L Files

Memorandum by the Legal Adviser ( Gross ) to the Director of the Office of United Nations Affairs ( Rusk )

The attached memorandum,1 dealing with questions concerning the legal status of Palestine, reaches the following general conclusions:

The Principal Allied and Associated Powers held and exercised the legal power to dispose of Palestine following World War I.
Under the mandate which Great Britain accepted, Great Britain was empowered, and accepted responsibility, to complete the tutelage of Palestine in order to bring the people of that country to attainment of full independence, which had been provisionally recognized in the Covenant of the League of Nations.
When it considered the Palestine problem at the request of the Mandatory, the United Nations General Assembly recommended a particular plan to be adopted in bringing to a conclusion tutelage by the Mandatory. This plan was to be put in effect by action of the Mandatory, of United Nations organs, and of groups in Palestine.
The Security Council is not empowered to alter the November 29, 1947 resolution of the General Assembly. While that resolution stands, groups in Palestine are authorized, and the Palestine Commission is required, unless the Security Council has taken action pursuant to Chapter VI or Chapter VII of the Charter recommending a political settlement other than that recommended by the General Assembly, to take the steps contemplated in the resolution for implementing the partition plan, Great Britain having stated its acceptance of the plan and acquiescing in its implementation.
If, for any reason, in particular because of developments not anticipated when the General Assembly made its recommendation—such as violent opposition in Palestine, frustration by the Mandatory, inaction of the Security Council—the recommended plan appears unworkable, the General Assembly may repeal or alter its recommendation.
Under articles 73 and 80 of the Charter of the United Nations, Great Britain has responsibilities with respect to Palestine which Great Britain must observe. Great Britain cannot discharge its obligation by disclaiming its trust. Great Britain’s responsibilities continue until its tutelage of Palestine is completed as, for example, by the orderly, working out of the General Assembly recommendation, or by a trusteeship for Palestine under the United Nations Charter.
If the Mandatory should disclaim its trust by prematurely abandoning the mandate, questions might be raised as to the existence of legal continuity for the governing of Palestine, if at that time the General Assembly had repealed its recommendation. United Nations organs would, nevertheless, have their customary prerogatives and duties under the Charter.
If the state or states having authority to provide a government for Palestine took no action, and the organs of the United Nations likewise remained paralyzed, there would be an absence of constituted authority in Palestine, which would leave the way open for the growth of one or more local agencies of administration. These might assume a governmental character and secure international recognition, thus achieving status as members of the family of nations, with corresponding rights and duties.

Ernest A. Gross
  1. Dated March 19, by Leonard C. Meeker of the Office of the Legal Adviser, not printed.