User talk:Harlan wilkerson/UN Partition Plan


 * The citations are provided inline in this version. Several editors have ignored the references when they appear as footnotes and delete the material 'as if' it were a statement of personal opinion.

''The practice of making specific grants of territory on the basis of the new state's acceptance of a minority rights treaty began with the Treaty of Berlin in the 1870s. Serbia, Montenegro, and Romania were the first examples. That practice was continued by Committee for New States and Minority Rights of the Paris Peace Conference, in 1919.

Li-ann Thio, a professor of international and human rights law at the National University of Singapore noted that many international law norms and customary practices developed in the inter-war years by the League of Nations are still in use today. She specifically addressed the procedures for managing intra-state and inter-ethnic issues through (1) International supervision;(2)supranational integration;(3)minority protection; (4)plebiscites; and (5)partitions. She cited the Palestine and Bosnian Partition Plans and 1990s European practice as examples of conditioning recognition of statehood on human rights, democracy, and minority protection guarantees. see the discussion on pages 97-98 and footnote 353 in Managing Babel: The International Legal Protection of Minorities in the Twentieth Century, Li-ann Thio, Martinus Nijhoff Publishers, 2005, ISBN 9004141987 ''

International Law and International Relations
International law is the standard of conduct for states in their reciprocal relations. The development of the American principle of "uti possedetis" of 1810, the related Monroe Doctrine of 1823 regarding non-colonization, non-intervention, and the proscription of territorial conquest and the non-recognition of all acquisitions made by force (announced by the First International Conference of American States in 1890) were emerging norms of state behavior by the late 19th century. All of those principles were routinely adopted in international arbitration agreements, and embodied in the Covenant of the League of Nations in articles 10, 21, and 22. see the Declaration of Reciprocal Assistance and American Solidarity for more historical details.

From the outset the policy of the member states, including the United States, regarding the trusteeship system was that the United Nations should administer most of the territories directly under international treaty agreements. see for example the State Department Briefing Book Papers Regarding The Establishment of the Trusteeship System

The United Nations Charter provided the General Assembly with the necessary authority to conclude international agreements and treaties for the administration of trusteeships, and to administer trusteeships directly. The United Nations could terminate mandates in cooperation with a mandatory, or otherwise. In the case of the Japanese mandates and the South West Africa mandate the UN terminated the mandates unilaterally. In an earlier ruling in the matter of the South West Africa mandate the ICJ advised that the mandatory could not terminate the mandate or annex the territory without the consent of the General Assembly.

In drafting trusteeship treaty agreements the Fourth Committee had to comply with the dictates of customary international law. A treaty that violated customary international law would have been void ab initio (invalid from the outset). Cutomary international law norms do not become mere recommendations simply because they are mentioned in the text of a General Assembly resolution.

Treaty Powers of the General Assembly and Security Council
Article 81

The trusteeship agreement shall in each case include the terms under which the trust territory will be administered and designate the authority which will exercise the administration of the trust territory. Such authority, hereinafter called the administering authority, may be one or more states or the Organization itself.

Article 83

1. All functions of the United Nations relating to strategic areas *, including the approval of the terms of the trusteeship agreements and of their alteration or amendment, shall be exercised by the Security Council.

Article 85

1. The functions of the United Nations with regard to trusteeship agreements for all areas not designated as strategic, including the approval of the terms of the trusteeship agreements and of their alteration or amendment, shall be exercised by the General Assembly.

2. The Trusteeship Council, operating under the authority of the General Assembly, shall assist the General Assembly in carrying out these functions.

* Strategic areas, i.e. occupied enemy territories.

Termination of The Mandate and the Trusteeship Decision (Corpus Separatum)
The Principle Allied and Associated Powers inserted a dispositive clause in Article 28 of the Palestine Mandate that required the establishment of a perpetual system of safeguards for the holy sites, religious rights, and the Muslim immunities that had been under international guarantee and supervision throughout the mandate period. Those provisions became operative only in the event that the mandate was to be terminated. See Article 28 of the Palestine Mandate. In the South West Africa Mandate Case the International Court of Justice noted that the mandates had always been regarded as treaties or conventions and the undertakings were binding obligations. See International Law Reports, Elihu Lauterpacht, Cambridge University Press, 1971, ISBN 0521463823, page 93.

The Peel Commission had recognized that same undertaking and recommended that the holy places of Jerusalem, Bethlehem, and Nazareth remain under League of Nations administration. see Foreign Affairs 1919-1937, Eugene Lewis Hasluck, READ BOOKS, 1938, ISBN 1406706108 Page 224. The Jewish Agency also recognized that international legal undertaking when it submitted its own plan of partition in 1946, which also called for international control of Jerusalem. see The Jewish Agency's Partition Plan, August 1946.

