January 6, 2011
By Ted Belman
I attended a lecture two years ago by Jacques Gauthier, a Canadian Lawyer who just received his PhD after twenty years of research on the legal status of Jerusalem and the writing of a dissertation of some 1300 pages with 3000 footnotes. He had to present his thesis to a panel of two leading international lawyers and one world famous Jewish historian. The reason for so many footnotes was to enable him to defend his thesis from intense attack by one of the lawyers who happened to be Jewish anti-Zionist and who had represented the PA on numerous occasions. Gauthier is not Jewish.Here’s what he said in point form,
1. The Balfour Declaration of 1917 started the whole process but it didn?t create international legal rights.
2. The San Remo decision made on 25 April 1920, incorporated the Balfour Declaration of 1917[2] and Article 22 of the Covenant of the League of Nations. It was the basic decision upon which the Mandate for Palestine was constructed. While the decision made at San Remo created the Palestine Mandate de-facto, the mandate document signed by Great Britain as the Mandatory and the League of Nations made it de-jure. It thus became a binding treaty in international law.
- The High Contracting Parties agree to entrust, by application of the provisions of Article 22, the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory, to be selected by the said Powers. The Mandatory will be responsible for putting into effect the declaration originally made on November 8, 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.
[Palestine straddled the Jordan River and thus was on the east bank and the west bank.]
3. Article 22 of the Covenant of the League of Nations provides for the creation of mandates.
- To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant.
4 The Palestine Mandate of the League of Nations, included the following significant recital,
- “Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country;
ART. 2. The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.
Thus the operative clause specifically referred to the preamble, reiterated that there were no political rights for other inhabitants.
ART. 5. The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any way placed under the control of the Government of any foreign Power.
ART. 6. The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes.
5. The United Nations took over from the failed League of Nations in 1945 and its Charter included
Article: 80 .. nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.
Thus the Palestine Mandate continued under the United Nations without change.
6. In 1947, the General Assembly of the UN passed Res 181 which became known as the Partition Plan pursuant to which both Jews and Arabs could announce their state.
First it must be noted that the Charter of the UN specifically gave no power to the General Assembly because that would infringe on the sovereign power of individual members. So the GA could recommend only. Secondly, this recommendation was in violation of the terms of the Mandate. See Art 5 above.
This resolution also provided for a Special Regime for Jerusalem which had the following defined boundaries,
- A. SPECIAL REGIME The City of Jerusalem shall be established as a corpus separatum under a special international regime and shall be administered by the United Nations. The Trusteeship Council shall be designated to discharge the responsibilities of the Administering Authority on behalf of the United Nations. B. BOUNDARIES OF THE CITY The City of Jerusalem shall include the present municipality of Jerusalem plus the surrounding villages and towns, the most eastern of which shall be Abu Dis; the most southern, Bethlehem; the most western, ?Ein Karim (including also the built-up area of Motsa); and the most northern Shu?fat, as indicated on the attached sketch-map (annex B).
- The Statute elaborated by the Trusteeship Council the aforementioned principles shall come into force not later than 1 October 1948. It shall remain in force in the first instance for a period of ten years, unless the Trusteeship Council finds it necessary to undertake a re-examination of these provisions at an earlier date. After the expiration of this period the whole scheme shall be subject to examination by the Trusteeship Council in the light of experience acquired with its functioning. The residents the City shall be then free to express by means of a referendum their wishes as to possible modifications of regime of the City.
Keep in mind that the disposition of this area was to be determined not by Israel but by the residents of Jerusalem so defined. Currently the Jews have a 2:1 majority there.
Needless to say that after the Armistice Agreement of ?49 the Jordanians who were in control of Jerusalem violated every provision of this resolution calling for among other things respect for holy places. The referendum never took place.
After the ?67 war in which Israel regained the land to the Jordan including Jerusalem, Res 242 of the Security Council was passed authorizing Israel to remain in possession of all the land until they had ?secure and recognized boundaries?. It did not require Israel to withdraw from all of the territories and it was silent on Jerusalem.
Also it ?Affirms further the necessity for achieving a just settlement of the refugee problem?. There was no reference to Res 194 nor was there a distinction made between Jewish and Arab refugees.
I would like to stress one more thing.
By virtue of this preamble
- ?Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country;
Thus the UN has recognized Jerusalem as the home of the Jewish people.
His lecture did not cover the following salient events which need recalling.
Prior to the signing of the Mandate, However, in 1921, the British took off the ?East Bank? from Jewish Palestine, enlarged the territory eastward up to the borders of Mesopotamia (Iraq), and gave the whole thing to Abdullah. Unfortunately, the final signing of the Mandate happened only in July, 1922, and the British included in it a provision to prevent Jews from settling anywhere east of the Jordan River (Article 25). This provision was supposed to be temporary, but it lasted to this day.
