The United Nations Partition of Palestine Revisited
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STANFORD JOURNAL OF INTERNATIONAL LAW VOLUME 57, NUMBER 1 WINTER 2021 STANFORD JOURNAL OF INTERNATIONAL LAW Winter 2021 CONTENTS ARTICLES THE UNITED NATIONS PLAN OF Ardi Imseis 1 PARTITION FOR PALESTINE REVISITED: ON THE ORIGINS OF PALESTINE’S INTERNATIONAL LEGAL SUBALTERNITY MIXED STAKES CONFLICTS IN Jide Nzelibe 55 INTERNATIONAL AND CONSTITUTIONAL LAW ARCTIC INDIGENOUS COMMUNITIES AND Nedim Hogic & 105 ANTARCTIC ICEBERGS AS SUBJECTS OF Imad Antoine Ibrahim INTER-LEGALITY FORMATTED_POSTGALLEY_UN PLAN OF PARTITION.DOCX (DO NOT DELETE) 4/10/21 9:28 AM THE UNITED NATIONS PLAN OF PARTITION FOR PALESTINE REVISITED: ON THE ORIGINS OF PALESTINE’S INTERNATIONAL LEGAL SUBALTERNITY ARDI IMSEIS* This Article critically examines the United Nations (U.N.) commitment to international law by revisiting General Assembly Resolution 181(II) of 29 No- vember 1947 recommending the partition of Mandate Palestine into a Jewish State and an Arab State. The main claim advanced is that Resolution 181(II) was an expression of an international rule by law, rather than an international rule of law, through which law was used, abused or selectively applied with grossly iniquitous results. To this end, it undertakes a critical international le- gal analysis of Resolution 181(II) with specific reference to the verbatim and summary records of the United Nations Special Committee on Palestine whose report of September 1947 formed the basis of both the Resolution’s text and its underlying rationale. Rather than being governed by the objective application of international law, the Resolution was driven by distinctly European political goals, which privileged support for the European Zionist program in Palestine. The result was to legislate into U.N. law the two-state framework as the legal cornerstone of the Organization’s position on Palestine against the wishes of the country’s indigenous Arab majority. In this sense, Resolution 181(II) can be understood as the opening act of Palestine’s disenfranchisement and con- tingency in the U.N., a subaltern position which continues to this very day. I. INTRODUCTION ...................................................................................................... 2 II. THE UNITED NATIONS AS THE STANDARD-BEARER OF THE INTERNATIONAL RULE OF LAW ........................................................................................................ 6 * Assistant Professor, Faculty of Law, Queen’s University. I am indebted to Reem Bahdi, John Dugard, Richard Falk, Michael Lynk and Alice Panepinto for comments received on earlier drafts of this article. All errors are mine. 1 57 STAN. J. INT’L L. 1 (2021) FORMATTED_POSTGALLEY_UN PLAN OF PARTITION.DOCX (DO NOT DELETE) 4/10/21 9:28 AM 2 STANFORD JOURNAL OF INTERNATIONAL LAW 57:1 III. RESOLUTION 181(II) AND THE UNITED NATIONS AS A SITE OF THE INTERNATIONAL RULE BY LAW ............................................................................. 8 A. Requirements of the International Rule of Law: The U.N. Charter, Self- Determination and the Role of the U.N. in the Mandate for Palestine ............ 8 B. Resolution 181(II): Its Terms ......................................................................... 13 C. Resolution 181(II): Assessment Under International Law ............................ 15 D. Resolution 181(II) as an Embodiment of the International Rule by Law ...... 20 IV. WHAT PRODUCED THE RULE BY LAW IN RESOLUTION 181(II)? THE UNITED NATIONS SPECIAL COMMITTEE ON PALESTINE AND SUBSEQUENT GENERAL ASSEMBLY DEBATES ........................................................................................... 23 A. Bias in UNSCOP’s Composition and Terms of Reference ........................... 24 B. UNSCOP’s Unwillingness to Sufficiently Engage Palestinian Arab Opinion .......................................................................................................... 30 C. UNSCOP’s Contempt for Democratic Government and the Empirical Reality of the Indigenous Arab Population .................................................... 35 V. THE PRACTICAL CONSEQUENCES OF THE RULE BY LAW: UNSCOP’S COGNITIVE DISSONANCE REGARDING THE INEVITABILITY OF VIOLENCE BEFALLING PALESTINE FOLLOWING PARTITION ................................................. 44 VI. CONCLUSION ....................................................................................................... 