501.BB Palestine/2–348

The Director of the, Office of United Nations Affairs (Rusk) to the United States Representative at the United Nations (Austin)

confidential

My Dear Senator Austin: The attached memorandum contains a draft telegram on the question of the acceptance by the Security Council of its responsibilities under the General Assembly Resolution on Palestine. In order to avoid sending broadly phrased instructions without direct reference to the problem presented to the Security Council, it was decided that I should furnish you the attached draft for your information. The Department may convert this draft into an instruction or it may separate out certain points raised therein for more precise instructions in the light of the questions presented to the Security Council.

I appreciate that this is a somewhat unusual procedure but I am confident that you will understand the difficulty in general instructions at this point.

Sincerely yours,

Dean Rusk
[Enclosure]

Draft Telegram to USUN

In light of probability that Palestine Commission will submit report to SC early in Feb, following are Dept views on question of SC acceptance of its responsibilities under GA resolution Nov 29, 1947 on “Future Government of Palestine”:

Conclusions

1.
Resolution of GA is request to SC which the SC can accept in whole or in part.
2.
GA request to SC has two principal aspects:
(a)
Request that SC take measures provided for in plan necessary for its implementation. These include:
(1)
Guidance to commission in administration of plan (IB2);
(2)
Action if Provisional Council of government cannot be selected by April 1, 1948 by either state (IB4);
(3)
Instructions to Commission (IB14);
(4)
Receipt of reports from Commission (IB14–15). SC under its general powers set forth in Art 24 of Charter has full present authority to assume responsibilities devolving upon it under plan without specific determination of threat to peace or other jurisdictional prerequisite to SC action.
(b)
Second aspect of GA request relates to SC action in event Council finds situation in Palestine constitutes threat to peace and request that SC should regard any attempt to alter by force settlement envisaged in plan as threat to peace, breach of peace or act of aggression. As to these requests, SC should take no, action until occasion arises, nor should it determine in advance that a given act constitutes a threat to peace without examination of all surrounding circumstances at the time.
3.
Accordingly SC should by appropriate resolution accept para (a) of GA request and assume responsibilities devolving upon it under plan and take note of paras (b) and (c) of GA request with understanding that these requests should be given due consideration in any determination by SC of whether situation in Palestine constitutes a threat to peace or whether a breach of peace or act of aggression has occurred, and in action to be taken by SC on basis of such determination.

Discussion

i. implementation of plan of partition

1.
Resolution of GA has established a GA commission to assume transitional responsibility for implementation of plan of partition. Measures of commission to implement plan are to “become immediately effective unless commission has previously received contrary instructions from SC.”
2.
GA recognized that implementation of plan might involve problem affecting international peace and security. To give effect to SC’s primary responsibility in field of international peace and security GA addressed a series of requests to SC envisaging its cooperation in implementation of plan by commission.
[Page 591]

ii. present status of ga resolution in sc

In its 22nd meeting on Dec 9, 1947 SC approved following position enunciated by President: “The SC having received the letter from the Secretary General enclosing the resolution of the GA concerning Palestine, and being seized of the question, decided to postpone discussion.” Accordingly Palestine question is now on list of matters of which SC is seized in accordance with Rule 11 of its Rules of Procedure.

iii. basis of sc jurisdiction in respect of ga resolution

Basis of activities envisaged by GA resolution for SC in taking measures necessary for implementation of plan is Art 24 of Charter under which Members of UN” confer on SC primary responsibility for maintenance of international peace and security. Same article of Charter was invoked and accepted by SC (with Australia abstaining) in connection with assumption of responsibilities under annexes to Italian Peace Treaty relating to creation and government of Free Territory of Trieste. In that case SC adopted resolution recording its approval of instruments relating to Trieste and “its acceptance of responsibilities devolving upon it under the same,” See SC meeting Jan 10, 1947.

In respect of paras (b) and (c) of GA request, SC should, of course, take note of Assembly’s resolution; but its responsibilities under those: parts of resolution stem from its responsibilities under Chapters VI and VII of Charter rather than from GA.

SC has under Charter a duty to consider whether any situation involving maintenance of international peace and security constitutes threat to peace or breach of peace and if such a determination is made has duty to take such action or make such recommendations as are necessary to maintain or restore international peace and security. Request of GA contained in para (b) of resolution does not enlarge or restrict responsibilities or authority of Council in this regard. If SC does determine that situation in Palestine constitutes a threat to peace, it may take such further action under any of Articles in Chapter VII as it deems necessary. Para (b) of GA resolution expressly mentions only Arts 39 and 41 of Charter under these circumstances. This cannot be regarded as limitation on SC’s power to take measures under any Articles in Chapter VII.

Moreover, it would be inappropriate for SC to decide in advance that any attempt to alter by force settlement envisaged by plan should be regarded as threat to peace, breach of peace or act of aggression. [Page 592]Such determination by Council should be made after examination of acts themselves and in light of surrounding circumstances prevailing at the time.