Office of the Historian

Editorial Note

The Legal Adviser (Gross), in a memorandum of January 15, to Mr. Rusk, commented on a recommendation drafted by Mr. Rusk for the Under Secretary. The editors are unable to find Mr. Rusk’s recommendation in the Department of State files. Mr. Gross’ memorandum, however, summarized the recommendation as follows: “In your draft memorandum the problem was considered of what position the United States should take in the Security Council of the United Nations in the event that a member of the Council should move ‘to request an advisory opinion from the International Court of Justice on the legality of the action recently recommended by the General Assembly with respect to Palestine. The memorandum recommended that the United States should support such a motion.’”

After analyzing the advantages and disadvantages of the recommendation, the Legal Adviser concluded:

  • “(a) The United States should not support a motion in Security Council to refer any question on Palestine to the International Court;
  • “(b) The United States should oppose reference to the Court of any question on Palestine as a pre-condition to action by the Security Council in carrying out its responsibilities for the maintenance of international peace and security; the United States should be prepared to vote against a reference under such circumstances, after consultation with other Security Council members to ascertain that such negative vote would not constitute a unilateral United States veto;
  • “(c) The United States should oppose reference to the Court, by the Security Council, of any question not pertinent to a matter before the Council (e.g., the general question whether the General Assembly had power to recommend a Palestine solution that did not have the consent of the inhabitants of Palestine); again, the United States should be prepared to vote against such a reference provided the negative vote did not result in a unilateral United States veto;
  • “(d) In other cases of a motion in the Security Council to refer questions on Palestine to the Court the United States should not support a reference and should abstain from voting.” (501.BB Palestine/1–1548)