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
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. (44 Stat. 2192 (1904-1927))" One would have to examine case law for when U.S. courts have recognized a treaty as domestic law, but due to the quote by Prof. Malvina Halberstam above, I doubt a U.S. court has ever recognized a treaty prior to its ratification by the President, unless it is customary law.
You stated: "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 . . . ." Without regard to the factual accuracy of your point, I think a better question to ask is: is a treaty binding under International Law prior to its ratification? I have not researched the question. Consult Google for the Vienna Convention on the Law of Treaties. The Department of State website states: "Is the United States a party to the Vienna Convention on the Law of Treaties? No. The United States signed the treaty on April 24, 1970. The U.S. Senate has not given its advice and consent to the treaty. The United States considers many of the provisions of the Vienna Convention on the Law of Treaties to constitute customary international law on the law of treaties. (http://www.state.gov/s/l/treaty/faqs/70139.htm)" You would have to examine the complex case law for how U.S. has interpreted it.
B. With regard to the factual accuracy of your statement: "The execution of the [Anglo- American Convention] treaty in 1924 by the US Executive . . . is when it became US law so far as its international relationships . . . ," I read the full negotiating history of the Anglo-American Convention contained in the Division of Near Eastern Affairs, Department of State, Mandate for Palestine (1927). When it comes to the Anglo-American Convention, you are factually wrong. I do not know the normal procedure, but it served U.S. interests – in this case retaining the capitulatory rights for as long as possible of American nationals, which would have not applied under the Mandate – to wait for exchange of ratifications for the Convention to go into effect. See, e.g., id. at 94-96. For its part, the British Foreign Office responded on October 13, 1925 in id. at 101-02:
[I]t is apparent that the views held by His Majesty‘s Government, as Mandatory for Palestine, and those held by the United States Government on this matter cannot be reconciled, and, in view of the conclusion of the convention, further attempts to reconcile these views appear unnecessary. His Majesty‘s Government have, however, no desire to obtain from the Government of the United States any formal abandonment of the capitulatory rights of the United States citizens in Palestine prior to the entry into force of the convention. On the contrary, they readily take formal note of the fact that the claim to these rights, was not abandoned by the United States Government. . . .
To my recollection there were only four states that were parties to the Agreement at San Remo, Britain, France, Italy and Japan. It seemed to me to be more conservative to await League of Nations action on the agreement to refer to it as International Law. My children and grandchildren recently celebrated my 80th birthday, so I have found that my recollection is not always trustworthy.
C. You state: ―To my recollection there were only four states that were parties to the Agreement at San Remo, Britain, France, Italy and Japan. It seemed to me to be more conservative to await League of Nations action on the agreement to refer to it as International Law.‖:
1. First off, Att. Howard Grief told me in letter, dated December 15, 2008, the reason he does not use the term "San Remo Agreement." He initially used that term but there is a petroleum agreement with the same name that was concluded at the same time and more significant for him "resolution" was used in the minutes of the San Remo Conference to refer to the San Remo Resolution, so he uses the latter term instead of San Remo Agreement. This is the reason I use the term in appropriate circumstances, and in addition to give Att. Grief deference for the work he has done in this area, as well as to establish a unique term for propaganda purposes.
2. I have not studied all the bases for International Law but I found this convenient definition on an online legal dictionary: "Article 38(1) of the ICJ Statute enumerates the sources of international law and provides that international law has its basis in international custom, international conventions or treaties, and general principles of law. A rule must derive from one of these three sources in order to be considered international law." http://legal- dictionary.thefreedictionary.com/International+Law
Professor Beres in Louis Rene Beres, On Twisted Highways to "Palestine" Why the "Occupation" Is Still a Lie, JewishPress.com, Feb. 25, 2009 stated: "Significantly, however, a continuous chain of Jewish possession of the land was legally recognized after World War I, at the San Remo Peace Conference of April 1920. There, a binding treaty was signed in which Great Britain was given mandatory authority over 'Palestine' (the area had been ruled by the Ottoman Turks since 1516) to prepare it to become the 'national home for the Jewish People.'" While I do not know if the San Remo Resolution was signed or agreed to by a voice vote, unless there is some legal flaw, the San Remo Resolution was ostensibly a binding agreement under International Law between the four inter-Allied powers prior to League assent, just as I believe an ordinary constitutional treaty is an agreement under International Law between two parties. The San Remo Resolution prior to League assent I theorize was comparable to a U.S. Executive Agreement.
3. Perhaps the reason you do not call the San Remo Resolution "International Law" prior to League assent is that you are thinking about the ability for it to be enforceable upon the entire international community, just as the Anglo-American Convention might have been enforceable on the world community per Article 12 of the Palestine Mandate. This is a separate issue. For instance, Professor of Law, Portia Law School, Benjamin Akzin brings up a different, alleged, agreement that was not enforceable upon the entire international community in Benjamin Akzin, The Palestine Mandate in Practice, 25 Iowa L. Rev. 32, 47 (1939-1940):
[W]hatever the extent and meaning of the MacMahon correspondence, the title under which Great Britain holds Palestine springs from the decision of the Principal Allied Powers in San Remo and from the Mandate, not from the MacMahon correspondence; similarly, Jewish rights in respect to Palestine spring from these two documents, not from the Zionist-Hedjas agreement. . . . If, by assuming the Mandate with its Balfour Declaration, Great Britain violated any engagement it incurred toward Hedjas, it is up to Great Britain to compensate Hedjas . . . .
Though your caution may be warranted that the San Remo Resolution was not enforceable upon the entire international community prior to League assent, a possible rebuttal is that Principal Allied Powers were not just any four random states. The Principal Allied Powers arguably had a prescribed right under the League Covenant to draft the mandates, and theoretically did in practice draft the mandates. Paragraph 8 of Article 22 of the League Covenant, which most clearly went into effect on January 10, 1920 when the Treaty of Versailles went into effect, stated: "The degree of authority, control, or administration to be exercised by the Mandatory shall, if not previously agreed upon by the Members of the League, be explicitly defined in each case by the Council." Except for possible minor textual emendations, the League did not really define the terms of the Mandate for Palestine. See generally Howard Grief, The Legal Foundation and Borders of Israel under International Law 121, 158-59 (2008); Hersch Lauterpacht, International Law 73 et. seq. (E. Lauterpacht ed., 1977) (examining if the Allied Powers had a prescribed right under the League Covenant to draft the mandates), available at http://books.google.com/books?id=shU9AAAAIAAJ&pg=PA73&dq. It can also be pointed out that the third recital of the preamble of the U.N. Charter states: "to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained."
