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Background for a Law Journal Article Proposal BACKGROUND FOR A LAW JOURNAL ARTICLE PROPOSAL ON JEWISH NATIONAL RIGHTS ------------------------------------------------------- Built upon a thesis developed by Harvard-trained lawyer Wallace Edward Brand Third revision December 31, 2010 Compiled by non-lawyer Elon Magill Endorsement by Wallace Edward Brand on December 21, 2010: “I do agree with you that a law review article in the Harvard Law Review, or the like, might be helpful in raising public awareness, particularly in the light of President Obama's past association with that publication.” ABOUT: This background for a law journal proposal is not intended to be exhaustive. It only covers points that Mr. Elon Magill happened to address in responding to e-mails from Mr. Wallace Edward Brand. For other important potential topics for a proposed law journal article, consult Jacques Gauthier, Thesis (2007) and Howard Grief, The Legal Foundation and Borders of Israel under International Law (2008), which are the premier modern works on the subject. For more information on Mr. Brand, the qualities of a prospective author for the proposed law journal article, and what are the proposed goals of the article, see Point 8 starting on page 68. PROVISO: Material information contained in this backgrounder cannot be casually released to people that Mr. Brand <[email protected]> and Mr. Magill <[email protected]> know, unless both of them consent, unless one of them is unresponsive by e-mail for a period of two weeks. Mr. Brand and Mr. Magill sending it to prospective authors and people assisting in writing the proposed law journal article only needs consent from one of them. The Israel- American Renaissance Institute has permission to privately redistribute this backgrounder and material information from it to prospective authors pre-approved by Adina Kutnicki <[email protected]>, without need for consent from either Mr. Brand or Mr. Magill. No one else may redistribute material information without permission. Whenever someone is redistributing material information contained in this backgrounder, this proviso must remain attached. Failure to abide by this proviso, and if material information is publicized, it could prevent a law journal from publishing a finished article, and it is fair warning to point out that if such were to occur, it would be good grounds for a law suit. A NOTE ON ORGANIZATION: What is in black and bold is written by Mr. Wallace Edward Brand. All non-bolded comments that follow in purple and blue are written by Mr. Elon Magill (a non-lawyer). Blue signifies a block quote, but since I placed a black box around all such quotes, the document can be printed out in black-and-white without any loss in readability. This is the third draft. The second draft was written on July 22, 2010. The first draft was sent through e-mail on July 13, 2010. Mr. Brand‘s comments have their original numbering (1-8) that he sent in a single e-mail. Three new points 9, 10, & 11 have been added at the end of this backgrounder. Some supplemental e-mails written by Mr. Brand have been inserted at appropriate places distinguished with brackets and the word SUPPLEMENT. There is also an internal numbering system for Mr. Magill‘s comments that recycles for every major point number. TABLE OF CONTENTS: Point 1 ……………………………………………….. 3 Point 2…………………….…………………………..13 [The internal Point 3………………………………………………...17 Point 4………………………………………………...29 numbering system Point 5………………………………………………...33 between each Point is Point 6………………………………………………...53 Point 7………………………………………………...60 A, B, C…1, 2, 3…i, ii, Point 8………………………………………………...69 iii…a, b, c…] Point 9………………………………………………...71 Point 10……………………………………………….72 Point 11……………………………………………….73 This is my preliminary reply to your letter. 1. The final draft of the Mandate was approved in 1922. The League of Nations approved the terms of the mandate, with the stipulation that they [the Palestine and the Syria Mandate] would not come into effect until a dispute between France and Italy over the Syria Mandate was settled. That issue was resolved in September 1923. The Council of the League of Nations determined that the two mandates had come into effect at its meeting of 29 September 1923. From the standpoint of the US, it was effective when the Senate approved the Anglo-American Convention in February, 1925 as a "legislative treaty" and it clearly became domestic law. The execution of the treaty in 1924 by the US Executive as an "executive treaty" is the date I have selected because that is when it became US law so far as its international relationships and arguably domestic law as well, but any of these dates from 1922 to 1925 could be used with proper explanation. I was trying to keep the article short so I did not explain as I should have. [SUPPLEMENT 1: But our dialogue raises an interesting question. Prior to a constitutional route treaty going to the Senate for its advice