, quite another
matter to suggest that a subsequent condonation of an initially illegal act retroactively creates a legal
right to engage in the act in the first place. The broader contention is not supported by the international
principle of effectivity or otherwise and must be rejected.”).
133. KATTAN, supra note 60, at 244-45.
134. Id. at 245-47.
2024] LAW BREAKING AND LAW MAKING 21

had fled or been expelled.135 Indeed, the resolution admitting Israel as a

member of the UN specifically mentioned both resolutions and that Israel
“unreservedly accepts the obligations of the United Nations Charter and
undertakes to honour them.”136 During debates over admission of Israel to
the UN,137 Israel acknowledged that the issues set forth in those
resolutions—its frontiers, its internal constitution, and the rights of the
Palestine’s Arab refugees—were not an internal matter for Israel to
determine based on its sovereignty.138
Israel’s recognition, therefore, was conditioned on its good faith attempt
to comply with those resolutions. The subsequent steps Israel took—its
1950 law confiscating Palestinian refugees’ property, even of those
Palestinian refugees who managed to remain in Israel and obtain Israeli
citizenship (the so-called “present absentees”);139 transferring confiscated
properties to the Jewish National Fund to administer them for the exclusive
benefit of Jews;140 and denationalizing the Arabs it had expelled141—were all
in violation of the spirit, if not the letter, of its representations to the UN
when it gained admission to that body.

V. ISRAEL, PALESTINE, AND THE FOUNDATIONS OF

INTERNATIONAL LAW: LAW MAKING BY LAW BREAKING?

The UN Charter represents an explicit attempt to bring the conduct of

sovereign states within the rule of law by limiting the sovereignty of states
to what international law authorizes.142 What it means to subject sovereign
states to the rule of law, however, is not obvious. The great German legal
theorist Hans Kelsen identified and attempted to answer the apparent
paradox of international law by reconciling the idea of sovereignty with

135. G.A. Res. 194(III), Art. 11 (Dec. 11, 1948).

136. U.N. GAOR, 3rd Sess., 207th plen. mtg. at 18, U.N. Doc. A/PV.219 (May 11, 1949).
137. Comm. on the Exercise of the Inalienable Rts. of the Palestinian People, Preliminary Note
on the Right of Return of the Palestinian People, at § V., U.N. Doc. ST/SG/SER.F/2 (“The
representative of Israel had given an assurance that, if that country were admitted as a Member, such
matters as the settlement of frontiers . . . and the Arab refugee problem would not be regarded as
within its domestic Jurisdiction and protected from intervention under the terms of Article 2, paragraph
7 [of the Charter]. He noted that those matters were being considered by the Conciliation Commission
and that the admission of Israel would not change that situation.”).
138. U.N. Charter art. 2(7) (“Nothing contained in the present Charter shall authorize the United
Nations to intervene in matters which are essentially within the domestic jurisdiction of any state”).
139. Absentees’ Property Law, 5710-1950, SH 37 (1950) 86.
140. See generally Sabri Jiryis, The Legal Structure for the Expropriation and Absorption of Arab Lands in
Israel, 2 J. PALESTINE STUDS. 82 (1973).
141. Nationality Law, 5712-1952, SH 95 (1952) 146.
142. U.N. Charter art. 1(1) (declaring the organization’s purpose to be “to maintain international
peace and security . . . in conformity with the principles of justice and international law”).
22 VIRGINIA JOURNAL OF INTERNATIONAL LAW [ONLINE

