The attached memorandum discusses, from the legal point of view, the
question of recognition by the United States of the existence of a new
state or states in Palestine after May 14, 1948, and the question of
extending diplomatic recognition to a government or governments in the
new state or states. The memorandum reaches the following conclusions on
the basis of the facts presently existing:
[Annex]
Memorandum by the Legal Adviser (
Gross
) to the Under Secretary of State (
Lovett
)1
[
Washington
,] May 13, 1948.
Recognition of Successor States in
Palestine
The possibility exists that the Jewish Agency for Palestine will
proclaim a Jewish state in part of Palestine on May 15, 1948, and
that the Arab Higher Committee will at the same time proclaim an
Arab state for all of Palestine. The present memorandum considers
from the legal point of view what the attitude of the United States
should be toward recognition of one or both of these states and
their respective governments. It is assumed, for present purposes,
that the United Nations General Assembly will not repeal its
Palestine resolution of November 29, 1947; if the General Assembly
were to do so, presumably its action would be taken under
circumstances of a truce and provisional settlement for Palestine
which would obviate the proclamation of any new state in Palestine
with a new government.
Recognition of a new state.
If Jewish and Arab states were proclaimed in Palestine, the problem
of recognition in relation to them would be first a problem of
recognizing the existence of a new state or states—a question
separate from the extension of diplomatic recognition to a new
government. Premature recognition of a new state’s existence within
the territory of a previously existing state is wrongful in
international law because such recognition constitutes an
unwarranted interference in the affairs of the previously existing
state. The present memorandum is limited to consideration of the
legal question, and does not concern the political question whether
the existence of a new state ought to be recognized. If the United
States is legally free to recognize the existence of a new state, it
is entirely a question of policy whether recognition shall be given
or not.
We have now to consider whether recognition of the existence of any
new states in Palestine would constitute an international tort
against any previously existing state. This inquiry calls first for
a determination concerning the legal status of Palestine just prior
to the proclamation of any new states in that country. The whole
territory of Palestine, including the Trans-Jordan, was detached
from the former sovereign, Turkey, in the World War I peace
settlement. A Class “A” mandate for Palestine, under Article 22 of
the Covenant [Page 961] of the League
of Nations, was conferred on Great Britain by the Principal Allied
and Associated Powers. The mandatory power was given general powers
of administration over Palestine. The mandate could be altered by
Great Britain with the consent of the Council of the League of
Nations, or could be terminated by completion of the tutelage of
Palestine by Great Britain and the grant of full independence to the
people of Palestine as contemplated in Article 22 of the League
Covenant.
On April 2, 1947 Great Britain asked the General Assembly to consider
the question of the future government of Palestine. This request
could lead either to a recommendation by the Assembly to the
mandatory on the manner in which Palestine’s tutelage should be
completed and full independence granted, or to an act of consent by
the General Assembly to alteration of the mandate terms.* It is possible to interpret the General Assembly’s
resolution of November 29, 1947 as constituting either of the two
actions just mentioned. When Great Britain first asked the General
Assembly to examine the Palestine problem, the request appears to
have been made with a view to securing a General Assembly recommendation. Later, at the regular 1947
session of the Assembly, Great Britain announced that the mandate
would be terminated and that Britain would not take the undivided
responsibility for implementing any solution which was not agreed to
by both Arabs and Jews, thus implying a changed British theory
concerning the nature of the action sought from the General
Assembly. On either theory, the mandatory power and Great Britain
together were competent to make a legally effective political
settlement for Palestine. By virtue of the Assembly’s passage of the
resolution and Great Britain’s “acceptance” of the plan, these
authorities appear to have made a legal disposition for the future
of Palestine.
The Palestine plan contained in the General Assembly’s resolution of
November 29, 1947 provided for termination of the mandate,
provisional arrangements for administration, and subsequent
emergence of two independent states and an international territory
(the City of Jerusalem); the partition of Palestine was to be
accompanied by economic union. The working out of this Plan required
the active functioning of the General Assembly’s Palestine
Commission. That body has now suspended its political operations,
and the Plan cannot be carried forward without a resumption of
activity by the Commission (including the designation of provisional
councils of government).
On May 15, 1948 the mandate for Palestine will end, pursuant to the
provisions of the Plan; at that time Great Britain will withdraw its
[Page 962] mandatory
administration, even though other steps contemplated by the plan are
not being taken and even though Great Britain herself has failed to
take some important measures called for by the General Assembly
resolution of November 29, 1947. Under these circumstances, British
abandonment of the mandate may be a breach of Great Britain’s
international obligations; but as a practical matter the mandate
would nevertheless be terminated. According to the plan, the
Palestine Commission was to be legally responsible for the
administration of Palestine upon termination of the mandate, pending
transfer of authority to the successor governmental agencies. If the
Commission after May 14 is suspended, or is paralyzed and makes no
effort to administer Palestine, the question must be asked whether
any other authority can have legal capacity to carry on with the
governing of Palestine.
