Global geopolitics

States Have No Right to Exist: How Great Powers Weaponise Legal Ignorance to Immunise Preferred Governments from Accountability

Academic Analysis | 11 June 2026

(A link to a general version of the article is at the bottom)

The question of whether Israel has a right to exist is routinely posed in Western political discourse as a threshold test of political acceptability, its function being to separate permissible from impermissible opinion rather than to initiate philosophical inquiry. The consequences of this rhetorical operation are considerable, because it prevents the actual legal and philosophical questions from receiving the analysis they require. Those questions are not exotic or marginal: they are the same questions that international law has been developing frameworks to answer since 1648, and the answers that law has produced are both more nuanced and more analytically useful than the binary the current framing permits.

International law does not recognise a right to exist as a category applicable to states. The Montevideo Convention on the Rights and Duties of States, signed on 26 December 1933 and still the foundational instrument for determining statehood under customary international law, establishes four criteria, a permanent population, a defined territory, an effective government, and the capacity to enter into relations with other states, but these are descriptive conditions, not moral entitlements.(1) The drafters of Montevideo were explicit that recognition by other states is a declaratory rather than a constitutive act: it acknowledges an existing factual condition, it does not create one. The United Nations Charter, adopted in 1945, affirms the sovereign equality of member states and prohibits interference in their internal affairs, but it grounds these protections not in any inherent dignity belonging to governmental structures but in the rights of peoples, a distinction that subsequent UN practice has repeatedly obscured but never entirely eliminated.(2) When Article 1(2) of the Charter identifies as a UN purpose the development of friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, it names peoples, not states, as the relevant subjects, a distinction that carries substantial legal weight in every adjudication where the two categories diverge.

The legal framework most directly relevant to the territorial questions at the heart of the Israeli-Palestinian conflict is the doctrine of uti possidetis juris, a principle whose application by the International Court of Justice and the Badinter Arbitration Commission has not received the attention it deserves in popular commentary on this subject. The doctrine, derived from Roman property law and first systematically applied in the decolonisation of Latin America, holds that newly independent states inherit the administrative boundaries of the colonial or predecessor entity from which they emerged, regardless of whether those boundaries correspond to ethnic, linguistic, or historical distributions of population.(3) Its application by the ICJ in the Burkina Faso v. Mali case (1986) established it as a principle of customary international law; the Badinter Commission applied it in determining the boundaries of the successor states to Yugoslavia in 1991 and 1992.(4) The principle exists precisely to prevent the alternative, the unilateral revision of boundaries by force, from becoming the operative legal norm.

Applied to the Israeli context, uti possidetis juris yields an argument that neither the political Zionist tradition nor its critics have fully developed. At the moment Israel’s independence was proclaimed on 14 May 1948, the territory under effective Israeli control did not correspond to the boundaries proposed by UN General Assembly Resolution 181 of 29 November 1947, which the Israeli declaration of independence invoked without specifying territorial limits.(5) The armistice agreements of 1949, signed separately with Egypt, Jordan, Lebanon, and Syria, established the Green Line as the de facto boundary, and Israeli practice, legal opinion, and the position of every major international body since 1967 has consistently treated the Green Line as the relevant baseline from which the occupation of the West Bank, Gaza, and the Golan Heights is measured. The uti possidetis argument for Israeli statehood within the pre-1967 boundaries is therefore considerably stronger than the arguments typically advanced from religious-nationalist title or from the contested legal status of the 1947 partition plan, but its strength depends precisely on the principle that territorial acquisition by military force does not generate legal title, which is the same principle that renders the post-1967 settlements legally problematic.

Eugene Kontorovich, the Northwestern University legal scholar who has provided the most systematic legal defence of Israeli territorial claims, advances a more complex argument than the popular versions of this position typically represent. Kontorovich’s central thesis is that the West Bank and Gaza cannot be classified as occupied territories within the meaning of the Fourth Geneva Convention because Jordan’s 1948 annexation of the West Bank was itself illegal and unrecognised, recognised only by the United Kingdom and Pakistan and therefore Jordan held no sovereign title to transmit.(6) On this analysis, the territory was legally terra nullius or at minimum disputed, and Israel’s 1967 acquisition was not the occupation of another state’s sovereign territory but the assumption of control over territory to which no state held internationally recognised title. The argument has technical sophistication; it draws on the distinction between belligerent occupation, which applies to the territory of a recognized foreign sovereign, and the quite different legal category of territory whose sovereign status is genuinely uncertain.