legality.143 For Kelsen, the answer lies in properly limiting the domain of
sovereignty to a state’s domestic legal order.144 Accordingly, a state is
sovereign when its domestic law is not subject to the law of any other state
and so is autonomous with respect to its internal law.145 Its status as a subject
of international law means that it has rights and duties with respect to how
it interacts with other sovereigns, who are understood as exercising
autonomy equally with respect to their own domestic legal orders.146
Kelsen proposed two arguments for reconciling the sovereignty of the
national legal order with the sovereignty of international law: the first
anchors the bindingness of international law in the national law of the state
recognizing international law (“the primacy of national law” view); the
second views international law as authorizing states to exercise sovereignty
over the territories in which they are in effective control (“the primacy of
international law” view).147 Both accounts allow for a conception of
sovereignty that is constituted by the rules of both national and international
law, and crucially, exclude a conception of sovereignty based on power that
floats above legal rules, whatever their source.148
There is an important difference in the two views, however, according
to Kelsen. Under “the primacy of national law” view, the highest form of
law is national law, with international law merely comprising a part of the
internal law of each state.149 As a result, the “primacy of national law” view,
although logically coherent, produces a subjectivist, solipsistic conception
of international law.150 Under the “primacy of international law” view, by
contrast, national law is viewed as a partial system of law that is constituted
through the authority of the superior norms of international law.151 As a
result, the “primacy of international law” view takes on an objective

143. See, e.g., Hans Kelsen, The Principle of Sovereign Equality of States as a Basis For International
Organization, 53 YALE L.J. 207 (1944) [hereinafter Kelsen, Principle of Sovereign Equality].
144. Id. at 208.
145. Id. (“A State’s legal authority may be said to be ‘supreme’ insofar as it is not subjected to the
legal authority of any other State; and the State is then sovereign when it is subjected only to
international law, not to the national law of any other State.”).
146. Id.
147. Kelsen calls the first account of the relationship of national law to international law using
the label “the primacy of national law,” and the second account using the label “the primacy of
international law.” Hans Kelsen, Sovereignty and International Law, 48 GEO. L.J. 627, 629 (1960)
[hereinafter Kelsen, Sovereignty].
148. Kelsen, Principle of Sovereign Equality, supra note 143, at 208 (criticizing power-based
conceptions of sovereignty as “metaphysical” and not “scientific” and based on a confusion between
theology and political science); Kelsen, Sovereignty, supra note 147, at 637 (arguing that on both views of
the relationship of national law to international law, state sovereignty—in the sense of its authority to
act —is limited by international law).
149. Kelsen, Sovereignty, supra note 147, at 632-33.
150. Id. at 638.
151. Id. at 631-32 (international law authorizes particular groups of individuals to establish
national legal orders through the principle of effectiveness).
2024] LAW BREAKING AND LAW MAKING 23

character in which international law begins from the premise of the

existence of a plurality of national sovereigns,152 while the primacy of national
law view recognizes international law only through the subjective will of a
particular national sovereignty to constrain itself through international law.153
While Kelsen notes that the primacy of international law view is prominently
associated with pacifism, and the primacy of national law view is
prominently associated with imperialism, he denies that there is any
substantive difference between the two views in this regard: insofar as a
national legal system “recognizes” international law, it has effectively
“subjected itself” to its norms by making international law part of its internal
law, and thereby has bound itself to act in accordance with international
law’s positive rules.154
For Kelsen, however, the content of international law, like all law, is
determined not by reference to an external source of value existing outside
of the law, such as morality, but by whatever the applicable positive system
of law identifies as binding. Kelsen called his approach “the pure theory of
law” because it sought to make the study of the law an objective science
distinct from other subjects, such as politics, ethics, or sociology.155 As a
liberal democrat who fled Nazi Germany, Kelsen was committed to
constraining the arbitrary power of the state.156 For his critics, however, the
pure theory of law failed in that aim because of its entirely formal conception
of law.157 Carl Schmitt, Kelsen’s conservative and Nazi-sympathizing rival,
saw in this feature of legal positivism an opportunity for authoritarian
takeover of the liberal state through capture of the state’s law-making
apparatus.158 By contrast, Herman Heller, Kelsen’s social democratic critic
on the left, feared that Kelsen’s content-less legal positivism would sap the
capacity of democratic forces to defend the state against authoritarian
capture.159
While the debates between and among Kelsen, Schmitt, and Heller
centered largely around the crisis of democracy in the Weimar Republic,
those debates are relevant to understanding both the relationship of
sovereignty to international law and the relationship of politics to

