on the UN's permanent responsibility for the question of Palestine

It is with good reason that the General Assembly annually reaffirms “the permanent responsibility of the United Nations with regard to the question of Palestine until the question is resolved in all its aspects in accordance with international law and relevant resolutions.”[1]

The Assembly’s first special session, called by the United Kingdom in April 1947, established the Special Committee on Palestine (UNSCOP) to prepare a report and submit “such proposals as it may consider appropriate for the solution of the problem of Palestine.”[2] The Special Committee report recommended that the Assembly submit eight questions to the ICJ relating to Palestine’s administration under League of Nations mandate and its potential partition or trusteeship by the United Nations, including:  

Whether the United Nations, or any of its Member States, is competent to enforce or recommend the enforcement of any proposal concerning the constitution and future government of Palestine, in particular, any plan of partition which is contrary to the wishes, or adopted without the consent of the inhabitants of Palestine.[3]

The Assembly voted against referring any of the questions and forthwith adopted the partition recommendation as Resolution 181.[4] At the time, the legal effect of the resolution split opinion,[5] but in retrospect, Resolution 181 is recognized to have been non-binding, if not ultra vires, as “it is doubtful if the UN has a capacity to convey title.”[6] Regardless, the Security Council failed to take the enforcement measures requested in Resolution 181, including a determination that “any attempt to alter by force the settlement envisaged by this resolution” constituted a threat to the peace, breach of the peace, and/or act of aggression, and the imposition of remedial measures under Articles 39 through 41 of the Charter.[7]

Writing on the Partition Plan in 1968, Nabil Elaraby, then an diplomat in the Egyptian UN mission and later an ICJ judge, remarked that “the complete dereliction by the United Nations of its duty toward the legitimate interests of Palestinians is directly responsible for the bloodshed that has distressed the area for over twenty years.”[8] It is bitterly ironic that nearly 70 years after the UN recommended Palestine’s partition, the limits of its authority to recommend, or impose, a territorial settlement in Palestine remain far from clear.       

 

[1] A/RES/70/15 (2015).

[2] UNGA Res. 106 (S-1), UN Doc. A/310 (1947), op. para. 6.

[3] Nabil Elaraby, Some Legal Implications of the 1947 Partition Resolution and the 1949 Armistice Agreements, 33 Law & Contemp. Probs. 97, 101-102 (1968), citing U.N. GAOR Ad Hoc Comm. on the Palestinian Question, Annex 25, at 300-01, U.N. Doc. A/AC.14/32 and Add. 1 (1947). See also Valentina Azarov, The Trickle-down Effects of Normative Power: The Role of International Courts in Advancing Palestine’s Actual Independence, 17 Palestine Y.B. Int’l L. 83, 89 (2014) (surveying proposals for ICJ referrals on the question of Palestine) .

[4] The question quoted above was defeated by a vote of 21 against, 20 in favor, with 13 abstentions. The vote on the other seven questions was 25 against, 18 in favor, 11 abstained. See Elaraby, op. cit., at 102.

[5] See James Crawford, The Creation of States in International Law (2d ed. 2006) 431 (“It was responsibly argued at the time that the resolution was binding by virtue of the Assembly’s own authority with respect to Mandates and of the referral of the Mandatory”) and 426 n. 8 (observing the view of the Soviet Union and the UN Secretary-General that Resolution 181 constituted a binding disposition of territory).

[6] Brownlie’s Principles of Public International Law (8th ed. 2012) 246; Henry Cattan, Palestine and International Law (1973) 64; Elaraby, op. cit, at 1021-03 (“the Assembly's powers according to Articles 10, 11, 12, and 14 of the Charter are only recommendatory and without binding force on Member States. Hence, the Arab states did not contravene their Charter obligations when they, responding to the will of the Palestine Arab majority, rejected the Partition Plan.”) But see James Crawford, The Creation of States in International Law (2d ed. 2006) 430 (“The view that the resolution was ultra vires derives from a general implication as to the dispositive powers of the General Assembly. However, even earlier practice suggested that United Nations organs can make binding dispositions of territory in appropriate circumstances, pursuant to a delegation of powers from States concerned or otherwise. This view has been twice reaffirmed, in the context of the Mandate system, by the International Court in the Status Opinion and the Namibia Opinion. There is no basis for treating the resolution as ultra vires.”) and 431 (“The conclusion must be that the that the partition plan, though valid, was intended as no more than a recommendation.”)

[7] UNGA Res. 181, UN Doc. A/RES/181(II) (1947), op. para. (a)-(c). See also Crawford, op. cit., at 424.

[8] Elaraby, op. cit., at 102.