Kontorovich’s argument deserves direct engagement rather than the dismissal it typically receives from the political left, and it deserves scrutiny rather than the adoption it typically receives from the political right. The primary weakness is that it proves too much. If Jordan’s annexation was legally void and therefore conferred no title, the same analysis applies to the expansion of Israeli territory beyond the Resolution 181 lines during and after the 1948 war: the forcible acquisition of Arab-majority areas not assigned to the Jewish state under the partition plan was equally a departure from the internationally established framework, and if legal title cannot flow from Jordan’s unlawful annexation, it cannot flow from Israel’s unlawful expansion either. The uti possidetis principle, applied consistently, cuts in both directions: it supports Israeli sovereignty within the armistice lines precisely because those lines had become the de facto administrative boundary through which the state operated, but for the same reason it does not support Israeli claims to territory acquired after 1967.(7)

Noura Erakat’s legal scholarship, particularly her 2019 work Justice for Some: Law and the Question of Palestine, advances the counter-argument from a Palestinian legal standing perspective, and it is a more technically rigorous contribution than its political reception on either side typically acknowledges. Erakat’s central argument is that international law has been applied to the Palestinian question not as a neutral framework but as a political instrument, invoked selectively by dominant states to legitimise outcomes they preferred and set aside when it produced conclusions inconvenient to them.(8) The argument is empirically well-supported: the United States vetoed Security Council resolutions on Israeli settlements on at least forty-five occasions between 1972 and 2024, including resolutions drafted to reflect the language of the Fourth Geneva Convention that the United States itself had ratified. The ICJ’s 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory concluded, by fourteen votes to one, that the wall violated international humanitarian law, that Israel was obligated to cease construction and to make reparations, and that third states were obligated not to recognise the illegal situation created by the wall, a finding that was followed by no enforcement mechanism and produced no material change in Israeli conduct.(9)

The ICJ’s 2010 Advisory Opinion on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo provides a legally important comparator that the debate about Israeli statehood has largely failed to deploy. The Court held, by ten votes to four, that Kosovo’s declaration of independence did not violate general international law, reasoning that international law contains no prohibition on declarations of independence as such, and that the principle of territorial integrity operates as a constraint on the conduct of other states, prohibiting them from supporting secessionist movements, rather than as a prohibition on declarations of independence by the relevant people themselves.(10)The logic of this finding, applied consistently, supports the Palestinian Authority’s declarations of statehood and the UN General Assembly’s 2012 recognition of Palestine as a non-member observer state: if Kosovo’s declaration did not violate international law, neither does Palestine’s, and the argument that Palestinian statehood requires Israeli consent has no basis in the legal framework the Court articulated. Kontorovich has acknowledged the Kosovo precedent but argued that the sui generis nature of the Kosovo situation, the particular history of the dissolution of Yugoslavia and the role of the international administration established by UN Security Council Resolution 1244, distinguishes it from the Palestinian case. This argument is formally available but analytically strained: the Court’s majority opinion in Kosovo was explicitly premised on general principles, not on the specific circumstances of that dispute.

The Hebrew etymology central to the nationalist argument for Israeli statehood requires the same analytical rigour applied to its legal dimensions. The word goi, which appears in the Genesis account of the covenant between God and Abraham and was translated as ‘nation’ in most English-language Biblical translations, carries no territorial, legal, or political connotation in Biblical Hebrew; the Brown-Driver-Briggs lexicon, the standard scholarly reference for Biblical Hebrew vocabulary, defines it as people, nation, or a body of people, with no implication of sovereign territorial claim.(11) The name Israel appears in the Genesis narrative as a name given to the patriarch Jacob following a nocturnal wrestling match rendered in the text as simultaneously physical and metaphysical, and interpreted across centuries of Jewish commentary not as a geopolitical assertion but as a theological statement about the nature of religious struggle. That this narrative of radical dispossession, Abraham commanded to relinquish all earthly attachment, Jacob compelled to surrender the self in physical combat, should have become the ideological foundation for an ethnically defined territorial state is a transformation that the texts themselves do not straightforwardly support.(12)

