Neither the Palestinians nor the Arabs have ever accepted the resolution for the partition of Palestine. They considered it to be invalid and of no effect. Their attitude is based upon political, historical and juridical considerations.
Not only Palestinians and Arabs consider the UN resolution for the partition as invalid, everyone fails to see on what legal basis a UN resolution, which is of no effect, could subsequently and retroactively acquire legal effectiveness.
The first ground of invalidity of the resolution lies in the incompetence of the General Assembly of the UN to recommend the partition of Palestine or to create the Jewish State in that country. The legal position is clear in this regard. The UN is an organization of States, which was formed to perform certain purpose defined in the Charter. At no time did this organization possess any sovereignty or any other right over Palestine. Accordingly, UN possessed no power to decide the partition of Palestine, or to assign any part of its territory to the religious minority of alien immigrants in order that they might establish a State of their own. The UN could not give what it did not possess. Neither individually, nor collectively could the members of the UN alienate, reduce or impair the sovereignty of the people of Palestine, or dispose of their territory, or destroy by partition the territorial integrity of their country.
The UN also did not possess any power to administer the country. And the Charter of the UN did not give the organization any right of supervision over exiting mandates. The General Assembly, however, paid no heed to this fact. It might possibly be argued that the General Assembly could deal with the Palestine question since it was placed on its agenda as a result of a request made by the Mandatory Power for the recommendations to be made under Article 10 of the Charter concerning the future government of Palestine.
However, the power given by Article 10 to the General Assembly to discuss any question or matter within the scope of the Charter cannot be enlarged so as to imply the power to break up the territorial integrity of a State or to create a new State. The General Assembly possesses no power to prescribe the future form of the government of Palestine, a matter that was the sole concern and within the exclusive competence of the people of Palestine. Such recommendations, unless accepted by the original inhabitants of the country, possess no juridical value or obligatory force. Since the majority of the inhabitants of Palestine have unequivocally expressed their opposition to partition, the resolution of the partition of Palestine was therefore ultra vires and invalid.
Further more, the resolution of the partition of Palestine constituted an encroachment upon the sovereignty of the people of Palestine. This encroachment not only was contrary to principles of law but also constituted a violation of Article 2(7) of the UN Charter, which declares that nothing contained therein shall authorized the UN to intervene in the matters that essentially fall within the scope of domestic jurisdiction of any State.
Another ground of invalidity of the partition resolution is that it violated the principles embodied in Article 22 of the Covenant of League of Nations and in the Charter of the UN. This violation was emphasized in the report of Sub Committee 2 to the Ad Hoc Committee of the Palestine Question. The UN has no power to give effect to the partition resolution because UN is bound by the Article 1 of the Charter to act in conformity of the principle of justice and international law and to respect the principle of equal rights and self determination of the peoples.
Under Article 73 concerning non self-governing territories and mandated areas the UN undertakes to promote to the utmost the well-being of the inhabitants of these territories and to take due account of the political aspirations of the peoples. The imposition of the partition of Palestine against the express wishes of the people of Palestine can in no way be considered as respect for or compliance with any of the above-mentioned principles of the Charter. In accordance with the principles of self-determination of peoples recognized by the Charter, the people of Palestine were entitled to affirm their national identity and to preserve the integrity of their territory. The carving out of the substantial area of Palestine for the creation of the Jewish State and the subjection of parts of the original inhabitants of its dominion was a patent violation of this principle.
One might perhaps argue that the existence of a Jewish minority in Palestine changed the situation. The answer is obvious. What country does not possess in its midst a religion or racial minority? Nowhere is the world can a dismemberment of a country be recognized as a legitimate method for guaranteeing the rights of a minority.
In 1946 the total population of Palestine amounted to 1,972,000 inhabitants, comprising 1,203,000 Muslims 145,000 Christians and 608,000 Jews. Only one-tenth of these Jews were part of the original inhabitants and belonged to Palestine. In fact, the original Jewish Palestinian community did not favour partition or the establishment of the Jewish State. The rest of the Jewish population was composed of the foreign immigrants, originating mostly from Poland, former USSR and Central Europe. Only one-third of these Jewish immigrants had acquired the Palestinian citizenship.
In terms of the land ownership, the Jews owned only 5.6 percent of the total Palestinian land, and, in contrast, the Arabs owned 47.8 percent of the total land and the rest comprise the public domain.
What did the partition plan do? It attributes to the Jews who were less that one third of the population, largely foreigners and owned less the 6 per cent of the land an area exceeding 14,500 sq km and representing 57 percent of the area of the Palestine. This meant that the Jews were given the territory, which was ten times the area owned by them in the whole of Palestine. Moreover, the territory allocated to the Jewish State included the coastal plain extending from Acre to Isdud and other fertile lands, while the Palestinians were left with mountainous and sterile regions. In other words, it was not a partition, but spoliation. Its enquiry is obvious.
It is evident that the grounds of nullity of the partition resolution, which we have reviewed, vitiate such a resolution and make it null and void. The partition resolution was essentially a political decision, which was conceived, engineered and adopted through the efforts and pressures of the Zionists and their friends in violation of the principles of law, justice and democracy.
The nullity of the partition resolution should not be dismissed as a matter of the past. Although ethically wrong, and legally void, these grave acts are still producing their effects. The present abnormal and explosive situation, which exists in Palestine and in the Middle East, is directly related to the Balfour Declaration, to its implementation under the mandate, and to its realization in the partition resolution. n