and consent, the President has negotiated it in great detail with a foreign country, and our country and the foreign country are in exact agreement. So does the proposed constitutional treaty agreement, prior to Senate approval have the force of an executive agreement? I doubt that question has been decided. In any event, the question of exactly when the de jure sovereignty passed from the Ottoman Empire is the date of the Treaty of Sevres. The exact date it came to the British is not crucial to any part of Howard Grief's these. Ultimately, when the trust agreement took effect, the de jure sovereignty passed to Great Britain. Before then the Allied Forces had de facto sovereignty.] [SUPPLEMENT 2: They [Britain and the United States in the Anglo-American Convention on Palestine] did agree that that they would be bound by a "treaty" on ratification. However they were silent on whether they had an executive agreement after the document was signed by Kellogg and Chamberlain.] A. I responded in a supplemental e-mail to his original comments above: Since your emails deal with a vast array of topics that might take me several days or more to pore over, and push my knowledge, memory, research ability, and logical faculties as a non-lawyer to their limit, here is my partial response to point 1. of your preliminary email [I will try in subsequent emails to follow the same numbering system as you did in that email], which I can get out of the way now, since it deals with less fundamental points than much of the rest. I apologize in advance that I do not have a citation book . because my home was involved in a major fire a couple of weeks ago. I am still have not fully situated in a new place. .: 1 (partial response). You stated: "From the standpoint of the US, it was effective when the Senate approved the Anglo-American Convention in February, 1925 as a 'legislative treaty' and it clearly became domestic law." You might have forgotten this legal point. According to the Constitution, Article II, Section II, the power to ratify treaties lies with the President. Prof. Malvina Halberstam, who clerked for Judge Edmund Palmieri, served as an assistant district attorney under Frank Hogan, as a reporter for the American Law Institute (Model Penal Code Project), and as a counselor on international law for the US Department of State, Office of the Legal Advisor, states: "Treaties are ratified by the President, providing two-thirds of the Senate gives its advice and consent. In fact, the President need not ratify a treaty even if the Senate has given its advice and consent. (Malvina Halberstam, Book Review, 14 Cardozo L. Rev. 407, 413-14 (1992-1993))" In the footnote to the latter statement, Prof. Halberstam cites: "See Louis HENKIN ET AL., INTERNATIONAL LAW CASES AND MATERIALS 182 (2d ed. 1987). See also statement of Senator Spooner to the Senate, 59 CONG. REC. 1417-21 (1906), reprinted in EDWARD S. COR WIN, THE PRESIDENT'S CONTROL OF FOREIGN RELATIONS 169-204 (1917). '[T]he President is as free when it [the treaty] is sent back to the White House with resolution of ratification attached, to put it in his desk never again to see the light of day as he was free to determine in the first instance whether he would or would not negotiate it'. (Id. at 114 n.22)." In the case of the case of the Anglo-American Convention, ratification by the President occurred on March 2, 1925 (44 Stat. 2184 (1904-1927)). As provided in Article 8 of the Convention ("The present convention shall take effect on the date of the exchange of ratifications." 44 Stat. 2192 (1904-1927)), the Convention became effective on December 3, 1925 when ratifications were exchanged at London (44 Stat. 2184 (1904-1927)). This is confirmed with reference to the Treaties in Force, which states in the entry for the Anglo-American Convention: "Effective December 3, 1925. (U.S. Dep't State, Treaties in Force 46 (1932).)" Therefore, I assume that a treaty most clearly becomes domestic law the date the procedures provided in each treaty are fulfilled. It might constitutionally be that a treaty becomes domestic law when the President ratifies it, but can it really be termed a "treaty" under the Constitution until another state ratifies it? Great Britain ratified the Anglo-American Convention on March 18, 1925 (44 Stat. 2184 (1904-1927)). It could also be that even if a treaty becomes effective, it might practically need to be proclaimed, for how else would the public know a treaty has become effective, though in a media age this might be irrelevant? The Anglo-American Convention was proclaimed by the President on December 5, 1925, which stated: "NOW, THEREFORE, be it known that I, Calvin Coolidge, President of the United States of America, have caused the said Convention to be made public, to the end that the same and every article and clause thereof may be observed and fulfilled with good faith by the United States and the citizens thereof.
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