152. Id. at 638.

153. Id. at 634.
154. Id. at 637.
155. Hans Kelsen, The Pure Theory of Law and Analytical Jurisprudence, 55 HARV. L. REV. 44, 44
(1941) (“As a theory, its sole purpose is to know its subject. It answers the question of what the law is,
not what it ought to be. The latter question is one of politics, while the pure theory of law is science.”).
156. HERMANN HELLER, SOVEREIGNTY: A CONTRIBUTION TO THE THEORY OF PUBLIC AND
INTERNATIONAL LAW 68 (David Dyzenhaus ed., Belinda Cooper trans., 2019).
157. DYZENHAUS, supra note 19, at 173.
158. Id. at 73-76 (explaining that Schmitt’s reading of the Weimar constitution’s provision on
presidential powers in an emergency invited the restoration of dictatorship).
159. Id. at 163, 173-74.
24 VIRGINIA JOURNAL OF INTERNATIONAL LAW [ONLINE

international law. The spirit of the UN Charter, as well as the system of

international law it enshrines as the touchstone of international legality, is
quintessentially Kelsenian and aims to tame state sovereignty through law.160
If the aim of international law is to restrain states from the arbitrary exercise
of power, however, can it succeed in that task if it is purely formal? If the
indeterminacy of legal norms can precipitate an authoritarian crisis in highly
developed domestic legal orders, such as that of Weimar Germany, the
indeterminacy of international law161 would render it even more susceptible
to exploitation by actors that reject the normative project of international
law as a restraint on arbitrary state power in the international arena.162
In the case of Zionism’s struggle against the Palestinians, the Jewish
Agency and then Israel have consistently relied on the principle of
effectiveness to clothe, ex post, illegal actions with legality by relying on the
global north—Great Britain in the interwar period and now the United
States—to recognize, or at least acquiesce to, its actions. Despite Israel’s
statehood arising out of either an illegal act of conquest or an illegal
secession, Israel successfully obtained the recognition of the former colonial
powers, thereby ratifying its illegal conduct.163
Israeli exceptionalism is so normalized among some western
commentators that even when it is recognized, it can be quickly forgotten.164
This normalcy should not be surprising. The porousness of international
law, as the debates among Heller, Kelsen, and Schmitt show, means that
politics and power must always step in to fill the vacuum. But Palestine’s
continued salience indicates that the principle of effectiveness has not been
sufficient to grant Israel the normalized legal condition it seeks, even with
the nearly unconditional support it has received from the global north.
Although Heller mocked Kelsen’s notion of international law
“authorizing” national legal orders as a position thoroughly detached from

160. HELLER, supra note 156, at 22-23 (describing the aim of international lawyers in the post-
World War I era to create an international community based in law).
161. Statute of the International Court Of Justice art. 36.
162. Gurmendi, supra note 127 (describing Israel’s claims to sovereignty over the West Bank as
based on a bygone era when international law was built “on racial hierarchies and colonial policies, not
on self-determination and human rights.”).
163. Id. (“In theory, therefore, post-independence Israel should have been, at best, in the same
situation as modern-day Somaliland (or at worst, Rhodesia). Instead, it was promptly recognised by
most of the international community.”).
164. For example, prominent international jurist James Crawford acknowledged Israel’s
exceptionalism when he concluded that Israel was established by unilateral seccession, but later forgot
his own conclusion when he categorically stated that the UN has refused to admit any state that came
into existence through unilateral secession. CRAWFORD, CREATION OF STATES, supra note 25, at 390,
433; Gurmendi, supra note 127.
2024] LAW BREAKING AND LAW MAKING 25