The east bank represented 77% of Palestine so the Jews only got 23%. In addition the British also gave the southern Golan which was promised to the Jews, to the Syrian Mandate.
In doing so Britain, the Mandatory Power violated Articles 5 and 27 of the Mandate.
ART. 5. ?The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any way placed under the control of the Government of any foreign Power.?
ART. 27: The Mandatory had no right to amend the Mandate terms without the full consent of the League of Nations or its Mandates Commission.
What follows next are comments by Eli Hertz in his pamphlet ?The Legal Aspects of Jewish Rights”. It is titled, This Land is My Land and can be purchased from Israpundit for $20.00. Simply write to tedbel@rogers.com for instructions.
Jerusalem in ?Mandate? Time
Two distinct issues exist: the issue of Jerusalem and the issue of the Holy Places.
Cambridge Professor Sir Elihu Lauterpacht, Judge ad hoc of the International Court of Justice and a renowned editor of one of the ?bibles? of international law, International Law Reports has said:- ?Not only are the two problems separate; they are also quite distinct in nature from one another. So far as the Holy Places are concerned, the question is for the most part one of assuring respect for the existing interests of the three religions and of providing the necessary guarantees of freedom of access, worship, and religious administration [E.H., as14 mandated in Article 13 and 14 of the ?Mandate for Palestine?] ? As far as the City of Jerusalem itself is concerned, the question is one of establishing an effective administration of the City which can protect the rights of the various elements of its permanent population? Christian, Arab and Jewish?and ensure the governmental stability and physical security which are essential requirements for the city of the Holy Places.?27
The notion of internationalizing Jerusalem was never part of the ?Mandate?. Nothing was said in the Mandate about the internationalization of Jerusalem. Indeed Jerusalem as such is not mentioned?though the Holy Places are. And this in itself is a fact of relevance now. For it shows that in 1922 there was no inclination to identify the question of the Holy Places with that of the internationalization of Jerusalem.?28
Jerusalem the spiritual, political, and historical capital of the Jewish people has served, and still serves, as the political capital of only one nation?the one belonging to the Jewish people.
Jerusalem, a city in Palestine, was and is an undisputed part of the Jewish National Home.
Jewish Rights to Palestine Were Internationally Guaranteed
In the first Report of the High Commissioner on the Administration of Palestine (1920-1925) presented to the British Secretary of State for the Colonies, published in April 1925, the most senior official of the Mandate, the High Commissioner for Palestine, underscored how international guarantees for the existence of a Jewish National Home in Palestine were achieved:
- ?The [Balfour] Declaration was endorsed at the time by several of the Allied Governments; it was reaffirmed by the Conference of the Principal Allied Powers at San Remo in 1920; it was subsequently endorsed by unanimous resolutions of both Houses of the Congress of the United States; it was embodied in the Mandate for Palestine approved by the League of Nations in 1922; it was declared, in a formal statement of policy issued by the Colonial Secretary in the same year, ?not to be susceptible of change.? ?29
United States Government and the ?Mandate? Policy
Despite not being a member of the League, the U.S. Government
claimed on November 20, 1920 that the participation of the United States in WWI entitled it to be consulted as to the terms of the Mandate. The British Government agreed, and the outcome was an agreement calling to safeguard the American interests in Palestine. It concluded with a convention between the United Kingdom and the United States of America, signed on December 3, 1924.
claimed on November 20, 1920 that the participation of the United States in WWI entitled it to be consulted as to the terms of the Mandate. The British Government agreed, and the outcome was an agreement calling to safeguard the American interests in Palestine. It concluded with a convention between the United Kingdom and the United States of America, signed on December 3, 1924.
It is imperative to note that the convention incorporated the complete text of the ?Mandate for Palestine,? including the preamble!30 President Wilson was the first American president to support modern Zionism and Britain?s efforts for the creation of a National Home for Jews in Palestine (the text of the Balfour Declaration had been submitted to President Wilson and had been approved by him before its publication).