The flipside and the possible reason you do not think the San Remo Resolution was binding upon the entire international community until the League Council assented to it, is that the San Remo Resolution itself referred to the "Council of the League of Nations." Compare with the argument in Howard Grief, The Legal Foundation and Borders of Israel under International Law 62-64 (2008) (examining whether the boundary conventions needed approval of the League Council). League approval for the San Remo Resolution was given when its substance was inserted into the preamble in the Mandate and in provisos that accompanied its confirmation. Thus, I share your opinion that that is when it most clearly became enforceable upon the rest of the international community, but, as I mentioned above, it became international law between 4 parties prior to League assent.
It should be noted that due to the arguable role of the Principal Allied Powers under Article 22 of the League Covenant to define the mandates, any agreement between the Principal Allied Powers concerning that duty had great importance. Chaim Weizmann wrote this prior to the San Remo Conference in regards to the anticipated Treaty of Peace with Turkey in A Letter from Chaim Weizmann to Robert G. Vansittart, March 1, 1920, in 12 The Rise of Israel 238-39 (Isaiah Friedman ed. 1987):
So, it is not merely human and political considerations which demand that Palestine should be specifically dealt with in the Turkish treaty. The case of Palestine is different from that of all other mandated areas formerly belonging to the Turkish Empire. And for that reason it is highly desirable, if not actually necessary, from a legal point of view that the League of Nations should receive special instructions regarding the objects of the mandate to be issued for Palestine. The other mandated areas are to be administered in the national interests of the present inhabitants, but the mandate for Palestine is to have as its guiding object the establishment of the Jewish National Home, the rights of the present inhabitants, of course, being adequately safeguarded. Article XXII of the Covenant of the League of Nations, which will doubtless be embodied in the Turkish treaty, states that "certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognised subject to the rendering of administrative advice and assistance by a mandatory until such time as they are able to stand alone." It was understood, I believe, at the time the Covenant was first drafted that this provision was not to be applied to Palestine. It could not, of course, be literally applied to Palestine consistently with the pledges of the Allied and Associated Powers regarding the Jewish National Home. It is clearly the duty of the Allied and Associated Powers to leave no ambiguity on this point in the Turkish treaty which might subsequently prove to be a weapon in the hands of political intriguers and a source of embarrassment to the League of Nations.
4. It should be emphasized that the San Remo Resolution was an independent binding agreement that formed the basis for the Mandate and to which the Mandate text had to conform. See Howard Grief, Legal Rights and Title of Sovereignty of the Jewish People to the Land of Israel and Palestine Under International Law, NATIV Online, 2004 ("The San Remo Resolution is the base document upon which the Mandate was constructed and to which it had to conform."); Jacques Gauthier, Thesis 404 (2007) (Hersch Lauterpacht: "Acceptance of the Mandate takes the form of a treaty (to be approved by Council), between the Principal Allied Powers and the Mandatory Power. This treaty which was concluded by the Principal Powers, in effect, as representative of the League of Nations, is binding on the League, particularly after it approved it. The League cannot, therefore, unilaterally change the Mandate provisions. (Nor, of course do the Mandatories have that right)."); The Zionist Position, Jewish Chronicle (London), Jan. 13, 1922, at 7 ("The point of Mr. JAMAL'S letter is a plea that England should now withdraw the Balfour Declaration and substitute for it one assuring to the Arabs an Arab Palestine. But what these gentlemen forget is, that the Balfour Declaration long ago passed into a stage of performance rather than promise. The San Remo Treaty [most likely referring to the Treaty of Sevres (E.M. ed.)] not only adopted and confirmed Mr. BALFOUR'S Declaration, but became the basis of the Mandate which, although at present unconfirmed formally by the League of Nations, forms the only basis of England's position at present in Palestine. It would, therefore, be futile for Great Britain to think of altering the terms under which she is acting as Mandatory on the supposition that a mere declaration on her part (assuming she wished to make it), would entitle her to remain as she is in Palestine, but on the understanding of any new terms which she might set forth. It is very much like a man agreeing to take a property on the terms set forth in a lease assented to by lessee and lessor, being allowed to go into possession before the date of actual tenancy, and then turning round and altering the terms of the lease without any reference to his landlord. An amendment by England, or a withdrawal, of the Balfour Declaration would be wholly insufficient; a revocation of the San Remo Treaty and a withdrawal of the Mandate would be the least that would satisfy present Arab proposals.‖).
It is absolutely vital to stress the San Remo Resolution was an independent binding agreement under International Law that the Mandate text had to conform for the following reasons: i. It would help prove British White Papers are illegal. The issue of the Churchill White Paper seems to be more complex, so I will address it here: Att. Howard Grief, in his opinion, believes the Churchill White Paper precluded a Jewish state. See Howard Grief, The Legal Foundation and Borders of Israel under International Law 450-53 (2008). Prof. Benjamin Akzin points out legally objectionable elements in the Churchill White Paper that appear to modify the terms of the Mandate. See Benjamin Akzin, The Palestine Mandate in Practice, 25 Iowa L. Rev. 32, passim (1939-1940).
Allan Gerson claims: "Subsequent ratification of the terms of the Mandate by the Council of the League of Nations on July 24, 1922 must then be seen as incorporating the White Paper's interpretation of the National Home." Allan Gerson, Trustee-Occupant, 14 Harv. Int'l. L. J. 1, 30 (1973). Gerson's view is accepted by Mahnoush H. Arsanjani, United Nations Competence in the West Bank and Gaza Strip, 31 Int'l & Comp. L.Q. 426, 437-38 (1982). David J. Ball likewise wrote: "Never mind that Britain in effect nullified the Balfour Declaration through its White Paper prior to the Palestine Mandate." David J. Ball, Note, Toss the Travaux? Application of the Fourth Geneva Convention to the Middle East Conflict—A Modern (Re)Assessment, 79 N.Y.U. Law Rev. 990, 1021 n.185 (2004).
The basic question is did the League Council at the time they assented to the San Remo Resolution accept the interpretation of the Churchill White Paper? I have not independently researched this issue. I did find this quote from the Minutes of the Permanent Mandates Commission: "[T]he policy set out in the [1939] White Paper was not in accordance with the interpretation [from the Churchill White Paper(?)] which, in agreement with the Mandatory Power and the Council, the Commission had always placed upon the Palestine Mandate." Minutes, Permanent Mandates Commission (P. M. C.), 36th Session, p. 275. Dr. Bernard Joseph thinks the Churchill White Paper‘s interpretation was binding under international law. See Bernard Joseph, British Rule in Palestine passim (1948); see also Benjamin Akzin, The Palestine Mandate in Practice, 25 Iowa L. Rev. 32, 52 & nn.53-56 (1939-1940).