UN GAR 181(II) Listed in Tables of Treaties
The UN Secretariat noted that the General Assembly had established a formal minority rights protection system as an integral part of UN GAR 181(II) the 'Plan For The Future Government of Palestine'. It was cataloged during a review of minority rights treaties conducted in 1950. It is available via the Official Document System using Symbol: E/CN.4/367, 7 April 1950. See Chapter III "United Nations Charter and Treaties Concluded After the War".

The personal and property rights of the Arab and Jewish national minorities were placed under the protection of the United Nations. The enumerated rights cannot be altered without the consent of the General Assembly. Disputes involving interpretation or application are subject to the jurisdiction of the International Court of Justice. The new states merely acknowledge the international nature of the undertaking by making a Declaration.

The Chairman-Rapporteur of the UN Working Group on Minorities, Mr. Asbjørn Eide, advised in 1996 that no competent UN organ had made any decision which would extinguish the obligations under those instruments. He added that it was doubtful whether that could even be done by the United Nations. See the discussion in Justifications of Minority Protection in International Law, Athanasia Spiliopoulou Akermark, see Chapter 7 Minority Protections in the United Nations, 7.1 The Validity of Undertakings Concerning Minorities After The Second World War, pages 119-122.

UN GAR 181(II) is also listed in the Table of Treaties, on Page xxxviii, of Self-determination and National Minorities, Oxford Monographs in International Law, Thomas D. Musgrave, Oxford University Press, 1997, ISBN 0198298986.

Modern Day Relevance
The General Assembly request for an advisory opinion in the Consequences of the Wall case recalled "relevant General Assembly resolutions, including resolution 181(II) of 29 November 1947, which partitioned mandated Palestine into two States, one Arab and one Jewish".

Precursors to the Plan for the Future Government of Palestine
An authority on international law recently noted that international law norms developed in the inter-war years by the League of Nations are still in use today. She cited the Palestine Partition Plan as one of several examples of the European practice of conditioning recognition of statehood on human rights, democracy, and minority protection guarantees. see the discussion on pages 97-98 and footnote 353 in Managing Babel: The International Legal Protection of Minorities in the Twentieth Century, Li-ann Thio, Martinus Nijhoff Publishers, 2005, ISBN 9004141987

The Peace of Westphalia
The Westphalian concept of state sovereignty never included boundless discretion in matters related to treatment of national religious minorities. The principle of religious equality was placed as part of the peace under an international guarantee. see Essays on International Law and Organization, Leo Gross, BRILL, 1984, ISBN 0941320154, page 5

Serbia, Montenegro, and Romania
The practice of making specific grants of territory on the basis of the the new state's acceptance of a minority rights treaty began in the 1870s with Serbia, Montenegro, and Romania. see Defending the Rights of Others, Carole Fink, page 37.

A confidential report prepared for the US government in 1919 examined the restricted sovereignty of various states: "There are now in force a number of treaties in which the signatory powers have undertaken to guarantee the independence and territorial integrity of a particular State without at the same time imposing such restrictions upon it as to amount to placing it in the condition of a protected State."... ...Montenegro, Serbia, and Roumania received a guaranty of their independence when they were "recognized as independent" by the Congress of Berlin. In return for this recognition the signatory powers imposed upon those States certain restrictions upon the exercise of their new sovereignty which had in view the maintenance both of the domestic peace of those States and of the general peace of the Balkan Peninsula." - Guaranteed States on page 7-8 of 'Types of Restricted Sovereignty and of Colonial Autonomy', W. W. Willoughby, and C.G. Fenwick, 1919, Washington, U.S. Government Printing Office

The restrictions on the sovereignty of Montenegro included:

Art. XXVII (Treaty of Berlin). "In Montenegro the difference of religious creeds and confessions shall not be alleged against any person as a ground for exclusion or incapacity in matters relating to the enjoyment of civil and political rights, admission to public' employments, functions, and honors, or the exercise of the various professions and industries in any locality whatsoever. The freedom and outward exercise of all forms of worship shall be assured to all persons belonging to Montenegro, as well as to foreigners, and no hindrance shall be offered either to the hierarchical organization of the different communions, or to their relations with their spiritual chiefs. ...

...Art. XXX. "Mussulmans or others possessing property in the territories annexed to Montenegro, who may wish to take up their residence 'outside the principality, can retain their real property either by farming it out, or by having' it administered by third parties. No one shall be liable to be expropriated otherwise than by legal process for the public welfare, and with a previous indemnity. Types of Restricted Sovereignty and of Colonial Autonomy, page 61-62.

