Rather than within the UN system itself, the origins of Palestines international legal subalternity are located in British secret treaty-making and diplomacy between 1915 and 1947, particularly as institutionalized within the League of Nations system. Although the literature on the history of Palestine in this period tends to focus on political themes, this chapter examines this period through the cross-cutting theme of the Eurocentricity of international law and organization then prevailing. It is set against the backdrop of the global paradigm shift then occurring in the international system, from one based on the norms and values of the late-imperial age grounded in an international rule by law, to one based on those of an emerging liberal western rights-based discourse, ostensibly based on an international rule of law. The main systemic issue that emerges for Palestine at this time is its contingent and subaltern status in the international legal order, a status that was eventually placed before the UN in 1947.

In all human societies, whether primitive or advanced, there have been legal norms rejecting the use of force. Norms have emerged from custom. Written law may have resulted from the codification and development of customary rules. This happened in Sweden around 1200 A.D. when a central power succeeded in wielding control and secured the unification and development of regional norms into common rules that became binding on all. Over time majority decisions became the established mode of rules adoption. In the international community, no central power has attained control and there has been no legislature adopting rules binding on all states. At Westphalia, in 1648, after the thirty years war, and in Vienna, in 1815, after the Napoleonic wars, the great powers victors felt a responsibility to design a peaceful order. However, it was only through the joint adoption of the Covenant of the League of Nations and the Charter of the UN that the states of the world agreed on binding themselves under legal norms prohibiting the use of interstate use of force.

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.