If the Council did approve the Churchill White Paper at the same time they assented to the San Remo Resolution, would the interpretation of the Churchill White Paper still not become binding if it significantly deviated from the plain meaning of the words of the San Remo Resolution, when the League Council, in approving the Mandate, ostensibly did not alter the text of the San Remo Resolution, unless we are to read Article 25 and Article 27 of the Mandate as a proviso into the San Remo Resolution? See Howard Grief, The Legal Foundation and Borders of Israel under International Law 467-68 (2008); cf. Bernard Joseph, British Rule in Palestine 164 (1948) (mentioning that four out of the seven members of the Permanent Mandates Commission ―did not feel able to state that the policy of the [1939] White Paper was in conformity with the Mandate . . . .‖); see also id. at 94-95.
Prof. Nathan Feinberg in regards to the case of the Anglo-American Convention pointed out the legal principle when it comes to interpretation: "As we have seen, the United States Government accepted the interpretation of the Convention advanced by the British Government and, by virtue of the principle eius est interpretari cuius est condere, this interpretation would appear to have become authoritative." Nathan Feinberg, The Interpretation of the Anglo-American Convention on Palestine, 1924, 3 Int'l L.Q. 475, 479 (1950). But Prof. Nathan Feinberg ultimately enunciates a different overriding principle: "It may be seriously questioned whether it is for the benefit of the international relations and the sanctity of treaties that, under the cloak of interpretation, radical changes should be allowed to be introduced in international instruments, with the result that the beneficiaries of such instruments might be deprived of what they had legitimately considered to be their right." Nathan Feinberg, The Interpretation of the Anglo-American Convention on Palestine, 1924, 3 Int'l L.Q. 475, 486 (1950).
Another question is what was the significance of the Zionist Organization's acceptance of the Churchill White Paper, given in a letter on June 18, 1922? See Bernard Joseph, British Rule in Palestine 164 (1948). The Arab Palestine Delegation, which had no official standing in the Mandate, rejected the Churchill White Paper outright. See Isaiah Friedman, British Pan-Arab Policy 11 (2010). Dr. Bernard Joseph stated regarding the Zionist Organization's letter of acceptance: "In view of this letter, it was no longer open to the Jews to contend, from a purely legal point of view, that the interpretation thus put upon the rights and position of the Jewish National Home could be disregarded." See Bernard Joseph, British Rule in Palestine 164 (1948). Dr. Bernard Joseph had been the Legal Adviser of the Jewish Agency for Palestine and had acted as the head of its Political Department, so he might have a bias to accept the Churchill White Paper. Dr. Joseph is arguably wrong, because in your view the Jews had a beneficial interest in sovereignty, not legal sovereignty, and presumably were regarded as a minor in trust law. Though the Jewish Agency was recognized in Article 4 of the Palestine Mandate in dealings with the ―administration,‖ this was a step below the ―Mandatory.‖ See, e.g., Nathan Feinberg, Studies in International Law 268-69 (1979) (―True, recognition of the Jewish Agency was limited in its content, since it was granted a status only vis-a-vis the Palestine Administration and not with respect to the Mandatory Power or the League of Nations. But even in its limited purport, the recognition was an act of far-reaching international significance.‖). Thus, the Jewish Agency was arguably a minor in regards to approving radical reinterpretations or changes to the Mandate. ii. The second reason it is important to stress the San Remo Resolution was an independent agreement is that the San Remo Resolution shows the insertion of Article 25 in the Palestine Mandate and the memorandum on its application approved by the League Council on September 16, 1922, League of Nations O. J. 1189 (1922), were arguably illegal. Dr. Isaiah Friedman said this about the underhanded reason for the memorandum in Isaiah Friedman, British Pan-Arab Policy 341 (2010):
Churchill was conscious of the difficulty and, in September 1922, he asked Young to prepare a memorandum for the guidance of the British representative to the League of Nations. Young elucidated that the Colonial Secretary had decided that the provisions of the Mandate relating to the Jewish National Home should be inapplicable to Trans-Jordania because "the British Government are pledged by their promises to the Sherif of Mecca to recognise and support the independence of the Arabs in that territory." He went on, however, that this reason had been deliberately omitted since it would be most undesirable to bring to the attention of the League's Council that "a pledge, which has never been published, and which His Majesty's Government have no intention of publishing, has been given in respect of part of the territory over which His Majesty's Government have accepted the Mandate for Palestine."
Young's explanation – in a badly phrased sentence – was clumsy, since the promise that had been made to Sharif Hussein was no longer a secret, though the Correspondence in its entirety had been suppressed. That the British Government refrained from using the "pledge" to justify its decision regarding the status of Trans-Jordania was plainly because it had no legal validity. It had never been considered by the Peace Conference, and the Allied Powers did not recognize it. iii. The third reason it should be stressed the San Remo Resolution was independent agreement is because the San Remo Resolution might be helpful regarding the historical formula for the borders of Palestine that might have been agreed to at the San Remo Conference. I read the minutes of the San Remo Conference on this point, but it was a bit too inside ―ballgame‖ for me to comprehend if there was a meeting of the minds regarding all borders, or if the historical formula was for the northern border or all the borders, and if the historical formula had been agreed to at the San Remo Conference or earlier. See also John J. McTague Jr., Anglo-French Negotiations over the Boundaries of Palestine, 1919-1920, 11 Journal of Palestine Stud. 100 (1982).