The Creation of New States At the Versailles Peace Conference
At the Versailles Peace Conference the Supreme Council established "The Committee on New States and for The Protection of Minorities". All the new successor states were compelled to sign minority rights treaties as a precondition of diplomatic recognition.see The Jews And Minority Rights, (1898-1919), Oscar I. Janowsky, Columbia University Press, 1933, page 342.

The Palestine Mandate contained similar minority protection clauses that provided for the jurisdiction of the International Court to resolve any dispute. Summary of the work of the League of Nations, January 1920-March 1922, League of Nations Union, 1922, page 4

Customary Public Law of Europe
French Prime Minister Clemenceau noted in an aide-memoire attached to the Polish treaty that the minority protections were consistent with diplomatic precedent: This treaty does not constitute any fresh departure. It has for long been the established procedure of the public law of Europe that when a State is created, or when large accessions of territory are made to an established State, the joint and formal recognition of the Great Powers should be accompanied by the requirement that such States should, in the form of a binding International convention undertake to comply with certain principles of Government. In this regard I must recall for your consideration the fact that it is to the endeavors and sacrifices of the Powers in whose name I am addressing you that the Polish nation owes the recovery of its independence. It is by their decision that Polish sovereignty is being restored over the territories in question, and that the inhabitants of these territories are being incorporated into the Polish nation.... ...There rests, therefore, upon these Powers an obligation, which they cannot evade, to secure in the most permanent and solemn form guarantees for certain essential rights which will afford to the inhabitants the necessary protection, whatever changes may take place in the internal constitution of the Polish State. Sovereignty, Stephen D. Krasner, Princeton University Press, 1999, ISBN 069100711X, page 92-93 Judge Sir Hersch Lauterpacht explained the legal effectiveness of the operation of this system of minority protections. He pointed out the Court's determination to discourage the evasion of these international obligations, and its repeated affirmation of "the self-evident principle of international law that a State cannot invoke its municipal law as the reason for the non-fulfillment of its international obligations." see The Development of International Law by the International Court, Hersch Lauterpacht, page 262

The Declaration
The Palestine question had been submitted for a recommendation under article 10 of the Charter. The UNSCOP committee had proposed a transition period under UN auspices, the termination of the mandate, and the establishment of a Corpus separatum under UN trusteeship.

Questions relating to the operation of the trusteeship system fall under the provisions of Article 18 of the Charter. That article stipulates that the determinations are 'decisions', not recommendations. Passage requires a two-thirds majority of the members present. In several cases involving the powers of the General Assembly with regard to trusteeships and mandates, the International Court has held that those decisions have legal effects which are binding or dispositive. see for example Principles of the Institutional Law of International Organizations, Chittharanjan Felix Amerasinghe, Cambridge University Press, 2005, ISBN 0521837146, page 174-175

The disposition of the Palestine mandate was not a matter falling within the domestic jurisdiction of any UN member state. The representative of the Jewish Agency, Moshe Shertok, acknowledged that fact: With regard to the status of Assembly resolutions in international law it was admitted that any which touched on the national sovereignty of the members of the United Nations were mere recommendations and not binding. However the Palestine resolution was essentially different for it concerned the future of a territory subject to an international trust.Only the United Nations as a whole was competent to determine the future of the territory and it's decision therefore had a binding force. April 27, 1948. UN Doc. A/C. 1/SR.A 127, para 7.


 * Note: by April 7, 1948 the Jewish Agency had implemented Plan Dalet. The text of that plan called for offensive military operations including unprovoked attacks on Arab villages outside the "borders of the Hebrew state".

The legal instrument was a unilateral Declaration made by the government of the new states. This was another established procedure. In the Minority Schools in Albania Case, the Permanent Court of International Justice held that Declarations made before the League Council were tantamount to a treaty.See International Human Rights in Context, Henry J. Steiner, Philip Alston, Ryan Goodman, Oxford University Press US, 2008, ISBN 019927942X, page 100

Like the earlier treaties, the Declarations conferred basic rights on all the inhabitants of the Jewish and Arab states without distinction of sex, nationality, language, race or religion and protected the rights and property of all nationals of the country who differed in race, religion, or language from the majority of the inhabitants of the country. The country concerned had to acknowledge the clauses of the treaty: as fundamental laws of State and no law, regulation or official action could conflict or interfere with their stipulations, nor could any law, regulation or official action prevail over them. The States also had to acknowledge these rights as obligations of international concern placed under the guarantee of the of the United Nations. Compromissory clauses were included granting the International Court jurisdiction.Protection of Minorities by the League of Nations, Helmer Rosting, The American Journal of International Law, Vol. 17, No. 4 (Oct., 1923), pp. 641-660 and United Nations General Assembly Resolution 181(II), Part I. - Future Constitution and Government of Palestine, C. Declaration