reality,165 Heller’s social conception of law as an “intersubjective, normative

binding of wills”166 offers an explanation for how the Kelsenian institutions
of the UN, which are commonly thought to be toothless,167 have allowed
Palestine to survive, despite the overwhelming disparity in power between
it and the Zionist movement.168
Both Schmitt and Heller agree that Kelsen’s attempt to reduce
sovereignty to law by removing power is deeply mistaken.169 Further, they
agree that it is a feature of sovereignty that it can, at times, act against positive
law.170 Schmitt, however, promotes a personalized theory of sovereignty
embodied in the sovereign decision of the executive-cum-dictator who is
entitled to suspend the normal operation of the law unbounded by any legal
principles other than preservation of the state.171 Heller, by contrast,
identifies the real sovereign as the coalition of individuals whose wills are
united by adherence to a set of basic normative principles that orders their
political and moral life172 and who are politically free to exercise their power
either to vindicate fundamental legal principles or violate them.173 According
to Heller, these basic normative principles are not only logically, but morally
and politically, superior to the positive legal rules.174 While a Schmittian
sovereign is unconstrained when exercising the sovereign prerogative of the
exception by any objective morality, the Hellerian sovereign acts against
positive law in furtherance of the higher-order normative principles
immanent in the legal order itself. This is what David Dyzenhaus has called
Heller’s “politics of a commitment to legality.”175

165. HELLER, supra note 156, at 145 (observing in 1927, prior to the Kellogg-Briand Pact, that
“[i]nternational law offers every international law person the opportunity to rid itself of all its legal
obligations towards other international law persons by completely eradicating the other persons.”).
166. Id. at 143.
167. Sandeep Gopalan & Rosalyn Fuller, Enforcing International Law: States, IOs, and Courts as
Shaming Reference Groups, 39 BROOK. J. INT’L L. 73, 73 (2014) (responding to the claim that international
law, including the United Nations, is “ineffective”).
168. Dyzenhaus has noted that Heller’s skepticism about international law during the interwar
period was a result of the absence of international institutions that could make effective decisions in
accordance with international legal principles, not a dogmatic rejection, based on the principle of state
sovereignty, of the possibility that effective international institutions could, at some time in the future,
come into existence. Id. at 53-54.
169. DYZENHAUS, supra note 19, at 162; HELLER, supra note 156, at 7-9.
170. DYZENHAUS, supra note 19, at 42-43 (describing Schmitt’s view that sovereignty entails the
right to suspend the ordinary legal order); HELLER, supra note 156, at 19-20 (quoting Heller for the
proposition that sometimes the sovereign must act “against the law”).
171. DYZENHAUS, supra note 19, at 173-74.
172. Id. at 180-82.
173. See, e.g., HELLER, supra note 156, at 185 (“[A]s long as human acts of will constitute the state,
they will with sovereign force constantly break legal rules, whether they thereby violate fundamental
legal principles or lead them to victory.”).
174. For Kelsen, by contrast, all legal norms were equally valid, regardless of the position they
occupied in the logical hierarchy of legal rules. DYZENHAUS, supra note 19, at 162, 164-67.
175. HELLER, supra note 156, at 54.
26 VIRGINIA JOURNAL OF INTERNATIONAL LAW [ONLINE

These different conceptions of the relationship of power to law offer a

useful perspective for understanding how different conceptions of
international law can produce different theories of the politics of
international law and how international law changes. From the Israeli
perspective, international law is a system of positive law in which there is no
moral connection between a particular rule and its place in the hierarchy of
international legal norms. Any illegal act, even if it challenges foundational
principles of the post-World War II legal order, such as the inadmissibility
of the acquisition of territory by force or even the complete destruction of
a legally recognized international person such as Palestine, can be rendered
valid if the act is effective and obtains widespread ex post recognition. Thus,
Israel’s conception of international law is consistent with Theodore Herzl’s
19th century conception of international law as one in which “might
precedes right.”176 It is also consistent with Schmitt’s conception of
sovereignty as the power that shapes law to further the existential
imperatives of the personalized sovereign.177
From the perspective of Palestine, international law by contrast, is a
hierarchy of moral principles undergirding a broader legal order.
Accordingly, its arguments assume that the foundational principles of post-
World War I and World War II international law, such as the territorial
integrity of states, self-determination, and the inadmissibility of territory
acquired by conquest, reflect an immanent political morality, making them
superior to lower-order principles like effectiveness. Because Palestine does
not satisfy the Montevideo effectiveness factors or other empirical indicia
of effectiveness, its claim to statehood, like Israel’s, can also be said to be
contrary to the positive rules of international law.178 However, its claim is
consistent with Heller’s account of when the sovereign should act against
the positive law: when doing so is necessary to vindicate the higher order
principles of the law or to “prevent lawmaking by lawbreakers.”179 Indeed,
if it is the case, as James Crawford says, that “Palestine [is] an entity which
is not sufficiently effective to be regarded as independent, but whose people
is entitled to self-determination,” then the answer to his question “should
international law treat as having been done [i.e., recognition of Palestine]
that which ought to be done?” seems obvious.180
Crawford here nods to the Schmittian paradox hidden—or not so
hidden—in international law when viewed from Kelsen’s lens of the pure
theory of law: Palestine cannot satisfy the objective prerequisites of