At the least, the historical formula seems to have been accepted by the French during the negotiations for the Franco-British Boundary Convention of December 1920. J. Stoyanovsky writes in J. Stoyanovsky, The Mandate for Palestine, 204-05 (1928):
The curving line of the [northern] frontier seems to have been drawn in such a way as to comprise within the boundaries of Palestine the most northern Jewish settlements which it was intended to bring within the sphere of the national home policy. In a statement of the French accredited representative to the Permanent Mandates Commission indirect reference is made to the fact that this policy influenced the ultimate decision taken with regard to the delimitation of the Syro-Palestine frontier, although it equally points out that what was claimed for Palestine was ‗an historical frontier.‘ ‗Further, said the French representative, ‗the British Government had strongly insisted that the frontiers of Palestine should be determined according to the Biblical formula from Dan to Beersheba.‘[P.M.C., Minutes of 8th Session, p. 69. See also Report of the High Commissioner on the Administration of Palestine, 1920-1925, Colonial No. 15, p. 55; A Documentary History of the Arab-Israeli Conflict 80 n.1 (Charles L. Geddes ed. 1991) (―The boundaries were agreed upon between France and Great Britain in two separate conventions based, primarily, on the wishes of Lloyd George, upon the boundaries of ancient Israel as established by George Adam Smith in his Atlas of the Historical Geography of the Holy Land, first published in 1908.‖); Minutes by Vansittart and Curzon, 13 March. F.O. 371/5032/2, reprinted in The Rise Of Israel 240-41 (Isaiah Friedman ed., 1987) (―[T]he French have met us on the Prime Minister's Dan-Beersheba formula, though we might argue that we meant – & that it is only fair to mean – the district and not the mere town of Dan. Possibly it might be worthwhile for the Prime Minister to take up this point personally with M. Millerand.‖); Paul Eidelberg, Jewish Statesmanship: Lest Israel Fall 180 (University Press of America, Inc. 2002) ("[N]ot only did Israel capture the Golan Heights in a war of self-defense, but this once barren land was purchased in 1892 by Edmonde de Rothschild from nomadic Arabs for the purpose of settling the area with Jews. (The purchase has been confirmed by Turkish and French authorities and, in 1957, the deeds of purchase were deposited in the Land Office of the Government of Israel."); Bernard Lewis, Palestine: On the History and Geography of a Name, in Islam in History 163 (1993) (―Palestine at that time [of the Franco-British Boundary Convention] included both banks of the Jordan. . . . Between the 1920 and 1923 agreements, a few small changes were made—small, but in the light of subsequent events important. Their purpose usually was to avoid splitting village lands or estates, and allocation of a district to one side or the other was frequently determined by the place of residence of the local large landowner. Thus the western Golan Heights, including the Quneitra triangle, were transferred to Syria from Palestine, to which they had been assigned in the 1920 agreement, in order to avoid splitting the property of Amir Mahmud al-Fawr al-Fadi, a landowner and Bedouin sheik; similarly, the lands south of Lake Tiberias were transferred from Syria to Palestine because their owner, ‗Abbas Efendi, resided in Haifa. . . .‖).]
A legal expert would need to be consulted, but Great Britain and France‘s seeming acceptance of the ―historical formula‖ during the negotiations for the Franco-British Boundary Convention of December 1920 might mean Britain was legally estopped from choosing a different formula in the east and south of Palestine, especially if it is considered a fulfillment of the ―verbal agreement‖ at the end of 1918 between Lloyd George and Clemenceau that gave Palestine from Dan to Beersheba to Britain. See Frischwasser-Ra'anan, Frontiers of a Nation 97-100 (1955), which contains the terms of this ―verbal agreement.‖ But see J. Stoyanovsky, The Mandate for Palestine, 205 (1928) (―The interpretation given by the Mandatory to the above Article [25] has practically resulted in a complete separation between Palestine proper and Transjordan (in spite, this time, of such ‗Biblical formula‘ as may have been considered relevant for the purpose of determining the northern frontier) . . . .‖). It might be relevant to note that in the ―Ihlen Declaration‖ Case, the Permanent Court of International Justice ruled that an oral statement made by Norwegian Foreign Minister Mr. Ihlen during Danish-Norwegian negotiations was itself binding. See W.T. Mallison, Jr., Zionist-Israel Juridical Claims to Constitute the Jewish People Nationality Entity and to Confer Membership in It, 32 Geo. Wash. L. Rev. 983, 1009 (1963-1964).
For a discussion of the demarcation of the southern border of Palestine, besides Att. Howard Grief‘s book, cited supra, see J. Stoyanovsky, The Mandate for Palestine, 203 & n.2&3. (1928); Richard Meinertzhagen, Middle East Diary 1917-1956, at 64 (1960) (map showing that only a sector of Sinai is labeled: "This area was conquered from Turkey by Britain in 1917 without Egyptian help and is still at the disposal of H.M.G."); Bernard Lewis, Palestine: On the History and Geography of a Name, in Islam in History 159-63 (1993); Gabriel R. Warburg, The Sinai Peninsula Borders 1906-1947, in Festschrift : Rëuben R. Hecht (1979) (giving the legal opinion that Egypt gained sovereignty to Sinai when it entered the League of Nations without reservations as to its borders). iv. The fourth reason it should be stressed that the San Remo Resolution was an independent agreement is because if the San Remo Resolution was not an independent agreement, arguably not all the recitals in the Preamble of the Mandate for Palestine would be binding, except what is referred to in Article 2 of the Mandate. The San Remo Resolution gives greater legal weight to at least some of the other recitals. See generally Doreen Ingrams, Palestine Papers 1917-1922, at 102 (1972) (Curzon: ―[T]he Powers had unquestionably recognised the historical connection of the Jews with Palestine by their formal acceptance of the Balfour Declaration and their textual incorporation of it in the Turkish Peace Treaty drafted at San Remo . . . .‖). Dr. Bernard Joseph, who viewed the implementation of the Balfour Declaration as unrelated to Article 22 of the League covenant, see Bernard Joseph, British Rule in Palestine 59 (1948), is one of the jurists who made a mistake in this regard in id. at 60:
Finally, it may be observed that according to the Preamble of the Mandate: "His Britannic Majesty has accepted the Mandate in respect of Palestine and undertakes to exercise it on behalf of the League of Nations in conformity with the following provisions."
It is clear, therefore, that, whatever may be the intention and effect of Article 22 of the Covenant, the Mandatory accepted the Mandate and undertook to carry it out in conformity with the provisions following that clause in the Mandate. Consequently, it would appear to be quite impossible for the Mandatory to act otherwise than in accordance with the express provisions of the Mandate which follow that recital.
The status of Preambles is that they are not generally binding. See generally Meir Rosenne, Understanding UN Security Council Resolution 242 of November 22, 1967, on the Middle East, in Defensible Borders for a Lasting Peace 48 (revised and updated version 2008), http://www.defensibleborders.org/db_rosenneb.pdf; but see David J. Ball, Note, Toss the Travaux? Application of the Fourth Geneva Convention to the Middle East Conflict—A Modern (Re)Assessment, 79 N.Y.U. Law Rev. 990, 1008 (2004) ("Although a preamble is normally devoid of legal force, it can serve as a powerful interpretative device 'by its indication of the general idea behind [treaty provisions] and the spirit in which they should be applied.'").
5. The San Remo Resolution was ostensibly an inter-Allied agreement binding between 4 parties under International Law prior to League assent, but it is debatable if it was enforceable on the rest of the world at that time. At the San Remo Conference was the first time the Balfour Declaration was legalized under international law. Politically speaking, do you agree that for propagandist purposes the date it was adopted at the San Remo Conference should be the date used to hold public commemoration ceremonies such as the one that Mr. Salomon Benzimra's group (full disclosure: I am an acquaintance of Mr. Benzimra) helped organize that Deputy Speaker of the Knesset MK Danny Danon, among other experts and diplomats, attended? See Abe Selig, MK Vows to ‗Raise Awareness of Israel's Rights', JPost.com, Apr. 26, 2010. If the date of the Treaty of Sevres or the date the Mandate for Palestine was confirmed or went into effect is chosen for commemoration that would obscure in the minds of the public its status as an independent agreement.
