The UN Partition Plan for Palestine and International Law

by

Victor Kattan

• LAST REVIEWED: 27 October 2021
• LAST MODIFIED: 27 October 2021
• DOI: 10.1093/obo/9780199796953-0221

Introduction

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.

Early Proposals to Partition Palestine

The idea of establishing two states in Palestine to resolve the nationalist conflict that had emerged in the country was first proposed by the 1937 Palestine Royal Commission but was considered impracticable from the point of view of colonial policy. However, the idea of establishing two states was not abandoned and continued to be considered in British policy proposals throughout the 1930s and 1940s (such as the 1945 War Cabinet Memorandum). British proposals to partition Palestine in the 1930s and 1940s remained on paper. Although the Peel’s proposals were discussed in the League of Nations (Minutes of the 1937 Extraordinary Session and Minutes of the 1939 Thirty-sixth Session), they were not implemented as the British Government did not favor population transfer or want to antagonize its colonial subjects in North Africa, the Near East, and India. Thus, British support for partition was reversed following a technical commission of inquiry that considered partition impracticable (the 1938 Woodhead Report). In 1939, the British Government supported the establishment of an independent unitary Arab state (the 1939 Statement of Policy/White Paper) instead. Its policy reversal appeared to be influenced by the publication of the Husayn-McMahon correspondence that had promised the Arabs a state of their own, which was discussed by Grattan Bushe and Malcolm MacDonald during the Thirty-sixth Session of the Permanent Mandates Commission in Geneva in 1939 following disclosure of the documents. The 1937 Palestine Royal Commission’s proposal remained significant, however, as it acknowledged the national rights of Palestine’s Arab inhabitants—which included acknowledgement of their right to establish an independent state in union with Transjordan and apply for League of Nations membership.

• Palestine Royal Commission Report Presented by the Secretary of State for the Colonies to Parliament by Command of His Majesty (Cmd 5479, 1937).

  The Royal Commission’s partition proposal (the Peel Commission) recognized the national rights of the Arab population west of the Jordan River, which according to the proposal, was to unite with the Government of Trans-Jordan, through the negotiation of a treaty of alliance with the United Kingdom. The territory of the Jewish state was limited to a small part of the remainder of Palestine.

• Minutes of the Thirty-Second (Extraordinary) Session, Geneva, 30th July–18th August 1937, Official no. C.330.M.222.1937.VI.

  These minutes contain extensive discussions by the Permanent Mandates Commission, which examined the British proposal to partition Palestine. It includes a lengthy interview between members of the commission and William Ormsby-Gore, the United Kingdom’s Colonial Secretary. It also includes various petitions submitted to the commission from Arab and Jewish groups in Palestine.

• Palestine Partition (Woodhead) Commission Report (1938) Cmd. 5854.

  Known as the Woodhead Commission, this was a British technical commission established following the work of the Peel Commission to draw up a detailed scheme for the partition of Palestine. The Commission considered proposals by the Jewish Agency and Emir Abdullah of Transjordan. The report questioned the economic and political viability of partition and suggested that the two new states remain in a customs union with the Mandatory Government.

• Palestine: Statement of Policy (May 1939) Cmd. 6019.

  In an apparent reversal of policy, the British Government decided that a self-governing unitary Palestine State should be established after an intervening transitional period of ten years when the machinery of government could be put in place. The objective was the establishment within ten years of an independent Palestine State in treaty relations with the United Kingdom.

• Minutes of the Thirty-Sixth Session, Geneva, 8th–29th June 1939, Official no. C.170.M.100.1939.VI.

  These minutes contain discussions by the Permanent Mandates Commission on the apparent reversal of British policy in Palestine, and whether it was consistent with British policy toward the Jews. It includes the minutes of an interview with Malcolm MacDonald, the Colonial Secretary, and Sir Grattan Bushe, the legal advisor, as well as petitions submitted from Arab and Jewish groups in Palestine.

• War Cabinet, Palestine, Memorandum by the Secretary of State for Foreign Affairs for the Personal Use of the Prime Minister, 10 April 1945, PREM 4/52/1, Palestine: Post-War (Partition) 1945.

  In this memorandum, drafted to consider postwar planning for Palestine in 1945, another scheme for the partition of Palestine was considered by the Foreign Office, which included the establishment of a large Jerusalem state, which would have included Bethlehem, Ramallah, Latrun, and Lydda, a Jewish state slightly smaller in size to the Peel Commission’s recommendations, and a larger Arab state, with the Negev remaining under British control.