176. THEODOR HERZL, THE JEWISH STATE 76 (Alex Bein & Louis Lipsky eds., 2008).
177. DYZENHAUS, supra note 19, at 54, 56-57.
178. Crawford, Creation of Palestine, supra note 21, at 308-09 (noting the utter empirical plausibility
of the Palestinian claim to statehood from the perspective of the Montevideo factors).
179. HELLER, supra note 156, at 174.
180. CRAWFORD, CREATION OF STATES, supra note 25, at 438-39.
2024] LAW BREAKING AND LAW MAKING 27

statehood, nor can it ever do so, given the “vehement” objections to that
statehood by the only two states that empirically matter, Israel and the
United States.181 Nevertheless, the higher order principles of international
law demand that Palestine’s statehood should exist.
In this context, Heller’s conception of sovereignty does important
normative and explanatory work. First, it appeals to the higher-order
normative ideals of international law against the lower-order rule of
empirical effectiveness. Crawford’s observation recognizes this logic, but
despairs at the empirical futility of implementing what international law
demands with respect to Palestine. Further, it calls for creating an alternative
coalition of wills that can challenge and ultimately overcome the power of
the United States and Israel. But Crawford, as a committed legal positivist
who upholds Kelsen’s distinction between law and politics, rejects this
strategy as distorting law’s neutrality.182 In despairing at the prospect of
Palestinian independence, Crawford confirms Heller’s criticism of the pure
theory of law: it disables supporters of democratic equality in favor of those
who would wield power in an arbitrary and personalistic manner.
From Heller’s perspective, however, Palestine’s political and legal
strategy to obtain recognition as an independent sovereign state would be
futile if it were based only on appeal to the normative ideals of international
law.183 After all, these were insufficient to save it from destruction in 1947-
49. What has kept Palestine alive is the existence of a broad coalition of
actors—what Heller calls the “intersubjective, normative binding of
wills”184—that supports its claim to independence. The importance of the
UN and the formal legal order it promotes, even if it seems toothless and
vulnerable to the most powerful states through the principle of
effectiveness, is that it enables the formation of international coalitions
comprised not only of states—such as the global south’s alliance with

181. Crawford, Creation of Palestine, supra note 21, at 309. Indeed, the only remaining obstacle to
Palestine’s admission as a full member of the UN is the continued U.S. opposition to its membership,
as shown by the recent U.S. veto of admission of Palestine to the UN. See US Vetoes Palestine’s Request
For Full UN Membership, UN NEWS, (Apr. 18, 2024), https://news.un.org/en/
story/2024/04/1148731.
182. Crawford, Creation of Palestine, supra note 21, at 307.
183. QUIGLEY, supra note 22, at 122-24 (discussing continued reference to Palestine in
international law after 1948); id. at 137-48 (discussing representation of Palestine in the UN General
Assembly, Security Council, and other international bodies after 1948); id. at 164 (discussing UN’s
reaction to Palestine’s declaration of statehood); id. at 192-94 (discussing Palestine as a subject before
the ICJ); id. at 194-202 (discussing Palestine’s interactions with various international organizations, the
international community, and the State of Israel). The State of Palestine has also entered numerous
international treaties, including the International Covenant on Civil and Political Rights, International
Covenant on Economic, Social and Cultural Rights, and the Rome Statute of the International Criminal
Court. See International Covenant on Civil and Political Rights, Dec. 16, 1966; International Covenant
on Economic, Social and Cultural Rights, Dec. 16, 1966; State of Palestine, INTERNATIONAL CRIMINAL
COURT (last updated July 23, 2019), https://asp.icc-cpi.int/states-parties/asian-states/Palestine.
184. HELLER, supra note 156, at 143.
28 VIRGINIA JOURNAL OF INTERNATIONAL LAW [ONLINE