2. When did the Ottoman Empire lose its sovereignty? It lost its de facto sovereignty when it was defeated by Allied forces. On the date of the Treaty of Sevres in my opinion the then Ottoman government transferred its sovereignty to an unnamed mandatory power, which became England. That is when its lost de jure sovereignty. De jure sovereignty passed to Great Britan but in trust for the Jews until England abandoned its trusteeship in 1948 and de jure sovereignty became vested in the Jews. Until 1948 the Jews had only a beneficial right to de jure sovereignty. In 1920 the Allied Forces had de facto sovereignty. While the Treaty of Sevres was never ratified by Turkey after Kemal Ataturk gained power, its provisions were ignored in the Treaty of Lausanne, but that latter Treaty changed only territorial allocations near Anatolia (Turkey), so the provisions of the Treaty of Sevres remained unchanged.
[SUPPLEMENT: Thanks for your copy of Israel in Fieri. I regret that I must disagree with the conclusions of its author, CH Alexander. After the Allied Forces had conquered Palestine it had de facto sovereignty over it. Article 95 of the Treaty of Sevres, transferred the existing (existing and undisputed for 400 years) de jure sovereignty of the Ottoman Empire to an unspecified Mandatory power or trustee. When the Mandate or trust agreement became effective, the Mandatory power or trustee acquired legal title to the political rights to Palestine and therefore de jure sovereignty was vested in the mandatory power, Great Britain, in trust for the beneficiary, the Jews. At the same time, the Jews acquired equitable title to the exclusive political rights to Palestine. On Great Britain's abandonment of its trust responsibilities in 1948, under International Law, as confirmed by the 1969 Vienna Convention on Treaties, Article 70 1. (b) legal title or de jure sovereignty vested in Israel.]
A. You state: ―On the date of the Treaty of Sevres in my opinion the then Ottoman government transferred its sovereignty to an unnamed mandatory power, which became England. That is when it lost de jure sovereignty.‖:
1. The one potential legal flaw I do see regarding the San Remo Resolution being binding between 4 parties from the time of its adoption at the San Remo Conference is that in your view Turkey had not lost sovereignty at the time of the San Remo Resolution. So did that make the agreement legally deficient? Dr. Bernard Joseph seems to provide an answer in his response to a similar question regarding the Mandate itself. Dr. Joseph states: "Thirdly, even if it could be argued that the Mandatory's position was not formally regularized during the two years until the Treaty of Lausanne was signed, such an objection would no longer obtain after the Peace Treaty took effect." Bernard Joseph, British Rule in Palestine 61 (1948). The Principal Allied Power apparently showed no change of heart in applying the San Remo Resolution after the Treaty of Sevres, since much of the San Remo Resolution was inserted into the Mandates Articles of the Treaty of Sevres. The British representative later stated: "[W]hatever might happen to the Treaty of Sevres, those parts of the treaty dealing with mandates would remain entirely unaffected." Ch. H. Levermore, Third Yearbook of the L. of N., p. 137; see also League of Nations O. J. 546-48 (1922). Therefore, after the signing of the Treaty of Sevres, when in your view Turkey lost sovereignty, the San Remo Resolution it seems would have been formally regularized.
2. There is seemingly nothing inconsistent under international law with stating that the Ottoman government transferred its sovereignty to an unnamed mandatory power, while at the same time in the supplemental e-mail arguing that Great Britain as Mandatory did not acquire legal title until the Mandate went into effect. Barrister-at-Law Charles Henry Alexander stated: "There may, however, be the case of a State whose title is not derived from that of another State, but who cannot be considered an original occupier of the territory. For instance, one State may renounce its title to a certain territory, but before a succeeding State assumes Sovereignty over it there may be an interregnum which does not immediately fit into the classic conceptions of International Law." Charles Henry Alexander, Israel in Fieri, 4 Int'l L.Q. 423, 423 (1951).
3. I do not know your rational for stating sovereignty was transferred to an unnamed mandatory over the Principal Allied Powers. Dr. Bernard Joseph, for instance seems to posit it was the latter who initially gained sovereignty. He states: ―In Article 16 of the Treaty of Lausanne, Turkey renounced its sovereignty respecting the various territories situated outside the frontiers laid down in the Treaty. The frontiers specified were of the area which was to remain Turkish, and excluded Palestine. This renunciation must be deemed to have been in favor of the Principal Allied Powers with which Turkey concluded the treaty.‖ Bernard Joseph, British Rule in Palestine 46 (1948). See also Bernard Joseph, British Rule in Palestine 61 (1948) ("In the first place, the Turkish Government had, naturally, already renounced its rights over the territory by Article 132 of the Treaty of Sevres. If it be said that this Treaty was ultimately left unratified and replaced by another treaty (viz., the Treaty of Lausanne), it is pertinent that the latter reaffirmed this renunciation." United States Representative in the Trusteeship Council and President of the Council Francis B. Sayre similarly stated: "In the case of the former Turkish territories, which became the ‗A‘ mandates, a similar renunciation was contained in the Treaty of Sevres. This treaty did not come into effect. However, Article 16 of the Treaty of Lausanne gave effect to the allocation of these territories. By the time this treaty came into force, the ‗A‘ territories had already been allocated by the Principal Allied Powers. All in all, this theory of title resting in the Principal Allied and Associated Powers would seem to be the strongest case legally." Francis B. Sayre, Legal Problems Arising from the United Nations Trusteeship System, 42 American Journal of International Law 263, 269 (1948).
If it was the Principal Allied Powers, then sovereignty could still have been transferred to Great Britain as the Mandatory at the signing of the Treaty of Sevres, when the San Remo Resolution was regularized, since the San Remo Resolution was an agreement binding between the Principal Allied Powers under international law prior to League assent. Mr Sokolow stated: ―The third progress they had made at San Remo was the fact itself that the Mandate for Palestine had been given to Great Britain. It was now an accomplished fact. Although this fact was not mentioned specifically in the treaty it was most officially confirmed and accepted that Great Britain was going to be the Mandatory Power in Palestine, and at least now they knew where they were. The question of the Mandate was decided.‖ Official Welcome to Zionist Delegates, Jewish Chronicle (London), May 14, 1920, at 25. In the text of the San Remo Resolution, the naming of the Mandatories in French employs not the future tense (seront), but the present tense (sont). Geddes translation of that paragraph is: ―The mandatories chosen by the Principal Allied Powers are [sont (ed.)]: France for Syria and Great Britain for Mesopotamia and Palestine.‖ A Documentary History of the Arab-Israeli Conflict 81 (Charles L. Geddes ed. 1991).