Uri Davis wrote about the constitutional stipulations contained in UN GAR 181(II). He explained that the Constitutions of both the Jewish State and Arab State were to embody, under the terms of the said Plan, Chapters 1 and 2 of the Declaration provided for in section C of the Plan. This Declaration contained fundamental constitutional guarantees regarding holy places, religious buildings and sites, religious and minority rights, citizenship, international conventions, and financial obligations. see Citizenship and the State: A Comparative Study of Citizenship Legislation in Israel, Jordan, Palestine, Syria and Lebanon, By Uri Davis, Garnet & Ithaca Press, 1997, ISBN 0863722180, page 86

Abba Eban subsequently made a declaration before the committee that the rights stipulated in section C. Declaration, chapters 1 and 2 of UN resolution 181(II) had been constitutionally embodied as the fundamental law of the state of Israel as required by that resolution and assured the committee that Israel would not invoke Article 2, paragraph 7 of the Charter, regarding its domestic jurisdiction. The instruments that he cited during the hearings were the Declaration of the Establishment of the State of Israel, and various cables and letters of confirmation addressed to the Secretary General. See for example The Palestine Question, Henry Cattan, page 86-87 and the verbatim record, FIFTY-FIRST MEETING, HELD AT LAKE SUCCESS, NEW YORK, ON MONDAY, 9 MAY 1949 : AD HOC POLITICAL COMMITTEE, GENERAL ASSEMBLY, 3RD SESSION. It is available via the UN Official Document System using Symbol: A/AC.24/SR.51, Date: 01/01/1949

The Cuban delegate was satisfied with Israel's reply and noted that:"The representative of Israel had given the assurance that, if that country were admitted as a Member, such matters as the settlement of frontiers, the internationalization of Jerusalem and the Arab refugee problem, would not be regarded as within its domestic jurisdiction and protected from intervention under the terms of article 2, paragraph 7 of the UN Charter."

Mr. Eban's explanations and Israel's undertakings were noted in the text of A/RES/273 (III), 11 May 1949. A similar Declaration of the State of Palestine, supplied by the Palestine National Council, was accepted as being in line with the General Assembly resolution in A/RES/43/177, 15 December 1988.

Territorial Intergrity Of Other States
The resolution also provided that: "The Constituent Assembly of each State shall draft a democratic constitution for its State. The Constitutions of the States shall embody Chapters 1 and 2 of minority rights treaty Declaration providing the United Nations certain guarantees for in section C below and include, inter alia, provisions for:"Settling all international disputes in which the State may be involved by peaceful means in such a manner that international peace and security, and justice, are not endangered;

Accepting the obligation of the State to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purpose of the United Nations;' see Article 2(4) of the UN Charter"

The Failure To Adopt a Constitution
Four days after UNSCOP held its first public hearings the Jewish Agency had signed a letter that came to be known as The Status-Quo Agreement.The Status-Quo Agreement, Israel in the Middle East: Documents and Readings on Society, Politics, and Foreign Relations, Pre-1948 to the Present, Itamar Rabinovich, Jehuda Reinharz, UPNE, 2007, ISBN 0874519624, page 57 It was addressed to the Ultra-Orthodox World Agudat Israel organization. It explained that the establishment of the State required the approval of the United Nations, and that this would not be possible unless the State guaranteed freedom of conscience for all of its citizens and made it clear there was no intention of establishing a theocratic State. Many political observers blame the religious parties and the (then) dominant Labor Zionist party, Mapai, for striking a bargain to dispense with a written constitution. The religious parties wanted to allow Orthodox rabbis to control marriage, divorce, and adoption. The agreement also provided that the state would honor the Sabbath, and that only kosher food would be served in state institutions. See for example For The Land and The Lord: The Emergence of Jewish Fundamentalism in Historical Perspective, by Ian S. Lustick, Council on Foreign Relations, 1988 and The Declaration has Two Faces: The Interesting Story of the ‘Zionist Declaration of Independence’ and the ‘Democratic Declaration of Independence’,” Tel Aviv Univ. Law Review 23 (2000)

The legal status of the guarantees regarding freedom of conscience and equality (in law, and in fact) that were incorporated in the UN minority rights declaration remain a source of controversy. see MKs debate protection of 'equality' in future constitution and Israel could become pariah state, warns report

The provisional government of Israel did not accept the border settlement contained in the partition plan: 'Regarding borders, we have decided to evade the issue... We neither reject nor accept the UN proposals. This issue has been left open to developments.' see David Ben-Gurion, the State of Israel, and the Arab World, 1949-1956, Zakai Shalom, Sussex Academic Press, 2002, ISBN 1902210212, page 150.

