A reason given for a power in the United Nations to partition Palestine was that Palestine lacked standing as a state. In response, it was said that Palestine was a state; hence, any division of its territory by the United Nations would violate Palestine’s sovereignty. As result of the peace treaty with Turkey, the Treaty of Lausanne of 1923, it was argued in support of this position, Palestine became a state, as did the other Arab territories taken from Turkey. The Treaty of Lausanne provided renunciation of sovereign to Palestine. When Palestine’s status became an issue in a case before the Permanent Court of International Justice, the Court found Palestine to be a state. When Palestine’s status became an issue in regard to tariffs being legislated by Britain, the major powers indicated that Palestine was a state.

Hersch Lauterpacht was a strong proponent of international adjudication. He was perhaps the foremost exponent among international lawyers for a strong role for the international judiciary in preventing war and resolving disputes between states. He was a particularly strong backer of the Permanent Court of International Justice, which was created by the League of Nations. He wrote that advisory opinions were important in providing advice that might lead to the resolution of disputes. In this situation, however, he opposed reference to the International Court of Justice, which had replaced the Permanent Court of International Justice, of the question of the legal status of Palestine and the legality of the declaration of a Jewish state.

Opposition to Zionism was characterized as anti-Semitic by a number of Western governments. An intergovernmental association numbering thirty-four states adopted a definition of anti-Semitism that included as anti-Semitism: “Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.” Criticism of policies of the Israeli Government was said not to be a manifestation of anti-Semitism, but the definition was criticized as an effort to deflect criticism of Israel, in particular for settling persons in Palestinian-occupied territory.

A power on the part of the General Assembly of the United Nations to decide on a partition of Palestine was said to flow from the text of the Charter of the United Nations. The Charter, however, gives the General Assembly decision-making powers only with respect to issues internal to the United Nations. It was argued that the member states construed the Charter so as to give it a power to partition Palestine. In response, it was argued that the member states did not do so. Many of them wanted the International Court of Justice to decide that point. It was argued that even if the Charter did not explicitly give a power to partition Palestine, such a power was implied by the Charter. In response, it was argued that there was no basis for such an implication.

The Permanent Court of International Justice, the predecessor to the International Court of Justice, had developed considerable experience with advisory opinions. This chapter surmises how the questions sought by Syria might have been framed to the International Court of Justice, had votes in the Security Council and General Assembly gone in its favor. The chapter sets the stage for posing a series of questions to the Court. Advisory opinions are not adversarial in nature. Any UN member state is entitled to make argument. The chapter supposes that Israel might have been invited to argue, given its interest in the matter. The chapter then puts together a legal team that might have argued for Israel, and another that might have argued for Syria. Three international lawyers are named for each team. All six were involved at the United Nations at the same time; hence, their positions are matters of record. This chapter opens the way for the next sixteen chapters, each of which gives the arguments the two legal teams might have made on a particular sub-issue.

One feature of the system contemplated by the covenant of the League of Nations for the Arab territories being taken from Turkey was that the wishes of the population should be a “principal consideration” in the selection of an outside power that would control the territory. The United States sent a survey team to assess opinion in Palestine. Britain, after initially agreeing, declined to participate in this exercise, because it had decided to keep Palestine regardless of the opinion of the population. Britain understood that the population of Palestine was wary about Britain taking control, in particular because of Britain’s stated intention of promoting a Jewish national home.

Upon Britain’s withdrawal from Palestine, a Jewish state was declared, and military forces from neighboring Arab states entered Palestine. In the Security Council, the Provisional Government of Israel charged aggression on the part of the Arab states and asked for Security Council action to stop it. The Arab states denied aggression, saying that they entered Palestine at the request of its population for the purpose of protecting that population from further acts of expulsion. Syria invoke the doctrine of humanitarian intervention as a rationale for the actions of the Arab state forces. The Provisional Government of Israel said that the aim of the Arab state intervention was the dismantling of Israel as a state. The Security Council took no action on the charge of aggression. The Security Council called for ceasefires.

A power on the part of the General Assembly of the United Nations to decide on a partition of Palestine was argued to have been inherited by the United Nations from the League of Nations. The League of Nations, it was argued in response, had no territorial rights in Palestine, hence nothing to leave to the United Nations. At its final meeting, the Assembly of the League of Nations discussed the various mandate territories. It did not anticipate that it was passing on any powers over them to the United Nations. A Preparatory Committee for the United Nations indicated that no powers in regard to political issues were being inherited from the League of Nations.

Partition of Palestine was also supported by the United States, which similarly came to a policy determination on the matter only shortly before the vote in the General Assembly on partition. The State Department opposed Jewish statehood on the basis of advocating self-determination for Palestine’s population, and because US strategic and energy interests were seen as requiring a close relationship with the wider Arab world. That position was opposed by President Harry Truman’s political advisors, who thought that his chances for being elected president in 1948 would be enhanced if he backed Jewish statehood. Through 1946 and 1947, the State Department and Truman’s political advisors vied to gain Truman’s support for their view. As the General Assembly neared its vote on recommendations, Truman instructed the US delegation to back partition. When partition did not work out, the State Department gained Truman’s assent to proposing a UN trusteeship. When a Jewish state was declared, the political advisors prevailed on Truman to give it diplomatic recognition, over the objection of Secretary of State George Marshall, who told Truman he would vote against him in the upcoming presidential election if Truman recognized the incipient Jewish state.

According to the covenant of the League of Nations, the outside state in control of Arab territories was to shepherd it along to independence. Britain took Palestine on the understanding that it would promote a Jewish national home there. This commitment was viewed on the Arab side as inconsistent with the obligation to foster independence. The concern was that Britain would allow a major inflow of Jewish population from Europe that would erode the Arab majority. This was regarded as a new form of colonialism. On Britain’s side, it was argued that independence for Palestine and a Jewish national home were compatible.

A reason given by the United Nations for recommending a partition of Palestine was that Jewish statehood had been endorsed by the League of Nations. The rationale was that the League of Nations had endorsed the commitment by Britain to promote a Jewish national home, and that Jewish national home meant a Jewish state. Britain wrote up a document for its governance of Palestine that included the fostering of a Jewish national home. Britain sought approval from the Council of the League of Nations for that document. The Council did approve the document. Britain took that approval as an endorsement of a Jewish national home. The Council, however, was not given an opportunity to influence the content of the document. As a result, the commitment for a Jewish national home was that of Britain alone. Britain denied that Jewish national home meant a Jewish state. The Palestine Mandate recited that the Balfour Declaration was endorsed by Britain’s allies, but the Allies did not do so.