Palestine—but also of UN agencies, non-governmental organizations,

judiciaries, and even dissident officials within the government bureaucracies
of states that are otherwise hesitant to give up the prerogatives of power.185
Modern international law’s capacity to generate a broad “intersubjective,
normative binding of wills” that Heller thought necessary “to prevent
lawmaking by lawbreakers”186 is perhaps most powerfully evidenced by
South Africa’s genocide case against Israel.187 That suit was itself only
possible because of the post-World War II convention prohibiting
genocide.188 The ICJ, by an overwhelming 15-to-2 vote majority that
included the American president of the court,189 ordered provisional
measures to prevent the plausible risk of genocide from taking place in
Gaza.190 The erga omnes partes character of the obligations in the Genocide
Convention gave the ICJ’s order a universal legal effect,191 vindicating
Kelsen’s contention regarding the importance of an international court to
the integrity of international law.192
But the order, in and of itself, would be meaningless without the
existence of Heller’s “intersubjective, normative binding of wills” that
complies with the order. One way that international law generates this
“intersubjective, normative binding of wills” is by enlisting national courts
to vindicate international law. Kelsen noted that, even on the national
primacy view of international law, international law becomes a part of a
state’s internal law and as a result has the potential to limit arbitrary state
power. That insight is vindicated in the case of Palestine. As international
treaties become incorporated into the domestic legal systems of state parties
or are otherwise reflected in various states’ domestic legal systems, broad
coalitions of citizens can bring actions in local courts to enforce
international law against the policies of a recalcitrant executive branch. For
example, on the same day that the ICJ ordered provisional measures, a U.S.
district court judge held hearings in a suit brought against U.S. president
Joseph Biden by an international non-governmental organization, Defense
for Children International–Palestine, alleging that his support of Israel’s war

185. IMSEIS, supra note 2, at 9 (discussing the counterhegemonic potential of the UN).
186. HELLER, supra note 156, at 174.
187. S. Afr. v. Isr., Application Instituting Proceedings, (Dec. 28, 2023), https://www.icj-
cij.org/sites/default/files/case-related/192/192-20231228-app-01-00-en.pdf.
188. Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948.
189. Press Release, ICJ, Application of the Convention on the Prevention and Punishment of the
Crime of Genocide in the Gaza Strip (South Africa v. Israel): The Court Indicates Provisional Measures
(Jan. 26, 2024).
190. S. Afr. V. Isr., Request for Provisional Measures, (Jan. 26, 2024), https://www.icj-
cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf.
191. Oona Hathaway & Alaa Hachem, The Promise and Risk of South Africa’s Case Against Israel, JUST
SEC. (Jan. 4, 2024), https://www.justsecurity.org/91000/the-promise-and-risk-of-south-africas-case-
against-israel/.
192. Kelsen, Principle of Sovereign Equality, supra note 143, at 213.
2024] LAW BREAKING AND LAW MAKING 29

in Gaza violated the Genocide Convention.193 While the district court

dismissed the suit as non-justiciable under the United States’ political
question doctrine, the judge agreed with the ICJ’s legal conclusion that the
allegation of genocide in Gaza was plausible, and therefore concluded his
order with a plea to Biden to change course.194 Now on appeal before the
Ninth Circuit, a group of seventeen former U.S. government civilian and
military officials have submitted an amicus brief asking the appellate court
to reinstate the lawsuit, arguing that the political question doctrine does not
apply to a case where a clear legal rule—in this case, the prohibition of
genocide—applies.195
In Canada, Palestinian Canadians, supported by various non-
governmental organizations, have brought suit under the Export and Import
Permits Act196 against the Canadian government seeking to prevent it from
transferring arms to Israel.197 Meanwhile, other governments and some
firms in the global north have also taken steps to comply with the ICJ’s
order.198