The nation-state as an institution emerged from a historically specific sequence of developments. The Treaty of Westphalia in 1648 began to establish the principle of territorial sovereignty among European monarchies, providing a framework in which rulers could operate without formal religious authority above them. The revolutionary period of the late eighteenth century introduced the concept of popular nationalism as a mass political force; the nineteenth-century consolidations, German unification completed in 1871, Italian unification achieved between 1861 and 1870, the dissolution of the Ottoman and Austro-Hungarian empires codified at Versailles and Sèvres, produced the political map that subsequent generations took as permanent. Benedict Anderson’s Imagined Communities (1983) demonstrated that nations are not primordial entities but socially constructed identities, made possible by the mass literacy enabled by print capitalism and the standardisation of vernacular languages it produced.(13) Anderson’s analysis was not hostile to nationalism as a political phenomenon, he acknowledged its capacity to generate genuine solidarity and political mobilisation, but it was incompatible with the claim that national identities are ancient, natural, or inevitable. Hannah Arendt’s The Origins of Totalitarianism (1951) provided the systematic analysis of the connection between European nationalism and the catastrophe of the twentieth century, arguing that the administrative techniques of mass displacement, racial categorisation, and bureaucratic violence were developed in the European colonial periphery before being applied on European soil.(14)

Albert Einstein, who fled Germany in 1933 after the National Socialist government came to power, described nationalism as the measles of mankind, a remark recorded in his correspondence with the journalist P. Bucky and reproduced in The Ultimate Quotable Einstein (Princeton University Press, 2011).(15) Einstein was not opposed to Jewish cultural identity or to the project of a Jewish homeland as he initially understood it; he supported the development of the Hebrew University of Jerusalem and maintained a complex relationship with early Zionism. His later scepticism, articulated most directly in a letter co-signed with twenty-seven other prominent American Jews published in the New York Times on 4 December 1948, described the Herut Party of Menachem Begin, which subsequently became the Likud, the party that has governed Israel for the majority of its post-1977 history, as a political organisation closely akin in its organisation, methods, political philosophy, and social appeal to the Nazi and Fascist parties, a characterisation that remains among the most historically freighted assessments ever made of Israeli political culture by a Jewish intellectual of comparable standing.(16)

George Orwell’s 1945 essay ‘Notes on Nationalism,’ published in Polemic, drew a distinction between patriotism, which he described as a defensive attachment to a particular way of life without any desire for power, and nationalism, which he characterised as the will to acquire power and prestige for one’s chosen group through identification of the self with a nation or other political unit.(17) Orwell observed that nationalism is fundamentally aggressive regardless of which group exercises it, and that the nationalist’s habit of mind, the assumption that competitive prestige is the most important thing in the world and that any action is permissible in its service, is structurally identical across the full political spectrum. The observation applies with equal force to the competing nationalisms engaged in the Israeli-Palestinian conflict, and it provides the analytical framework within which both Zionist maximalism and Palestinian rejectionism can be examined without the pretence that one is legitimate political aspiration and the other is pathological violence.

The political realignments currently underway in several Western democracies on the question of Israel and Palestine are analytically significant not because they validate any particular position but because they reveal the extent to which the previous consensus rested on institutional authority rather than on the quality of the underlying arguments. A 2024 Gallup survey found that American sympathy for Palestinians had reached its highest recorded level, with a plurality of Democrats expressing more sympathy for Palestinians than for Israelis for the first time in the survey’s history.(18) The political disagreements now visible across the conventional left-right spectrum on questions of military assistance, diplomatic recognition, and the applicability of international humanitarian law to the Gaza conflict suggest that the rhetorical control previously exercised over these questions through the mechanism of the antisemitism charge is becoming less effective as the range of voices questioning Israeli government conduct, including substantial sections of the Israeli Jewish public, diaspora Jewish communities, and international legal institutions, expands beyond any plausible definition of antisemitism.

