The UN Partition Plan for Palestine and International Law

Abstract

In 1947, the United Kingdom and the United Nations Special Committee on Palestine (UNSCOP) concluded that Palestine’s Arabs and Jews, who had been subject to a British-administered League of Nations mandate since 1922, were sufficiently advanced to govern themselves. A “Plan of Partition with Economic Union” was subsequently adopted by the UN General Assembly in Resolution 181 (II) “for the future Government of Palestine” (Resolution 181 (II)) that made provision for the establishment of two states in the territory along with a special international regime for the City of Jerusalem. The plan was never implemented in the way it was foreseen, due to the outbreak of war, although the UN Secretariat, the Soviet Union, and the Jewish Agency, considered it a binding act of international law. This was also a view that was reiterated by other states when Israel applied for membership of the UN, and during the debate in the UN General Assembly to establish a special international regime for Jerusalem in 1949. Additionally, there is jurisprudence in the International Court of Justice concerning the South West Africa/Namibia cases, and judgments in Israeli and Italian courts that can be cited in support of this view. Statements made by UK officials in 1947 referred to Resolution 181 (II) as a decision of a court of international opinion. The views of the US Government and France were equivocal, although both issued statements that could be interpreted to mean that they viewed Resolution 181 (II) as normative, given the subsidiary powers conferred on the General Assembly by Article 22 of the UN Charter. The Arab states, on the other hand, opposed the resolution during the debates in 1947 on the basis that it was contrary to the Palestinian Arab people’s right of self-determination to establish a single unitary state over the whole territory. However, Israel and the Arab states (Egypt, Jordan, Lebanon, and Syria) accepted Resolution 181 (II) as a basis for negotiation in the Lausanne Protocol of 12 May 1949, indicating that it was acceptable, in principle, as a basis for negotiating the territorial issue, before negotiations began in the UN Trusteeship Council and the UN General Assembly on establishing a special international regime for Jerusalem. Although Resolution 181 (II) was never implemented in the way it was foreseen, a UN Mediator was established with wide powers to continue the work of the Palestine Commission. These powers were subsequently transferred to the UN Conciliation Commission for Palestine (UNCCP), before a plurality of states in the UN General Assembly recognized the Palestinian people as a principal party in the establishment of a just and lasting peace (GA Res 3236, 22 November 1974, para 4), who could participate in its work, in furtherance of their right to self-determination, through the representation of the Palestine Liberation Organization (PLO)—initially as an observer (GA Res 3237, 22 November 1974), then as an observer state (GA Res 67/19, 29 November 2012). Accordingly, it could be argued that the Palestinian people retained title to the territories allotted to the Arab state in Resolution 181 (II). This is a view that has since been endorsed by the international community multiple times in Security Council and General Assembly resolutions in support of a “two-state solution.” The opposition the Arab states expressed toward Resolution 181 (II) in 1947 was opposition to the establishment of a Jewish state. These states were not opposed to the creation of an Arab state. The dispute, therefore, was not over statehood per se, or title, but over the shape that the state would take and the location of its boundary with the Jewish State. Given the specificity of the topic, most analyses of Resolution 181 (II) have taken the form of articles in international law journals or chapters in books. In addition, there are historical accounts that consider partition from a broader historical vantage point. By far, most of the material comes in the form of primary sources in UN speeches, government reports, and legal memorandums.