4. It seems to be Prof. Eugene V. Rostow's view as well that the Ottoman Empire lost its sovereignty over Palestine in the Treaty of Sevres. See Eugene V. Rostow, The Perils of Positivism: A Response to Professor Quigley, 2 Duke J. Comp. & Int‘l L. 229, 235 (1992) (―After the First World War, the peace treaty between Turkey and the victorious Allies – the Treaty of Sevres – stripped Turkey of its Arab territories.‖).
5. You do not specify the legal principle you are invoking for the transfer of sovereignty. Am I correct in assuming it is ―informal expression of consent‖ (Brownlie)? See Howard Grief, The Legal Foundation and Borders of Israel under International Law 289 (2008).
6. In the package of e-mails Bernice sent to you Mr. Brand, I stated: ―It seems to me Turkey lost sovereignty prior the signing of the Treaty of Sevres on August 10, 1920, as I presume from the fact that the transfer from a British Military Administration to a Civil Administration was effected on July 1, 1920, prior to the signing of the Treaty of Sevres.‖ Dr. Isaiah Friedman gives this account: ―On 14 April 1920 he [Colonel Richard Meinertzhagen] advised Lord Curzon that the Military Administration had encouraged the Arabs in their belief that by acts of violence [the Nebi Musa riots] they would sabotage Zionism. Curzon and Lloyd George acted on Meinertzhagen's advice; the Military Administration was terminated and replaced by a Civil Administration headed by Herbert Samuel.‖ Isaiah Friedman, British Pan-Arab Policy, 1915- 1922, at 8 (2010). The question comes to: Does establishing a civilian administration fall within the laws of war, or is it an indication of sovereignty? Dr. Bernard Joseph‘s comments might relate to this question: ―[S]o long as the territory remained enemy-occupied territory, its conquerors (Great Britain and its allies) were entitled, in international law, to administer the territory until the peace was concluded.‖ Bernard Joseph, British Rule in Palestine 61 (1948). An examination of Article 11 of the Mandate for Palestine might be relevant in this determination. See Librairie Droz, Cour Permanente de Justice Internationale 1922-1945, at 1589 et seq. (1926), available at http://books.google.com/books?id=Q_eK5OCftFoC&pg=PA1589&dq. Would not the San Remo Resolution presumably also have been an act of sovereignty since it allocated Mandates? In a Letter from Gastao Da Cunha, President of the Council of the League of Nations, to Bainbridge Colby, U.S. Secretary of State (March 1, 1921), in Division of Near Eastern Affairs, Department of State, Mandate for Palestine 45 (1927), President of the League Council Da Cunha wrote:
The League of Nations Council would remind your excellency that the allocation of all the mandated territories is a function of the Supreme Council and not of the Council of the League. The League is concerned not with the allocation but with the administration of these territories. Having been notified in the name of the Allied and Associated powers that all of the islands north of the equator had been allocated to Japan, the Council of the League merely fulfilled its responsibility of defining the terms of the mandate.
Incidentally, have you studied if the Geneva Convention and Hague Regulation, or some other customary laws regarding ―occupation‖ apply in the case of territories not recognized as belonging to any state, or even if a state has sovereignty over them? I attempted to write a paper on it, but gave up since it was too outside my knowledge-base. I did come to preliminary conclusions though. Ted Belman, who is a retired attorney and Editor of Israpundit, wrote a good piece that shared my preliminary conclusion that the Fourth Geneva Convention does not technically apply and Israel applies it only de facto. See Ted Belman, The Truth About ―the Occupation‖ and ―the Settlements,‖ IsraPundit.com, Aug. 31, 2010, http://www.israpundit.com/archives/27051.
7. You state Turkey lost its sovereignty in the Treaty of Sevres. That might be the least controversial alternative date when the transfer of sovereignty took place. A possible rebuttal is that how come Turkey after they must have seen the references in paragraphs 1 and 4 of Article 22 of the League Covenant that declared that they had lost sovereignty, presumably did not object prior to the San Remo Conference? Was Turkey aware in advance that the allocation of Mandates would take place at the San Remo Conference? If it is helpful and doable, one might look up in Turkish archives about how Turkey felt about the Mandate system as it applied to Palestine in internal documents. Louis Lipsky in an entry dated October 1922 relates this interchange he had with his friend: ―‗He interrupted me vehemently, 'Yes, tell me about the Turks; tell me about the French; tell me about Emir Abdullah; tell me about the Eastern boundaries [of Palestine].' ‗So I said: 'Listen to me, you donkey! Read this morning's paper. The Turks are resigned to the Syrian and Palestine Mandates; all they want is to get back Constantinople and Thrace. The Turkish flurry is over.'― 1 Louis Lipsky, Thirty Years of American Zionism 297 (1927).
8. I found a minor error in Att. Howard Grief‘s book that relates to this issue. Att. Grief stated: ―With the conclusion of an armistice agreement (the Mudania Convention of October 11, 1922) between the Allied Powers and the Nationalist Government of Turkey headed by Mustafa Kemal, which in effect voided the Treaty of Sevres and necessitated the negotiation of a new formal peace treaty, the reference to Article 132 of the defunct treaty in the Preamble of the Mandate for Palestine had to be deleted.‖ This is chronologically impossible because the confirmation of the Mandate on July 24, 1922 preceded the Mudania Convention. I attempted to research the real reason references to the Treaty of Sevres were removed from the Mandate text, but I did not have ready access to the minutes of the League Council. I did find two possible reasons from second-hand sources: 1) It was obvious that the Treaty of Sevres would not be ratified. See Librairie Droz, Cour Permanente de Justice Internationale 1922-1945, at 1589 (1926), available at http://books.google.com/books?id=Q_eK5OCftFoC&pg=PA1589&dq 2) The references were removed to remove a potential difficulty the U.S. had in the simultaneous negotiation of the Anglo-American Convention. Cf. Division of Near Eastern Affairs, Department of State, Mandate for Palestine 81 (1927).
B. You state: ―In 1920 the Allied Forces had de facto sovereignty.‖:
1. Att. Howard Grief in his petition to the Israeli Supreme Court for an order nisi regarding Oslo contends: ―[W]here military or civilian sovereignty exists in a de facto way, it would be inaccurate to speak of de facto sovereignty, unless there is also de jure sovereignty pre-existing it or inherent in it. Where there is no pre-existing de jure sovereignty, there can only be ‗occupation,‘ rather than de facto sovereignty.‖ HCJ 3414/96 Weiss v. Government of Israel.
Mark Levine, in The Status of Sovereignty in East Jerusalem and the West Bank, 5 N.Y.U. J. Int‘l L. & Pol. 485, 493 (1972) appears to use ―de facto sovereignty‖ in a legal but mostly political sense when he claims:
It may be argued in Jordan's favor, however, that after nineteen years of occupation it assumed de facto[40] sovereignty in East Jerusalem and the West Bank. . . .