The antisemitism charge as deployed in relation to criticism of Zionism or Israeli state conduct requires analytical precision because it collapses an important distinction. Antisemitism as a historical and sociological phenomenon, racial prejudice against Jewish people as a group, reaching its terminus in the systematic genocide carried out by the National Socialist state between 1941 and 1945, is one of the most thoroughly documented atrocities in recorded history and requires neither qualification nor minimisation. The attempt to conflate this historical phenomenon with political opposition to the policies or legal status of a particular state is a different matter, and the conflation is not innocent. The International Holocaust Remembrance Alliance working definition of antisemitism, adopted by numerous governments and universities since 2016, includes within its examples the denial of Israel’s right to exist, a formulation that converts a philosophical and legal position about the nature of state legitimacy into an expression of ethnic hatred, and that Kenneth Stern, the American Jewish Committee official who drafted the original definition, has publicly stated is being misapplied to suppress legitimate political speech on university campuses.(19) Stern’s objection is not a fringe position; it is the considered assessment of the person most directly responsible for the text being invoked.

The long-term political and legal resolution of the Israeli-Palestinian conflict, if it comes, will require the language of justiciable claims rather than the language of existential rights. The questions that international law is equipped to address, the boundaries of the Israeli state, the status of the settlements under the Fourth Geneva Convention, the rights of Palestinian refugees under Resolution 194, the legal consequences of prolonged belligerent occupation, the applicability of the ICJ’s 2004 and 2024 advisory opinions, are questions with specific legal frameworks, specific bodies of precedent, and specific enforcement mechanisms, inadequate as those mechanisms have proved. The question of whether Israel has a right to exist, posed at the level of metaphysical entitlement, has no such framework. Its primary function has been to prevent the justiciable questions from being asked, and its secondary function has been to characterise as extremism any political analysis that reaches conclusions the dominant institutional consensus finds inconvenient. Both functions have served particular interests rather than the goal of legal resolution, and neither serves the populations whose fates depend on the quality of that resolution. The relevant standard is not whether a state possesses a right to exist but whether its conduct conforms to the obligations that membership of the international legal order imposes, and by that standard, the only standard that international law actually provides, the Israeli government’s conduct in the Occupied Territories since 1967 has generated a body of findings by the ICJ, the UN Special Rapporteur, and multiple treaty bodies that no serious legal analysis can dismiss without engaging directly.

The conclusion that states do not possess a right to exist is not a radical proposition, but an unremarkable consequence of reading the instruments that constitute international law as written. The Montevideo Convention confers no existential entitlement. The UN Charter protects peoples, not governmental structures. The Universal Declaration of Human Rights, adopted by the General Assembly on 10 December 1948, opens with the recognition that all human beings are born free and equal in dignity and rights, human beings, not the administrative entities they happen to inhabit at birth. (20) Jewish people have a right to exist. Palestinian people have a right to exist. Chinese people have a right to exist. British people have a right to exist. These are rights that attach to human persons, recognised in international human rights law, and no government anywhere possesses the authority to extinguish them. The State of Israel does not have a right to exist. The prospective State of Palestine does not have a right to exist. The People’s Republic of China does not have a right to exist. The United Kingdom does not have a right to exist. This is not a controversial statement in international law; it is a tautology. States are political instruments. They exist as long as they function and are recognised, and they dissolve when they do not, as the Soviet Union dissolved in 1991, as Yugoslavia dissolved across the same decade, as the Ottoman Empire dissolved after 1918, as every political structure in recorded history has eventually dissolved, without this constituting a violation of anyone’s rights.

