Palestine Never Had a Chance for Statehood, Legally Speaking, an Expert Argues

Did Palestine ever have a chance to gain its full rights as a state? In his new book, “The United Nations and the Question of Palestine: Rule by Law and the Structure of International Legal Subalternity,” Ardi Imseis delves into the history and legal questions on how the United Nations has tried to manage the status of Palestine. Imseis’s argument describes the history of the UN’s interaction with the territory, suggesting that their actions often reinforced Palestine’s subjugation and its people through the international system.

“Palestine and its people have been barred from the full realization of rights that the UN itself asserts are their natural and inalienable rights,” said Imseis in an interview with PassBlue. “This work is an attempt to account for why and how this has happened, and what implications Palestine’s example has for the rest of the global underclass.”

Imseis is a Canadian professor of law at Queen’s University in Ontario. He has also served in the UN system in various roles, including as a member of the UN Group of Eminent Experts on Yemen (2019-2021); head of the UN Relief and Works agency for Palestinian refugees’ (UNRWA) legal office, in East Jerusalem (2007-2014); and as a senior policy adviser at its Gaza City base (2002-2006).

PassBlue corresponded with Imseis by email about the core arguments he makes in his book. The interview was done in February. It has been edited and condensed. — DARSEN HOVER

PassBlue: In your book, you argue that the UN has helped legitimize Palestinian subjugation in the international system. Can you describe how this happened and how it has affected Palestine’s current position in the UN?

Imseis: It’s a touch more nuanced than that. For all the scholarship written on the United Nations, on the one hand, and on Palestine and international law, on the other, it is surprising to find that there has yet to be a sustained and critical book written on the United Nation’s management of the question of Palestine. I have tried to present such a book here. Its starting point is the widely held representation and belief that the UN is the standard bearer of the rules-based international legal order. This is something that has regularly been proclaimed by a succession of Secretaries-General of the Organization, to say nothing of being propagated throughout the UN Charter system. But based upon a close examination of the UN record, as well as my own first-hand career as a UN official in occupied Palestine, my book interrogates this received wisdom by demonstrating that there exists a vacillating gulf between what international law requires and what the UN has actually done on the question of Palestine when it has mattered most. The forms this gulf has taken have been varied. They include both actions and omissions, they cover a variety of subsets of international law and practice, and they span an unusually long period of time, from 1947 to the present. Despite the breadth and expanse of this sordid story, it is marked by a singular experience of Palestine and its people: to have been consigned to a seemingly permanent state of deprivation and disenfranchisement in the international legal order.

This state has manifested itself in a series of anomalous and iniquitous legal “moments.” This includes the 1947 UN plan of partition, the distinctive institutional and normative regime established by the UN in 1949 to protect and assist Palestinian refugees, the failure by the UN to definitively affirm the illegality of Israel’s continued presence in the occupied Palestinian territory since 1967, and the failure of the organization to grant the State of Palestine full membership in 2011. What these moments show is that despite the paradigmatic shifts in international affairs and the UN since 1947 — from the age of late empire, through decolonization, etc. — Palestine and its people have been barred from the full realization of rights that the UN itself asserts are their natural and inalienable rights. This work is an attempt to account for why and how this has happened, and what implications Palestine’s example has for the rest of the global underclass.

PassBlue: Do you think that the UN’s failure to uphold international law in the case of Palestine is an anomaly, or do you argue that it indicates more structural flaws within the institution?

Imseis: Initially, I had thought that Palestine’s contingent plight within the United Nations and, more generally, the international legal order was exceptional. To be sure, there are many exceptional things about it, not least the issue of time. The prolonged nature of the violation of Palestinian self-determination, forced exile of the Palestinian refugees, and occupation of the Palestinian Territory (OPT) since 1967, are unparalleled in the modern age. But the more I examined the UN record, the more I could see patterns and lessons that Palestine has for the broader international community. Through a critical international legal account of the UN’s engagement with the issue, I argue that Palestine and its people embody a condition that I call “international legal subalternity” [ILS], the essence of which implicates the United Nations as having systematically held itself and the rules based international legal order out to the global underclass as the only path to justice, but paradoxically withholds the realization of such justice through its own actions.