At this point we must consider the role of the remaining Principal
Allied and Associated Powers. It was these powers which allocated
the Palestine mandate to Great Britain after World War I. Possibly
they retained some residuary rights of disposition over Palestine
after the mandate was granted. If such rights persisted, they might
be asserted in the event that the mandate ended abruptly without
provision for a future political settlement. Such might be the case
if the General Assembly before May 15, 1948 repealed its resolution
of November 29, 1947 and no other legally effective disposition of
Palestine should be made by the Assembly and Great Britain. But in
the absence of such repeal by the Assembly of its resolution, it
seems particularly doubtful that the remaining Principal Allied and
Associated Powers could assert any residuary rights.†
We are then faced with the situation where the only agencies claiming
to have governing powers over Palestine are organizations within
that country.‡ The law of nations
recognizes an inherent right of people lacking the agencies and
institutions of social and political control to organize a state and
operate a government.
Article 22 of the League Covenant provided
“Certain communities formerly belonging to the Turkish Empire
have reached a stage of development where their existence as
independent nations can be provisionally recognized subject to
the rendering of administrative advice and assistance by a
Mandatory until such time as they are able to stand alone.”
[Page 963]
Palestine was covered by this Article, later being made a Class “A”
mandate. Just what constituted the “communities” referred to in
Article 22 was not made clear. Quite evidently Palestine as a whole
was not a community, as is shown by the fact
that the mandatory in 1946 detached the Trans-Jordan from Palestine
and gave it independence. The Palestine mandate instrument referred
specifically to “communities” and in a manner so as to make clear
that the principal religious communities of Palestine—Jewish and
Arab—were intended by the reference.
There is, of course, in the background of the mandate and of the
League Covenant, the Balfour Declaration of November 2, 1917 by the
British Government, declaring in favor of the establishment in
Palestine of a national home for the Jewish people. When the Council
of the League of Nations gave its approval to the Palestine mandate
so that the instrument could become effective, the Council in its
approving resolution cited the agreement of the Principal Allied
Powers that Great Britain “should be responsible for putting into
effect the declaration originally made on November 2, 1917, by the
Government of His Britannic Majesty, and adopted by the said Powers
…”§ It is therefore apparent that the disposition of
Palestine by the competent Powers after World War I included a
provision, having the nature of a trust, in favor of a Jewish
national home in Palestine. This was to be, however, without
prejudice to the civil and religious rights of existing communities
in Palestine. One of the ways in which this trust might be carried
out would be through the establishment of a Jewish state in
Palestine.
The existence of this trust together with the inherent right
recognized in international law afford a legal basis for the
formation of a state and goverment by the Jewish community in the
areas of Palestine which that community occupies.║ Such action would also have the
moral sanction of the partially implemented disposition of Palestine
made by the mandatory and the United Nations General Assembly in the
Partition Plan. Similarly, the Arab Community would be entitled to
organize a state and government in the areas of Palestine which it
occupies.¶
It should be noted that the proclamation of a state and government by
either community during the current special session of the General
Assembly would be contrary to the provisions of paragraph 1(d) of the Security Council truce resolution
of April 17, 1948. This resolution [Page 964] does not bind legally either community nor would
it bind the states and governments proclaimed, since none of these
are or would then be members of the United Nations.**
The same resolution called upon governments “and particularly those
of the countries neighboring Palestine to take all possible steps to
assist in the implementation of the measures set out under paragraph
1 above, and particularly those referring to the entry into
Palestine of armed bands and fighting personnel, groups and
individuals and weapons and war materials”. This provision, binding
upon members of the United Nations, might be construed to cover the
recognition of any new states in Palestine during the special
session of the Assembly.
One may conclude, therefore: (1) the United States probably should
not recognize the existence of any new state in Palestine during the
special session, unless the Security Council should repeal its April
17 resolution; (2) the United States, after the special session,
will be legally free to recognize the existence of Jewish and Arab
states in the areas of Palestine occupied by them, respectively; (3)
the United States should not recognize the existence of either an
Arab or Jewish unitary state for all of Palestine in the absence of
consent by the communities, since to do so would contravene
obligations and rights arising out of the provisions of the League
Covenant, the mandate instrument, the General Assembly resolution of
November 29, 1947, and the principles of the law of nations
regarding self-determination of peoples.
Recognition of a new government.
In any situation where the United States is free under international
law to recognize the existence of a new state, the determination of
whether diplomatic recognition should be accorded to a particular
regime as the government of that state is entirely a question of
policy. United States policy in this matter has been set forth in a
paper of the Policy Planning Staff (PPS 24), dated March 15, 1948,2 which was subsequently
approved. Relevant Policy Planning Staff recommendations are
attached at Tab A.3
Certain criteria, relating to the character of the government under
consideration, have in the past been employed in deciding on the
granting or withholding of recognition. These are:
- (a)
-
de facto control of the territory and
the administrative machinery of State, including the
maintenance of public order;
- (b)
- the ability and willingness of a government to discharge
its international obligations;
- (c)
- general acquiescence of the people of a country in the
government in power.
In Tab B4 of this
memorandum there are collected a number of illustrative instances in
American history.