The conflation of state survival with human rights is not an intellectual error that persists through carelessness. It is maintained deliberately, by governments with the institutional capacity to enforce the confusion and the political incentive to do so. When the United States Congress passed the Taylor Force Act in 2018, conditioning aid to the Palestinian Authority on the cessation of payments to the families of those killed or imprisoned in conflict with Israel, it was legislating a distinction between state-sanctioned violence and non-state violence that has no basis in the equal application of international humanitarian law.(21) When the British government adopted the IHRA working definition of antisemitism in 2016 and applied it in ways that classified opposition to Israeli government policy as racial hatred, it was deploying the apparatus of human rights protection to suppress the political speech that human rights protection was designed to enable.(22) When the German Bundestag passed a resolution in May 2019 declaring the Boycott, Divestment and Sanctions movement antisemitic, it was applying to a non-violent consumer and investment campaign the same legal category used to prosecute racial incitement, a comparison that requires either that BDS constitutes ethnic hatred or that the category of antisemitism has been expanded well beyond its original and defensible meaning. (23)

The ICJ’s Advisory Opinion of 19 July 2024 on the Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, found that Israel’s continued presence in the Occupied Palestinian Territory is unlawful, that Israel is under an obligation to bring its unlawful presence to an end as rapidly as possible, and that all states are under an obligation not to render aid or assistance in maintaining the situation created by that unlawful presence.(24) This finding did not create new law. It applied existing law, the law of belligerent occupation, the prohibition on the acquisition of territory by force codified in UN General Assembly Resolution 2625 (XXV) of 1970, the Fourth Geneva Convention, to facts that had been accumulating since 1967. The finding produced no enforcement mechanism. The United States indicated it would not treat the opinion as binding. Israeli government officials described the Court as biased. None of this engagement addressed the legal substance of the opinion, because the legal substance of the opinion is not seriously contestable within the framework of international law as it actually exists.

The populations on both sides of this conflict, Jewish Israelis, Palestinian Arabs, the communities displaced in 1948 and in subsequent decades, possess rights that no political settlement can extinguish and that no government’s survival interest can override. Their states, present or prospective, possess no such rights. Recognising this distinction is not hostility to any people. It is the elementary condition for a political conversation grounded in the law that exists rather than the mythology of existential entitlement that powerful states have constructed to place their conduct beyond scrutiny. Until the question is asked on those terms, the answers will continue to serve the institutions that benefit from the confusion rather than the people who bear its consequences.

Authored By: Global GeoPolitics

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References

1. Montevideo Convention on the Rights and Duties of States, signed 26 December 1933, entered into force 26 December 1934, Article 1. Available at: https://www.jus.uio.no/english/services/library/treaties/01/1-02/rights-duties-states.xml

2. Charter of the United Nations, signed 26 June 1945, Articles 1–2. Available at: https://www.un.org/en/about-us/un-charter/full-text

3. Malcolm Shaw, International Law, 8th ed. (Cambridge University Press, 2017), pp. 173–176; International Court of Justice, Case Concerning the Frontier Dispute (Burkina Faso v. Republic of Mali), Judgment of 22 December 1986, ICJ Reports 1986, para. 20–26.

4. Conference on Yugoslavia Arbitration Commission (Badinter Commission), Opinion No. 3, 11 January 1992, 31 ILM 1499 (1992); ICJ, Frontier Dispute (Burkina Faso v. Mali), ICJ Reports 1986, p. 554.

5. Declaration of the Establishment of the State of Israel, 14 May 1948 (5 Iyar 5708), reprinted in Documents on Israeli-Arab Relations (Israel Ministry of Foreign Affairs, 2000). Available at: https://www.gov.il/en/departments/general/declaration-of-establishment-state-of-israel; United Nations General Assembly Resolution 181 (II), 29 November 1947.

6. Eugene Kontorovich, ‘The Jurisprudence of the Israeli Settlements,’ in Louis René Beres and Yosef Merari (eds.), Security or Armageddon: Israel’s Nuclear Strategy (Lexington Books, 1986); see more recently Eugene Kontorovich and Abraham Bell, ‘Palestine, Uti Possidetis Juris, and the Borders of Israel,’ Arizona Law Review, Vol. 58, No. 3 (2016), pp. 633–692.