President Wilson expressed his deep belief in the eventuality of the creation of a Jewish State:
- ?I am persuaded,? said President Wilson on March 3rd, 1919, ?that the Allied nations, with the fullest concurrence of our own Government and people, are agreed that in Palestine shall be laid the foundation of a Jewish Commonwealth.?31
On June 30, 1922, a joint resolution of both Houses of Congress of the United States unanimously endorsed the ?Mandate for Palestine,? confirming the irrevocable right of Jews to settle in the area of Palestine?anywhere between the Jordan River and the Mediterranean Sea:
- ?Favoring the establishment in Palestine of a national home for the Jewish people. ?Resolved by the Senate and House of Representatives of the United States of America in Congress assembled. That the United States of America favors the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which should prejudice the civil and religious rights of Christian and all other non-Jewish communities in Palestine, and that the holy places and religious buildings and sites in Palestine shall be adequately protected.?32
The ?Mandate for Palestine? is Valid to This Day
The Mandate survived the demise of the League of Nations. Article 80 of the UN Charter implicitly recognizes the ?Mandate for Palestine? of the League of Nations.
This Mandate granted Jews the irrevocable right to settle anywhere in Palestine, the area between the Jordan River and the Mediterranean Sea, a right unaltered in international law and valid to this day.
Jewish settlements in Judea and Samaria (i.e. the West Bank), Gaza and the whole of Jerusalem are legal.
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I will leave it to another article to set out why the passing of Res 181 or Res 242 or the signing of the Oslo Accords did not diminish or derogate from the rights of the Jews to the land,
I would also like to point out that Howard Grief did independent research for his book ?The Legal Foundation and Borders of Israel under International Law? in which he came to similar conclusions.
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The “Mandate for Palestine” is Valid to This Day The Mandate survived the demise of the League of Nations. Article 80 of the UN Charter implicitly recognizes the “Mandate for Palestine” of the League of Nations.
This Mandate granted Jews the irrevocable right to settle anywhere in Palestine, the area between the Jordan River and the Mediterranean Sea, a right unaltered in international law and valid to this day. Jewish settlements in Judea and Samaria (i.e. the West Bank), Gaza and the whole of Jerusalem are legal.
The International Court of Justice reaffirmed the meaning and validity of Article 80 in three separate cases:
- ICJ Advisory Opinion of July 11, 1950: in the “question concerning the International States of South West Africa.”33
- ICJ Advisory Opinion of June 21, 1971: “When the League of Nations was dissolved, the raison d’etre [French: “reason for being”] and original object of these obligations remained. Since their fulfillment did not depend on the existence of the League, they could not be brought to an end merely because the supervisory organ had ceased to exist. … The International Court of Justice has consistently recognized that the Mandate survived the demise of the League [of Nations].”
- ICJ Advisory Opinion of July 9, 2004: regarding the “legal consequences of the construction of a wall in the occupied Palestinian territory.”35
In other words, neither the ICJ nor the UN General Assembly can arbitrarily change the status of Jewish settlement as set forth in the “Mandate for Palestine,” an international accord that has never been amended.
All of western Palestine, from the Jordan River to the Mediterranean Sea, including the West Bank and Gaza, remains open to Jewish settlement under international law.
Professor Eugene Rostow concurred with the ICJ’s opinion as to the “sacredness” of trusts such as the “Mandate for Palestine”:
“‘A trust’ – as in Article 80 of the UN Charter – does not end because the trustee dies … the Jewish right of settlement in the whole of western Palestine – the area west of the Jordan – survived the British withdrawal in 1948. … They are parts of the mandate territory, now legally occupied by Israel with the consent of the Security Council.”36
The British Mandate left intact the Jewish right to settle in Judea, Samaria and the Gaza Strip. Explains Professor Rostow:
“This right is protected by Article 80 of the United Nations Charter, which provides that unless a trusteeship agreement is agreed upon (which was not done for the Palestine Mandate), nothing in the chapter shall be construed in and of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which members of the United Nations may respectively be parties.
“The Mandates of the League of Nations have a special status in international law. They are considered to be trusts, indeed ‘sacred trusts.’
“Under international law, neither Jordan nor the Palestinian Arab ‘people’ of the West Bank and the Gaza Strip have a substantial claim to the sovereign possession of the occupied territories.”
It is interesting to learn how Article 80 made its way into the UN Charter. Professor Rostow recalls:
“I am indebted to my learned friend Dr. Paul Riebenfeld, who has for many years been my mentor on the history of Zionism, for reminding me of some of the circumstances which led to the adoption of Article 80 of the Charter. Strong Jewish delegations representing differing political tendencies within Jewry attended the San Francisco Conference in 1945. Rabbi Stephen S. Wise, Peter Bergson, Eliahu Elath, Professors Ben-Zion Netanayu and A. S. Yehuda, and Harry Selden were among the Jewish representatives. Their mission was to protect the Jewish right of settlement in Palestine under the mandate against erosion in a world of ambitious states. Article 80 was the result of their efforts.”37
Posted by Ted Belman @ 3:50 am - Israpundit
