The preface opens the book with a commentary on the organic relationship shared between the United Nations Organization and the question of Palestine. It does so through a brief discussion of the 1948 Reparations Case, in which the International Court of Justice affirmed the international legal personality of the United Nations arising from the assassination of Count Folke Bernadotte, the United Nations Mediator for Palestine

Rather than within the UN system itself, the origins of Palestines international legal subalternity are located in British secret treaty-making and diplomacy between 1915 and 1947, particularly as institutionalized within the League of Nations system. Although the literature on the history of Palestine in this period tends to focus on political themes, this chapter examines this period through the cross-cutting theme of the Eurocentricity of international law and organization then prevailing. It is set against the backdrop of the global paradigm shift then occurring in the international system, from one based on the norms and values of the late-imperial age grounded in an international rule by law, to one based on those of an emerging liberal western rights-based discourse, ostensibly based on an international rule of law. The main systemic issue that emerges for Palestine at this time is its contingent and subaltern status in the international legal order, a status that was eventually placed before the UN in 1947.

The introduction provides the book’s framework. The UN is regarded as the guardian of the rules-based international legal order, but it is often not faithful in discharging this role. Building on the Third World Approaches to International Law school of thought, the chapter argues the existence of ‘international legal subalternity’ – a condition that marks the relationship of the global south with international law from its modern European origins to the present day. This condition is marked by the UN’s repeated representation of international law as a means through for historically disenfranchised peoples to achieve justice, but which is perpetually kept out of reach. International legal subalternity is the result of the creation and use of international law as a tool by hegemonic power, the manifestation of which is the production and reproduction of global subaltern underclasses who have little or no say in the substantive formation or application of the law that purports to govern them. The UN’s management of the question of Palestine most aptly illustrates this, as a critical examination of key moments from 1947 to the present will demonstrate.

Under international law, occupation is meant to be temporary and occupying powers cannot be sovereign in the territory they occupy. In contrast, since 1967 Israel has systematically altered the status of the OPT with the aim of annexing it, de facto or de jure. During this time, though the UN has focused on documenting the legality of a range of individual violations of international law by the occupying power, scant attention has been paid by the Organization to the legality of the occupation regime as a whole. Emphasis has instead been placed on encouraging the parties to bring the occupation to an end through continued, though widely discredited, bilateral negotiations. By what rationale can it be said that Israels occupation remains either legal or legitimate in the absence of good faith on its part in negotiating the occupation’s end? How can its end reasonably be made contingent on negotiations between occupier and occupied? This chapter argues that the UN’s failure to take a more principled position on the very legality of Israel’s half-century ‘temporary’ occupation of the self-determination unit of the Palestinian people is demonstrative of the maintenance of Palestine’s legal subalternity in the UN system, under a different guise.

This chapter revisits UN General Assembly resolution 181(II) recommending the partition of Palestine. It undertakes critical international legal analysis of the resolution with reference to the work of the United Nations Special Committee on Palestine whose report formed the basis of the resolution. Contrary to the traditional historiography, this chapter posits that the resolution was neither procedurally ultra vires the General Assembly, nor were its terms substantively consistent with prevailing international law as regards self-determination of peoples. Set against the larger context of the international legal status of Palestine from WWI to the end of the British Mandate, this chapter argues that resolution 181(II) was the opening act in the reification of Palestine’s legal subalternity within the newly minted UN system. It demonstrates that the resolution was an embodiment, in legal terms, of the lingering tension between the rule by law of late-European empire and the ostensible rule of law of the post-WWII era. It also shows that the resolution helped hasten the dissolution of Palestine and the dispersal of its people, the consequences of which remain with us today.

This chapter concludes this book by summarizing its principal findings and situating them in the larger context of the questions posed at the outset. Rather than the international rule of law ordering principle, it is the international rule by law principle that finds express and sustained illustration in the UN’s management of the question of Palestine. This phenomenon is rooted in the clash between hegemonic and subaltern interests that produce and reproduce situations in which the promise of international law is repeatedly presented as the basis of international legitimacy and peaceful coexistence among a citizenry of formally equal nation-states, but which relegates non-self-governing peoples and other subaltern societies to partial and qualified access in the system. The result is the presence of international legal subalternity as a long-range condition, a fixed feature of the international order with wider relevance for a variety of other subaltern actors and regions.

The postscript concludes with a discussion of General Assembly resolution 77/246 of 30 December 2022, passed while this book was entering production. The resolution requests the International Court of Justice for an advisory opinion on the legal status of Israel’s continued presence in the Occupied Palestinian Territory in line with the research presented in Chapter 5. As the opinion of the Court is to be given after the publication of the book, this update looks to this recent development as the latest attempt by Palestine to resort to the counter-hegemonic potential of international law with results as yet unknown

This chapter critically examines Palestine’s unsuccessful 2011 UN membership bid. It examines the report of the UN Committee on the Admission of New Members which, under US pressure, could not unanimously recommend Palestine’s membership to the Security Council after examining whether Palestine satisfied the criteria for membership as set out in article 4(1) of the UN Charter. Propelled by this unsuccessful bid, Palestine turned to the General Assembly which upgraded its status to that of a non-Member Observer State in 2012. Although the legal consequences of this upgrade have been considerable, including allowing the State of Palestine to accede to a host of international treaties and multilateral organizations, its juxtaposition against the refusal of the Committee on the Admission of New Members to recommend membership to the Security Council in accordance with the international rule of law is demonstrative, yet again, of the international rule by law principle at work. Although the UN has allowed for a gradual and qualified recognition of Palestinian legal subjectivity over time, its failure to provide the legal and political foundation upon which those rights may actually be realized, namely membership in the Organization, has continued to disenfranchise Palestine and its people.

This chapter critically examines the distinctive institutional and normative regime created by the UN for the Palestinian refugees in the immediate aftermath of the Nakba in the form of the United Nations Conciliation Commission for Palestine and the United Nations Relief and Works Agency for Palestine Refugees in the Near East. It juxtaposes that regime against the international institutional and normative regime applicable to all other refugees in the world, as administered by the United Nations High Commissioner for Refugees. The special regime for Palestinian refugees is widely regarded as reflective of the UN’s unique responsibility for their plight. Yet, a critical examination of the UN record on the early history, mandate, and regulatory framework underpinning this regime reveals that it was never intended to give effect to Palestinian refugee rights as established under prevailing international law, including as affirmed by the UN itself. The resulting ‘protection gap’ that has consequently emerged for Palestinian refugees, marked by uneven and confused state practice concerning their plight as well as ongoing gender discrimination against them by the UN, is demonstrative of the Organization’s role in the maintenance of Palestinian legal subalternity on the international plane.