USUN Files
Memorandum by Mr. Charles P. Noyes1 to the Deputy United States Representative on the Security Council (Jessup)
I agree with the conclusion in your memorandum of May 5 that it is important if not urgent for us to have a clear legal position as to the status of Palestine on May 15 under the various possible sets of [Page 910] circumstances which may exist. I also agree that the Department’s legal memorandum solves few if any of these problems.
It seems to me that it is helpful to consider our legal difficulties from the practical point of view. Whatever the technical legal position may be, it seems to me clearly impractical for us to attempt to base our policy after May 15 upon the legal position that the United Kingdom has no right to, and therefore has not laid down its mandate. Insistence on this position would bring us into direct contradiction with the British, with all supporters of partition, including the Jews, and probably with a number of other States who sympathize with the British. In fact I doubt whether we would receive any substantial support for our position. In practical terms, the British will have gotten out; will cease to exercise any control; and those who disagree with our legal position, particularly pro-partitioners, will act on the basis of their own theory, namely, that the Jews have a right to set up a State of their own. I can see no practical advantage whatever, and grave disadvantages, in attempting to assert this legal position, whatever its inherent merits.
It seems to me that it would be even less practicable and wise for us to stand on the legal position that when the mandate is terminated the United States, France and the United Kingdom succeed to the sovereignty. It is certainly late in the day for us to attempt to put this legal principle forward. We probably waived it in agreeing to the partition decision last fall. We shall certainly face a refusal by the British to agree to this and probably also a refusal by the French. Again, all the pro-partitioners, including the Jews, will oppose it vigorously. And finally, it seems to me, very doubtful that the United States should attempt to assume responsibility for events in Palestine which the acceptance by the Assembly of such a legal theory would entail. In any case, in my view we would stand no chance whatever of having our position accepted and, in my opinion, the advantages, if any, of taking this position are far outweighed by the disadvantages, regardless of the inherent correctness of the legal position.
The third and fourth hypotheses you mention, it seems to me, are based on the same legal principle, namely, that when Britain declares the mandate terminated, Palestine becomes an independent country in the same way that Iraq, Syria, Trans-Jordan, etc., have done. Of course if a trusteeship is approved, the country would not become independent. This outcome does not now seem to be likely.
It seems to me that whatever the legal merits may be, the United States will, because of the practical necessities of the case, acquiesce in the legal principle that Palestine becomes independent on May 15. I would assume that whatever arrangements the General Assembly may make for a truce, or for any other provisional regime along the lines of the British suggestion, the legal position would be the same, namely, [Page 911] Palestine would be an independent country.2 Sovereignty would therefore lie with the people. It will therefore be legally permissible on the 15th or 16th for the Jews to declare a Jewish state in their area and for the Arabs to declare an Arab State over the whole of Palestine. It seems that it is certain this will be done unless a truce along the lines of the Security Council truce is worked out. Most of the legal problems that will arise after the 15th will depend upon the question of recognition by the members of the United Nations of these two States. It may be assumed that all the Arab States, including some of the other Moslem countries at least, will immediately recognize a Palestinian Government over the whole of Palestine. It may also be confidently assumed that the Russian group plus some South American States and possibly other strong pro-partitioners will immediately recognize a Jewish State. It is likely that these two groups will then proceed to make arrangements for economic and military support for the State which they have recognized.
If this analysis of what will happen is substantially correct, supporters of both sides in the Security Council and the General Assembly will attempt to justify what they are doing from the legal point of view by reference to the fact that they are dealing with the recognized government of part or all of Palestine and that any military or other action which they may be taking is at the request of that Government and therefore is not in any sense an act of aggression or otherwise a violation of the Charter. Until there is some determinative decision as to which side is correct, both are in the position of acting under color of legal arrangements. It may well be that neither the Security Council nor the General Assembly will be in a position to muster sufficient supporters for any determinative decision on this question, or any other resolution directed at either side in the dispute. For example, the Russians in the Security Council would almost certainly veto any proposal which is directed against the Jews or which would prevent the Russians from having free access to the Jewish State either for men or munitions. On the other hand it is not likely that the Council would be able to get seven votes for a resolution directed against the Arabs in view of the position taken by the Syrians, Colombians, Argentinians and Chinese. Similarly, it may be that neither side could obtain a two-thirds vote in the General Assembly against the other. The legal problem hence becomes merged in a political problem. It seems highly unlikely in this kind of a situation that the legal question ever would be determined by the International Court. It will probably in the end be determined by political considerations, and the test may be the number of United Nations which eventually recognize the Jewish State or a single Arab State.
[Page 912]If the United States decides to acquiesce in the legal principle that Palestine will at the termination of the mandate become independent, it seems to me of urgent importance that it should determine what its policy will be with regard to the recognition of a single State or two States. Even if all of the present efforts to find agreement between the parties are successful, we shall probably have to face that policy decision.