193. Defense for Children International-Palestine v. Biden, U.S. CTS. (Jan. 26, 2024),
https://www.uscourts.gov/cameras-courts/defense-children-international-palestine-v-biden.
194. Defense for Children International – Palestine v. Biden, No. 23-cv-05829-JSW, 2024 WL
390061, at *1, *5 (N.D. Cal. Jan. 31, 2024) (“Yet, as the ICJ has found, it is plausible that Israel’s
conduct amounts to genocide. This Court implores Defendants to examine the results of their
unflagging support of the military siege against the Palestinians in Gaza.”).
195. Brief for Former Diplomats, Service Members, and Intelligence Officers as Amici Curiae
Supporting Appellant, Defense for Children International – Palestine at 11, No. 24-704 (9th Cir. Mar.
15, 2024) (arguing that the political question doctrine “does not impede courts’ authority to ensure that
the political branches’ conduct of foreign affairs conforms to the law.”). Seven other amici briefs have
been entered in support of the plaintiffs. See Defense for Children International – Palestine v. Biden, CTR. FOR
CONST. RTS. (last modified May 29, 2024), https://ccrjustice.org/home/what-we-do/our-
cases/defense-children-international-palestine-v-biden (with links to the briefs of U.S. constitutional
law scholars, international law scholars, and a group of international human rights and civil rights non-
governmental organizations).
196. See Export and Import Permits Act, R.S.C. 1985, c E-19, art. 7.3(1)(b)(i)-(iii) (prohibiting the
issuance of export permits for weapons if “they could be used to commit or facilitate” “serious
violation[s]” of “international humanitarian law,” “international human rights law,” or “an act
constituting an offence under international conventions or protocols relating terrorism”).
197. Darren Major, Group of Palestinian Canadians Sues Federal Government to Block Military Exports to
Israel, CBC NEWS (Mar. 5, 2024), https://www.cbc.ca/news/politics/canada-lawsuit-israel-military-
exports-1.7134664.
198. See, e.g., Japan’s Itochu to End Cooperation With Israel’s Elbit Amid Gaza War, REUTERS (Feb. 5,
2024), https://www.reuters.com/business/japans-itochu-end-cooperation-with-israels-elbit-over-
gaza-war-2024-02-05/. Canada and other countries have recently suspended arms sales to Israel. See
Canadian Freeze on New Arms Export Permits to Israel to Stay, REUTERS (Mar. 20, 2024), https://www.
reuters.com/world/canadian-freeze-new-arms-export-permits-israel-stay-2024-03-20/; Canada Stops
Arms Sales to Israel: Who Else Has Blocked Weapons Exports?, AL JAZEERA (Feb. 15, 2024),
https://www.aljazeera.com/news/2024/2/15/which-countries-have-stopped-supplying-arms-to-
israel.
30 VIRGINIA JOURNAL OF INTERNATIONAL LAW [ONLINE

Contrary to Crawford’s suggestion that politicization of the Israel-

Palestine conflict risked undermining international law’s legitimacy,199
subsequent events seem to have vindicated Heller’s view that the only way
to uphold a formal system of positive law, whether domestic or
international, is to marshal politically effective coalitions that are united in
support of that legal system’s morality. Palestine’s continued relevance to
international law also vindicates Kelsen’s view that international law’s
incorporation into national systems has the effect, even under the “primacy
of national law” view, of constraining states’ abilities to reject international
law whenever it is inconsistent with their perceived interests by generating
positive rules of law that are amenable to judicial enforcement.200

VI. CONCLUSION

The unresolved Zionist-Arab, and then Israel-Palestine, conflict has

been a central problem of international law since the end of World War I.
With Israel’s war against Gaza, this conflict has confirmed the deep and
profound divisions in the world community regarding not only this conflict
but also of the nature of international law. This Essay argues that it is no
accident that the Israel-Palestine conflict is so central: it raises fundamental
questions about the nature of international law, and the kind of international
community that is possible in the post-World War II era. Moreover, the
arguments presented by the various parties to this conflict and their
supporters illustrate the continued prevalence of abstract jurisprudential
debates about the relationship of law to power.
One view, which I have characterized as aligning with Schmitt’s
conception of sovereignty, understands international law as a tool for
furthering the interests of sovereign states, and elevates an enabling
condition of international law—effectiveness—into a central method of
changing the law through a strategy of law breaking followed by recognition,
even when doing so undermines the political morality of international law.201
Viewed from the perspective of a Schmittian jurist, what is viewed as
“exceptional” in international law reveals its true reality as an expression of