To my mind, the ILS condition appears to be a fixed feature of the international legal order, one that cannot be eradicated. This derives from the fact that although some change in international law can be brought about through the creative use of elements of that law to challenge it on its own terms, new subalterns invariably emerge whose situation is not addressed by the new law. What we are left with is a cycle of law-making and law-challenging that transfers the burden of legal contingency from one group to another, but never really eradicates it. This is why I have concluded — on the basis of the example provided by the UN’s management of the question of Palestine over various time periods and political paradigms — that international legal subalternity is a long-range condition and a fixed feature of the international legal order.

PassBlue: You say in your book that advocating for a two-state solution is not aligned with the core principles of international law. Why do you say that and where does it leave Palestinians’ quest for statehood, given the current realities?

Imseis: I argue that the two-state solution as originally envisioned by the General Assembly through its resolution 181 of 29 November 1947 did not accord with the then-prevailing principles of international law. This is different than asserting that the two-state solution is today not aligned with international law. And that is the problem. The partition plan led to the imposition of the two-state paradigm on the indigenous people of Palestine without their consent, and which would thereafter underpin the UN’s position on the question of Palestine. Based on the UN record, I determined that partition violated the prevailing law and practice on self-determination of peoples in class A mandated territories, and it displayed a clear contempt for principles of democracy and consent of the governed. The result was for the UN to have reinforced Palestine’s contingent status on the international legal plane, with consequences that helped pave the way for the 1948 Nakba.

To appreciate this, one must examine the terms of the partition plan. It is widely known that Resolution 181(II) provided for the partition of Palestine into an Arab State and a Jewish State in economic union, with the city of Jerusalem established as a separate entity to be administered by the UN. Under the plan, both states were required to adopt democratic constitutions, establish government on the basis of universal suffrage, and guarantee to all persons equality before the law. But the devil was in the details. Territorially, the plan allotted the Jewish State approximately 57 percent of the total area of Palestine, including its most fertile land, despite the Jewish settler population comprising only 1/3 of total of the country. The Jewish settler population also possessed registered ownership of only 5.6 percent of Palestine and was eclipsed by the Arabs in land ownership in each of Palestine’s 16 sub-districts.

Demographically, although the proposed Arab State would include a clear majority of approximately 725,000 Arabs to 10,000 Jews, the proposed Jewish State would contain a total population of 1,080,800, consisting of 509,780 Arabs and 499,020 Jews. This meant that minority rule would prevail in the purported Jewish State from the outset. This says nothing of the fact that, in its own words, the UN granted the Jewish State “the more economically developed part of the country,” while openly admitting that the economic viability of the proposed Arab State would be “in doubt” from the start. Putting it kindly, resolution 181(II) was a glaring anomaly under prevailing international law.

Put simply, partition could never be legal without the freely expressed consent of the governed, and in Palestine the vast majority of the population outright refused partition as an abomination of international law and their right to self-determination vis a vis the European settlers in their midst. Examination of the UN record, in the form of the public and private meetings and report of the UN Special Committee on Palestine (UNSCOP) as well as the General Assembly debates that followed, demonstrates that partition was not based on these international legal considerations. Rather, it was driven by powerful European states and their settler-colonial affiliates. The UN record reveals that the declared goal of these states was to rectify Europe’s centuries-old Jewish question in the wake of the Holocaust and to do so at the expense of the innocent third-party Palestinians.

This has meant that the Palestinian quest for independent statehood has been hampered by action of the UN from the start. This was underscored by the Palestine Liberation Organization’s (PLO) recognition of Israel in 1988 and, with it, Palestinian acceptance of the political legitimacy of the partition plan of 1947. This historical compromise by the PLO was notable for the fact that its adherents had no part in fashioning resolution 181(II)’s terms, but were compelled to accept them as a quid pro quo for the achievement of a modicum of their national rights; and this in only half of the territory allotted to it under resolution 181(II), being the OPT. Nevertheless, as is widely known, in view of the fact that the Israeli occupation of the OPT remains in place almost 57 years after it began, it appears that the Palestinian recognition of the partition plan may have turned out to be a Faustian bargain of sorts.