THE UNITED NATIONS PLAN OF PARTITION FOR PALESTINE REVISITED: ON THE ORIGINS OF PALESTINE'S INTERNATIONAL LEGAL SUBALTERNITY.

• Author: Imseis, Ardi

1. INTRODUCTION 2 II. THE UNITED NATIONS AS THE STANDARD-BEARER OF 6 THE INTERNATIONAL RULE OF LAW III. RESOLUTION 181(II) AND THE UNITED NATIONS AS 8 A SITE OF THE INTERNATIONAL RULE BY LAW A. Requirements of the International Rule of Law: The 8 U.N. Charter, Self-Determination and the Role of the U.N. in the Mandate for Palestine B. Resolution 181(II): Its Terms 13 C. Resolution 181(II): Assessment Under International 15 Law D. Resolution 181(II) as an Embodiment of the International 20 Rule by Law IV. WHAT PRODUCED THE RULE BY LAW IN RESOLUTION 23 181(II)? THE UNITED NATIONS SPECIAL COMMITTEE ON PALESTINE AND SUBSEQUENT GENERAL ASSEMBLY DEBATES A. Bias in UNSCOP's Composition and Terms of Reference 24 B. UNSCOP's Unwillingness to Sufficiently Engage Palestinian 30 Arab Opinion C. UNSCOP's Contempt for Democratic Government and 35 the Empirical Reality of the Indigenous Arab Population V. THE PRACTICAL CONSEQUENCES OK THE RULE BY LAW: 44 UNSCOP'S COGNITIVE DISSONANCE REGARDING THE INEVITABILITY OF VIOLENCE BEFALLING PALESTINE FOLLOWING PARTITION 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 internationally unlawful decisions by Washington recognizing Israeli sovereignty in occupied East Jerusalem and the legality of Israeli settlements in the occupied Palestinian 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 return limited to the new Palestinian "state" subject to an Israeli veto. (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-determination, 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 "meaningfully opposed" as a "vision of a 21s1 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, Antonio Guterres. Before the Security Council, he dryly affirmed "the commitment of the United Nations 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 points, only adding that "we are the guardians of the U.N. resolutions and of international law in relation to the Palestinian question." (13) Of course, the Secretary-General's position was carefully designed to avoid confrontation with Washington. (14) At the same time, however, it is unclear whether his reference to the U.N. as the guardian of international law and resolutions was enough to assuage concerns with his equivocation. To this day, the conventional wisdom holds that the U.N.'s position on the question of Palestine is the only normative framework based on the international rule of law upon which a legitimate peace may one day be established. This article critically interrogates this proposition and argues that at key moments, there has been a gulf between the requirements of international law and the position of the U.N. on the question of Palestine which has inevitably helped frustrate, rather than facilitate, the search for a just and lasting peace. At the heart of this cleavage, is a condition I have elsewhere called international legal subalternity (ILS), the defining feature of which is that the promise of justice through international law is repeatedly proffered to a global subaltern class (15)--here represented by the Palestinian people--under a cloak of political legitimacy furnished by the international community through the U.N., but its realization interminably withheld. This withholding is performed through the application of what might be called an international rule by law--as distinct from the rule of law--characterized by the cynical use, abuse, or selective application of international legal norms under a claim of democratic rights-based liberalism, but with the effect of perpetuating inequity between hegemonic and subaltern actors on the system. As will be demonstrated, the international rule by law is the result of both deliberate and consequential action by hegemonic actors which manifests in structural inequality on the international legal plane for subaltern ones. By critically interrogating the claims of fidelity to the international rule of law of hegemonic actors--in this case at and by the U.N.--one is better able to understand the contours of the international rule by law and how it operates to maintain and perpetuate the contingency and subordination of weaker actors on the system despite claims to the contrary. (16)

   To explore these ideas, this article revisits perhaps the most important U.N. resolution ever passed by the Organization on the question of Palestine, namely U.N. General Assembly Resolution 181(II) of 29 November 1947. Resolution 181(II) recommended the partition of Mandate Palestine into a Jewish State and an Arab State and was therefore a watershed for introducing within the U.N. the very idea of a two-state framework as the principle means of resolving the Israel/Palestine conflict. The resolution was rejected by the PLO for decades until its "historic compromise" in 1988, when it recognized Israel and the two-state framework on the basis of the creation of a sovereign, independent, and contiguous Palestinian state in the OPT, despite being less than half the territory allocated the Arab State under the resolution. (17) The depth of this historic compromise is something not usually appreciated by policymakers today, but over seventy years later, the terms of the Trump Plan ask for a critical reappraisal of Resolution 181(II), and the U.N.'s unique role in fashioning it, so as to better appreciate the issues presently at stake.

   The main claim advanced in this article is that Resolution 181(II) was more an expression of a continued international rule by law, than an espousal of the Charter-mandated international rule of law, and as such, helped crystalize Palestine's ILS in the newly-formed U.N. system. To this end, it undertakes an international legal analysis of Resolution 181(II) with specific reference to the verbatim and summary records of the United Nations Special Committee on Palestine (UN SCOP), whose report to the General Assembly in September 1947 formed the basis of both the resolution's text and its underlying rationale. Contrary to the traditional international legal historiography, this article posits that the resolution was neither procedurally ultra vires the General Assembly, nor was it substantively consistent in its terms with prevailing international law as regards self-determination of peoples. Rather than being governed by the objective application of substantive international law, the resolution was driven by distinctly European political goals and condescending attitudes that privileged European interests, including the desire to resolve Europe's "Jewish question" through support for the European Zionist Jewish settlement of Palestine, (18) over the normative requirements of international law as applied to the country and its indigenous Arab population. 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 majority. For the Palestinian people, this ultimately produced Resolution 181(II) as the opening act of disenfranchisement and contingency in the U.N. that would continue for years to come.

   The remainder of this article is divided into four parts. Part Two briefly sets out the role of the U.N. as the ostensible standard-bearer of the...