. . . .
40. For these purposes the term de facto sovereignty describes a situation in which a government has been established with an active judiciary, legislative, and executive, in which the inhabitants act as if they were under that government‘s sovereignty, and in which there exists some amount of world respect for this status. This is to be distinguished from a de jure sovereignty which is also valid under international law.
One may also suggest that Jordan did acquire sovereignty over the area through prescription. Lauterpacht defines "prescription': . . . .
3. A "mandate" is a trusteeship. Actually that is the term the UN uses for the very same arrangement now that the League of Nations then called a "mandate".
You ask: What is the most probable view about where sovereignty resided in mandated territories? Is there any overt flaw with the opinion that nominal sovereignty was vested in the inhabitants of mandated territories?
I am unfamiliar with the term "nominal sovereignty". I think the best way to explain this is to say that I do not agree with Rashid Khalidi that the Allies ignored the Arabs "political rights" to self government. It expressly provided for preservation of the Arabs "civil rights" and their "religious rights". It could not preserve their political rights because they never had had any collective political rights to self government. The term "civil rights" includes the individual right to vote in a democratic government but does not include the collective right to self government. Those are political rights. Under the doctrine "Expressio unius est exclusio alterius" The express mention of one thing excludes all others. Items not on the list are assumed not to be covered by the terms of the Agreement. The list included civil rights and religious rights, not political rights.
A. You state: ―A ‗mandate‘ is a trusteeship.‖:
1. The following question has come up that I would like an answer to. Taking into consideration what Att. Howard Grief‘s definition of a mandate is infra: is the Mandate for Palestine setting forth the job the ―British Mandate‖ or is the job itself embodied in the Mandate for Palestine the ―British Mandate‖? What I am getting at is: is it appropriate to use the term ―British Mandate for Palestine‖ when the Principal Allied Power conferred the Mandate for Palestine and the League confirmed it?
B. You state: ―I am unfamiliar with the term "nominal sovereignty".:
1. You would have to search law books if this is an established term, particularly in regards to a non-state actor.
2. Att. Howard Grief used ―nominal sovereignty‖ in the same sense as I did in on page 140 of his book, cited supra; he used the term in the sense of a state holding it on page 280 of his book; Barrister-at-Law Charles Henry used ―nominal title of sovereignty‖ on page 425 in his article, but only in regards to a state, cited supra.
3. Att. Howard Grief gives the definition of the term in his petition: ―De jure or legal sovereignty can exist independently of de facto or practical sovereignty, but then it is only theoretical or nominal, without any reality. De jure sovereignty becomes real or actual only when it coexists with de facto sovereignty. . . .‖ HCJ 3414/96 Weiss v. Government of Israel.
4. You already implied this view has a clear flaw if looked at from the law of trusts.
5. I might as well bring it up here. Att. Howard Grief cited in his book the Treaty of Lausanne as justification for why mandated Palestine was already a state. See Howard Grief, The Legal Foundation and Borders of Israel under International Law 121, 295-96 (2008). A Wikipedia editor in a Discussion page on the Mandate for Palestine stated: ―The Lausanne treaty is irrelevant here, because it uses the French term ‗état‘ as a basket term to any geopolitical entity. According to your logic Romania, Greece, Iraq and Mandate Palestine were in the same position during the 1920s, which is not the case according to ALL sources. Wikipedia DOES NOT use the term ‗state‘ as a basket term, hence your edits are misleading.‖ See http://en.wikipedia.org/wiki/Talk%3ABritish_Mandate_for_Palestine
C. You state: ―It could not preserve their political rights because they never had had any collective political rights to self government. The term ‗civil rights‘ includes the individual right to vote in a democratic government but does not include the collective right to self government.‖:
1. The question should be examined whether Israel gave its Arab citizens civil rights or political rights under its Proclamation of Independence? Prof. Paul Eidelberg (a non lawyer) states in Paul Eidelberg, Jewish Statesmanship: Lest Israel Fall 30 (University Press of America, Inc. 2002):
Turning to the one conspicuous flaw that can be remedied the Declaration proclaims the establishment of Israel as a Jewish state yet prescribes "complete equality of... political rights to all its inhabitants irrespective of religion..." Although various commentators have noted this rather obvious contradiction, none, to my knowledge, have resolved it. How, indeed, can Israel remain a Jewish state should its non- Jewish inhabitants become a majority?
As indicated in the Introduction, if Israel's Arab inhabitants, as a result of their prolific birthrate, were to become the majority, then given the egalitarian principle of "one adult/one vote", Muslims would eventually dominate the Knesset and put an end to the Jewish state prescribed in the Declaration. . . .
He gives a possible rationale for ―equal political rights‖ on id. at 62:
[T]his fear [to be deemed "racist" by the international community (ed. E.M.)], I believe, very much explains why the authors of the Declaration of Independence and of the Nationality Law granted equal political rights to Israel's Arab inhabitants. Underlying this fear, however, was the secular orientation or diminished national pride and purpose on the part of the founders of the State. The reversion of Israel to Palestine should be understood in this light.
It is stated on the Knesset website at http://www.knesset.gov.il/lexicon/eng/megilat_eng.htm:
Even though the proclamation is neither a law nor an ordinary legal document, it has legal validity, and its first and third sections were made use of by the Supreme Court for the purpose of normative interpretation.
The second section is the primary source of authority in the Israeli legal system. Some were inclined to view the Proclamation of Independence, and especially its declaratory section, as a constitution, but the Supreme Court stated, in a series of decisions, that the proclamation does not have constitutional validity, and that it is not a supreme law which may be used to invalidate laws and regulations that contradict it.
The question therefore is: is the term ―political rights‖ in the Proclamation of Independence a stylistic error; a Hebrew grammarian should check what words are used in Hebrew as well.
Prof. Paul Eidelberg elsewhere in his book quotes PM Yitzhak Rabin‘s implied position on ―equal political rights‖ on id. at 31 (emphasis in original):
Israel‘s political and intellectual elites have studiously avoided this dilemma. They fear that any attempt to limit the political equality of Arab citizens will be denounced as ―racism‖. Nevertheless, on May 6, 1976, the year after the UN General Assembly equated Zionism with racism, then Prime Minister Yitzhak Rabin said to high school graduates about to enter the enter the army:
The majority of the people living in a Jewish State must be Jewish. We must prevent a situation of an insufficient Jewish majority and we dare not have a Jewish minority... There is room for a non-Jewish minority on condition that it accept the destiny of the State vis-a-vis the Jewish people, culture, tradition, and belief. The minority is entitled to equal rights as individuals with respect to their distinct religion and culture, but not more than that. (See note number 211 regarding Denmark, Holland, Japan, etc.)