The Issue of Recognition and the Existence of the New States
A transition period under UN auspices started with the adoption of the resolution. Palestine had been recognized as a dependent state with its own nationality under the terms of the mandate and article 80 of the UN Charter. Transjordan had been recognized as an independent government throughout most of the mandatory period, but it had not been recognized as an independent state.see Foreign relations of the United States, Volume VII, 1946, page 796 The resolution called for the mandatory to evacuate a seaport and hinterland 'in the territory of the Jewish State', no later than 1 February 1948. That, and other references to the existence of the (still dependent) Jewish and Arab states prior to the termination of the mandate constituted forms of express or tacit recognition.

The General Assembly resolution provided powerful legal authority, See for example Hersh Lauterpacht's opinion International Law: Being the Collected Papers of Hersch Lauterpacht, Hersch Lauterpacht, Elihu Lauterpacht editor, Cambrige University, 1970, ISBN 0521212073, page 513 since it called upon the inhabitants of Palestine 'to take such steps as may be necessary on their part to put this plan into effect'. Many of those steps, like raising an armed militia to help prevent frontier clashes, are defined as 'Acts of State' according to customary international law. See for example Article 3 of the Montivideo Convention State recognition under that convention was irrevocable and could not be made provisional. Jacob Robinson advised the People's Council that the Jewish State was already in existence as a result of the 29 November 1947 resolution. Hersh Lauterpacht advised that the United Nations recognition involved rights and obligations that were irrevocable, notwithstanding difficulties or opposition to the plan on the part of some people. See Minutes of the People's Council and Articles 6 and 7 of the Montivideo Convention Judge Elaraby reached similar conclusions regarding the existence and recognition of the Palestinian State in an ICJ Advisory Opinion.

Uti possidetis juris
"Uti possidetis juris, as it stands at present, has been the result of development of two other principles: 1) self-determination and 2) noninterference in internal affairs of other countries. Both of these have their origin in Latin America at the beginning of the 19th century. The birth of uti possidetis and its first formal application in Latin America reflects the nature of the relations among Europeans themselves, on one side, and between them and the Latin American countries following the Napoleonic Wars (1815), on the other. Europe continuously interfered with the affairs of the Latin American countries in the search for terra nullius (no-man's land), later to become colonies. This interference was especially obvious following the Latin American independence (April 1810 – December 1824). Thereafter, the Europeans transferred the balance of power practice into Latin America. In order to divert frequent European interference, the Latin American leaders, after independence, accepted the uti possidetis juris principle in their mutual relationships (except Brazil until recent years). So, the territorial delimitation of the new sovereignties was based on the uti possidetis juris form, not uti possidetis de facto. This meant that the jurisdictions of these countries were confined along the former colonial administrative borders and there were no terra nullius in that part of the world. In this regard, the principle of uti possidetis preceded by a decade the Monroe Doctrine, proclaimed by the US President in 1823, concerning the noninterference in internal affairs of the American continent." - Self-Determination, Territorial Integrity and International Stability: The Case of Yugoslavia,  Prof. Enver Hasani, PhD, National Defence Academy, Institute for Peace Support and Conflict Management Vienna, February 2003, ISBN: 3-901328-81-5, pages 18-19

'In international legal terms, the only way to decolonize was through self-determination as a nation state. Indeed, several mutually supportive doctrines of international law existed to ensure this. These included the rules surrounding statehood and the investiture of international legal personality exclusively in the nation state—reinforced by doctrines such as uti possedetis— which ensured not only that the nation state form was “the only way to enter the world beyond and be recognized as a rightful player in it,” but also that the territorial definition of the new state remained the one bequeathed to it by the colonial powers.' ref The Postcoloniality of International Law, Harvard International Law Journal, Volume 46, Number 2, Summer 2005, Sundhya Pahuja, page 5. see Montevideo Convention for rules surrounding statehood and international legal personality

The resolution set new administrative internal boundaries and tasked a UN Commission with the job of delineation and demarcation. The transition plan called for the progressive withdrawal of the mandatory administration and its armed forces. The territory was to be turned-over to the administration of the provisional governments and their militias, acting under the supervision of the special UN Commission. The principle in international law of Uti possedetis de jure required that the new independent states have the same frontiers as the administrative territories from which they emerged. The General Assembly called upon the Security Council to maintain international peace and security, while preventing any attempt to alter the terms of the settlement by force.