7. Yoram Dinstein, War, Aggression and Self-Defence, 5th ed. (Cambridge University Press, 2011), pp. 102–112; Theodor Meron, ‘The West Bank and International Humanitarian Law on the Eve of the Fiftieth Anniversary of the Six Day War,’ American Journal of International Law, Vol. 111, No. 2 (2017), pp. 357–375.

8. Noura Erakat, Justice for Some: Law and the Question of Palestine (Stanford University Press, 2019), pp. 1–28.

9. International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports 2004, pp. 136–203. Available at: https://www.icj-cij.org/case/131

10. International Court of Justice, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion of 22 July 2010, ICJ Reports 2010, pp. 402–453, paras. 79–122. Available at: https://www.icj-cij.org/case/141; for the Kontorovich distinction, see Eugene Kontorovich, ‘Kosovo and the Law of Secession,’ in Marcelo Kohen (ed.), Secession: International Law Perspectives (Cambridge University Press, 2006).

11. Francis Brown, Samuel Driver, and Charles Briggs, A Hebrew and English Lexicon of the Old Testament (Clarendon Press, 1907), s.v. goi, pp. 156–157.

12. Robert Alter, The Five Books of Moses: A Translation with Commentary (W.W. Norton, 2004), pp. 178–183; Jon D. Levenson, Sinai and Zion: An Entry into the Jewish Bible (HarperOne, 1985), pp. 89–117.

13. Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism, revised ed. (Verso, 1991), pp. 37–46.

14. Hannah Arendt, The Origins of Totalitarianism (Harcourt, Brace and Company, 1951), Part II: Imperialism, pp. 123–157.

15. Albert Einstein, letter to P. Bucky, 1932, cited in Alice Calaprice (ed.), The Ultimate Quotable Einstein (Princeton University Press, 2011), p. 268.

16. Albert Einstein et al., letter published in the New York Times, 4 December 1948, reproduced in Irene Gendzier (ed.), A Middle East Reader (Pegasus, 1969), pp. 295–298.

17. George Orwell, ‘Notes on Nationalism,’ Polemic, No. 1, May 1945; reprinted in Sonia Orwell and Ian Angus (eds.), The Collected Essays, Journalism and Letters of George Orwell, Vol. III (Secker and Warburg, 1968), pp. 361–380.

18. Gallup, ‘Americans’ Sympathies in Israeli-Palestinian Conflict,’ annual survey, March 2024. Available at: https://news.gallup.com/poll/472070/americans-sympathies-israeli-palestinian-conflict.aspx

19. Kenneth Stern, ‘I Drafted the Definition of Antisemitism. Rightwing Jews Are Weaponizing It,’ The Guardian, 13 December 2019. Available at: https://www.theguardian.com/commentisfree/2019/dec/13/antisemitism-executive-order-trump-chilling-effect-campus; see also Kenneth Stern, The Conflict over The Conflict: The Israel/Palestine Campus Debate (University of Toronto Press, 2020), pp. 121–148.

20. Universal Declaration of Human Rights, UN General Assembly Resolution 217A (III), 10 December 1948, Article 1. Available at: https://www.un.org/en/about-us/universal-declaration-of-human-rights

21. Taylor Force Act, Pub. L. 115-141, Division S, Title X, signed into law 23 March 2018; Congressional Research Service, ‘The Taylor Force Act: Overview and Issues,’ IF10816, updated 14 February 2023.

22. UK Government, ‘Adoption of the IHRA Definition of Antisemitism,’ Cabinet Office and Department for Communities and Local Government, 12 December 2016; for contested applications see David Feldman, ‘Will the IHRA Definition of Antisemitism Help Combat Hatred?,’ The Guardian, 28 March 2018.

23. Deutscher Bundestag, Drucksache 19/10191, ‘BDS-Bewegung hat antisemitischen Charakter – Keine Unterstützung für Gruppen, die Israel das Existenzrecht absprechen,’ 17 May 2019. Available at: https://dip.bundestag.de/vorgang/bds-bewegung-hat-antisemitischen-charakter/243133

24. International Court of Justice, Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, Advisory Opinion of 19 July 2024, paras. 261–285. Available at: https://www.icj-cij.org/case/192