199. Crawford, Creation of Palestine, supra note 21, at 307 (arguing that the partisan deployment of
international law risks the law’s legitimacy by conflating it with politics).
200. Kelsen, Principle of Sovereign Equality, supra note 143, at 215-17 (arguing that the idea of state
sovereignty does not preclude the logical possibility of courts enforcing international law against states).
201. CRAWFORD, CREATION OF STATES, supra note 25, at 429 (noting that, while the argument
that the Palestine Mandate was a facial violation of Article 22 of the Covenant of the League of Nations
is “substantial,” it would have nonetheless become valid by virtue of the League member states’
recognition of it in practice).
2024] LAW BREAKING AND LAW MAKING 31

sovereign power all the way down.202 Israel has generally adopted this view
of international law, as exemplified by Julius Stone’s arguments for Israel’s
statehood. While Schmitt’s theory of the sovereign exception can facilitate
authoritarian dictatorship in the context of domestic law, it authorizes
colonialism, apartheid, or worse in the international context.203
The second view, represented by James Crawford, is consistent with
Kelsen’s conception of the pure theory of law. It views international law as
a series of positive rules of equal validity, regardless of their relative moral
status. If that produces normative deadlock, as in the case of Palestine,
where its right to self-determination is blocked by the refusal of the relevant
powers to cooperate to secure it, that simply reflects the tragedy of
international law as an undeveloped system of law with no systematic means
to resist determined law breakers other than persuasion.
The third view, represented by those advocating for Palestine’s
independence, is consistent with Heller’s view of sovereignty as the
conjunction of norms with the wills of a real coalition that is politically
committed to furthering the law’s immanent morality. Heller’s view of the
relationship of positive law to the law’s own morality provides a response
to the dilemma that results from the purely formal conception of law
advocated by Kelsen and adopted by jurists like Crawford. Crawford, either
out of despair or genuine wonder, gives a nod to the equitable precept that
the law deems as done that which ought to be done,204 but fails to accept
the political conclusion that follows from this precept. Palestine advocates,
by contrast, actuate this equitable principle by implicitly adopting another
equitable precept—no trust fails for a want of a trustee205—and thus have
taken it on themselves to form an “intersubjective, normative binding of
wills” in the hope of securing Palestine’s independence, the original object
of Article 22’s “sacred trust of civilization.”206 Far from subverting law, as
Crawford would have it, this kind of politics is indispensable to vindicating
the immanent moral commitments of post-World War II international law.

202. CARL SCHMITT, POLITICAL THEOLOGY: FOUR CHAPTERS ON THE CONCEPT OF

SOVEREIGNTY 15 (George Schwab trans., 2005) (“The exception is more interesting than the rule. The
rule proves nothing; the exception proves everything: It confirms not only the rule but also its
existence, which derives only from the exception. In the exception the power of real life breaks through
the crust of a mechanism that has become torpid by repetition.”).
203. The published political program of Israel’s current Minister of Finance, Bezalel Smotrich,
states that the “‘two state’ model has led Israel to a dead end” and that Palestinians have, essentially,
three options: acceptance of permanent second class status, emigration, or violent subjugation. See
Bezalel Smotrich, Israel’s Decisive Plan, ‫( השילוח‬2017), https://hashiloach.org.il/israels-decisive-plan/
(last visited June 29, 2024).
204. See ALBERT H. OOSTERHOFF, ROBERT CHAMBERS & MITCHELL MCINNES, OOSTERHOFF
ON TRUSTS 815 (9th ed. 2019).
205. RESTATEMENT (THIRD) OF TRUSTS § 31 (AM. L. INST. 2003).
206. League of Nations Covenant art. 22