50 I. INTRODUCTION On 28 January 2020, the Trump Administration launched its long-awaited “Deal of the Century” for Middle East peace.1 It was preceded by a number of inter- nationally unlawful decisions by Washington recognizing Israeli sovereignty in oc- cupied East Jerusalem and the legality of Israeli settlements in the occupied Palestin- ian territory (OPT).2 Its terms openly endorsed, inter alia, Israeli annexation of up to 30 per cent of the OPT, including all Israeli settlements and the Jordan Valley, and the establishment of a Palestinian “state” on the remaining territorially discontiguous fragments. The envisioned Palestinian “state” would not possess any control over its territorial and maritime borders, sea space, air space, and electromagnetic sphere. It would be completely demilitarized and connected only through a series of bridges, roads and tunnels all subject to Israeli control. A symbolic Palestinian capital city of “al-Quds” would be established, but only outside of the actual city of Jerusalem, and no Palestine refugee would be allowed to return to their lands inside Israel, with re- turn limited to the new Palestinian “state” subject to an Israeli veto.3 1 White House, Peace to Prosperity: A Vision to Improve the Lives of the Palestinian and Israeli People *2020), https://www.whitehouse.gov/wp-content/uploads/2020/01/Peace-to-Prosperity- 0120.pdf [https://perma.cc/K6JD-ZAQJ] [hereinafter Trump Plan]. 2 Kali Robinson, What is U.S. Foreign Policy on the Israeli-Palestinian Conflict?, COUNCIL ON FOREIGN RELATIONS: BACKGROUNDERS, https://www.cfr.org/backgrounder/what-us-policy-israeli-pal- estinian-conflict [https://perma.cc/9MLQ-TBGK] (last updated Dec. 15, 2020). As the belligerent occu- pant in the occupied Palestinian territory, Israel cannot legally be sovereign in the territory. Likewise, it may not transfer any of its civilian nationals into the territory it occupies. See S. Michael Lynk (Special Rapporteur), Second Rep. on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, U.N. Doc. A/72/43106 (Oct. 23, 2017) [hereinafter Lynk Report]. 3 Trump Plan, supra note 1. FORMATTED_POSTGALLEY_UN PLAN OF PARTITION.DOCX (DO NOT DELELE) 4/10/21 9:28 AM 2021 The United Nations Plan of Partition for Palestine Revisited 3 Reactions to the Trump Plan were swift. Israel, who bilaterally negotiated it with Washington, warmly welcomed it and announced that it would formally annex those portions of the OPT allocated to it by the plan at a time of its choosing after 1 July 2020.4 For its part, the Palestine Liberation Organization (PLO) rejected the plan because it would result in a “Swiss cheese” state, legitimize the illegality of Israel’s territorial conquest of the OPT, permanently frustrate Palestinian self-deter- mination, and “flagrantly violate” international law as “represented by hundreds of United Nations resolutions and dozens of Security Council resolutions.”5 As if to rub salt into the wound, Jared Kushner, Trump’s son-in-law and chief Middle East peace negotiator (as well as leader of a foundation financing Israeli settlements),6 publicly urged the Palestinians to seize this “big opportunity,” goading them on their “perfect track record of blowing every opportunity they’ve had in their past.”7 So brazen was the Trump Plan, that even individuals traditionally close to Israel chided it. Thus David Makovsky, a fellow at the Washington Institute for Near East Policy, derided it for being “more an annexation plan than a peace plan,”8 while Daniel Levy, an Israeli former peace negotiator, called it “an act of aggression dripping with the coarse syntax of racism. A hate plan, not a peace plan.”9 Among the international community, States roundly rejected the plan,10 and 47 independent United Nations (U.N.) Special Procedures mandate-holders indicated that the plan must be “mean- ingfully opposed” as a “vision of a 21st century apartheid.”11 In view of the above, it was disconcerting to find that the Trump Plan was met with a relatively muted response by U.N. Secretary-General, António Guterres. Before the Security Council, he dryly affirmed “the commitment of the United Na- tions to supporting the parties in their efforts to achieve a two-State solution,” noting that “the position of the United Nations in this regard has been defined throughout the years by resolutions of the Security Council and the General Assembly, by which the Secretariat is bound.”12 When pressed by journalists, he repeated these talking 4 Tovah Lazarof, Annexation as Early as July 1 under Netanyahu-Gantz Deal, JERUSALEM POST (May 9, 2020), https://www.jpost.com/arab-israeli-conflict/annexation-as-early-as-july-1-under-netan- yahu-gantz-deal-625304. 5 Statement by H.E. President Mahmoud Abbas (Palestine), Situation in the Middle East, Includ- ing the Palestine Question, U.N. SCOR, 8717th mtg. at 4, U.N. Doc. S/PV.8717 (Feb. 11, 2020). 6 Chris Riotta, Jared Kushner Failed to Disclose He Led a Foundation Funding Illegal Israeli Settlements Before U.N. Vote, NEWSWEEK (Dec. 3, 2017, 6:00 AM), https://www.newsweek.com/jared- kushner-disclosure-form-west-bank-settlements-israel-white-house-729290