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.”
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.” 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.
The Assembly voted against referring any of the questions and forthwith adopted the partition recommendation as Resolution 181. At the time, the legal effect of the resolution split opinion, 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. 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.
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.” 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.