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

Yuval Shany*

*Corresponding author for this work

Research output: Contribution to journalReview articlepeer-review

4 Scopus citations


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

Original languageAmerican English
Pages (from-to)391-408
Number of pages18
JournalIsrael Law Review
Issue number3
StatePublished - 1 Nov 2016

Bibliographical note

Publisher Copyright:
© 2016 Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem.


  • Israel/Palestine
  • Palestine Mandate
  • legal history
  • self-determination
  • title over territory


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