Rabin's last sentence obviously refers to Israel's Arab inhabitants. It clearly implies that their equal rights as individuals do not include equal political rights! This remarkable statement contradicts Israel's Declaration of Independence. . . .
D. You state: ―Under the doctrine ‗Expressio unius est exclusio alterius‘ The express mention of one thing excludes all others. Items not on the list are assumed not to be covered by the terms of the Agreement. The list included civil rights and religious rights, not political rights.‖:
1. Louis J. Gribetz, of the N.Y. Bar, gave an apparently related position in Louis J. Gribetz The Case for the Jews 67 (1930):
[I]t follows necessarily that everything else may be done which does not prejudice such rights [in the proviso of the Balfour Declaration].
"It is a rule of construction acknowledged by all," says the great Chief Justice Marshall of the Supreme Court of the United States, "that the exceptions from a power mark its extent; for it would be absurd, as well as useless, to except from a granted power that which was not granted—that which the words of the grant could not comprehend."
The only question is: If Dr. Bernard Joseph is correct in his contention that the provision dealing with the Balfour Declaration was not a technical application of Article 22, Bernard Joseph, British Rule in Palestine 60 (1948), quoted infra, could not Article 22 as cited in the San Remo Resolution add additional elements to the list? I wrote in the e-mail package forwarded by Bernice to you Mr. Brand. ―As mentioned . . . the most natural interpretation in my view is that paragraph 1 of Article 22 did not add to the Balfour Declaration. Article 22 was written with the Balfour Declaration in mind, so the Balfour Declaration can be viewed as an elaboration of Article 22 even though it was written beforehand.‖ David Hunter Miller‘s, who ―cooperat[ed] from beginning to end in the making of the Covenant of the League of Nations,‖ 1 David Hunter Miller, Drafting of the Covenant, at vii (1928), stated in id. at 104: ―Turkey was another matter [for London (ed. E.M.)]; Egypt, the Suez Canal, the Persian Gulf, the Balfour declaration regarding Palestine, the rather vague commitments to the Arabs and the various agreements with the French and the Italians about Syria or Cilicia or Anatolia were all factors.‖ As for the United States, he mentions on the page before: ―From a selfish point of view, the United States had almost no interest in most of the problems presented. Every American would have regarded the acquisition of any territory in Africa, in any form, as a burden. Our interest in Turkey was sentimental only and even sentimentally was substantially limited to Armenia; with the possible exception of Mosul, ‗the open door‘ as to Turkey, meant hardly more than a phrase.‖ Id. at 103. The Intelligence Section of the U.S. delegation to the Paris Peace Conference wrote a recommendation that appears to echo the Balfour Declaration: ―It is recommended that the Jews be invited to return to Palestine and settle there, being assured by the Conference of all proper assistance in so doing that may be consistent with the protection of the personal (especially the religious) and the property rights of the non-Jewish population, and being further assured that it will be the policy of the League of Nations to recognize Palestine as a Jewish state as soon as it is a Jewish state in fact.‖
The proof of the pudding is that the French inserted a process verbal to the San Remo Agreement in which they said they understood the agreement would not impair the existing rights of the non-Jewish inhabitants of the territory subject to the agreement. It did not. The Arabs local to Palestine had never had political rights and certainly no "existing political rights". They had been ruled by the Turks from Constantinople for 400 years from 1520 to 1920. Later they were ruled by the British from London from 1920 to 1948, and by the Jordanians from Amman from 1948 to 1967. They had no political rights to impair after 1967. Before 1967 they asserted no political rights. All they had in 1948 was a threat of violence if they did not get the political rights to all of the remainder of Palestine.
Actually, in the UNSCOP hearings that led up to the UN action trying to appease the Arabs to avoid violence by recommending that they get political rights to a part of the remainder of Palestine,(after TransJordan had been severed,} Ben Gurion said "we are entitled to Palestine as a whole, but we will be ready to consider the question of a Jewish State in an adequate area of Palestine" Radosh, "A Safe Haven" p. 229. Since the Arabs went to war, they forfeited the right to rely on the recommendation of a grant of part of Palestine by the UN because it was in effect an offer to part of Palestine in exchange for the Arabs renouncing violence. It was not a grant because a grant would have been inconsistent with the terms of the Mandate.
E. You stated: ―Actually, in the UNSCOP hearings that led up to the UN action trying to appease the Arabs to avoid violence . . . .‖:
1. Representative of the Jewish Agency David Ben-Gurion's oral evidence to the United Nations Special Committee on Palestine on 7 July 1947, which is the original source you quoted from, stated: ―Although we knew we were entitled to an entire country, [in 1937] when the British Government came and told us the result of that Commission, they said, you are right, but this will require force and we do not want it and we cannot do it, and therefore we tell you here is a compromise. The majority said, that they were willing to consider it.‖ I have not independently researched this, but if Britain was one of the people who denied wanting (at least the threat of) violence, it does not smack of truth, and it is logical that an armed Jordan might have factored into Ben-Gurion‘s decision to capitulate on partition. According to a paper by an undergrad Britain presented the issue of Palestine to the U.N. in February 1947 because Britain was out of funds and wanted the U.N. to sanction their continuing to administer Palestine ―for military purposes and for access to Persian oil reserves.‖ See Sushama Amrita Saijwani, Paper in in Partial Fulfillment of the Prerequisite for Honors in International Relations 80-82 (Apr. 24, 2003). I have almost no independent knowledge on this subject. Britain seemingly wanted a Jewish defeat by arming Jordan east of the Jordan River, while at same time condemning Jewish militias west of the Jordan River as illegal. Regard what Chaim Weizmann wrote in the penultimate paragraph of the epilogue of his autobiography, presumably written in August 1948:
The following day I set sail for Europe. It had been my original intention to go again to England for personal and family reasons. I now felt that I was no longer free to do so. Arab armies were attacking Israel by land and from the air; the spearhead of this aggression was the Arab Legion of Trans-Jordan, equipped by British resources, financed by the British Treasury, trained and commanded by British officers. By a particularly bitter twist of historical irony, the main operations of this force were directed against the Holy City. The Hebrew University and the Hadassah Medical Center were under bombardment; Jewish shrines in Jerusalem, which had survived the attacks of barbarians in medieval times, were now being laid waste. Liberal opinion throughout the world, and especially in the United States, was profoundly shocked. I had always believed that an anti-Zionist policy was utterly alien to British tradition, but now an atmosphere had been created in which the ideals of the State of Israel, and the policies of Great Britain, under Bevin's direction, were brought into bloody conflict. I had no place in England at such a time, and I felt it to be a bitter incongruity that I should not be able to set foot in a country whose people and institutions I held in such high esteem, and with which I had so long and so stubbornly sought to link the Jewish people by ties of mutual interest and co-operation. I decided to arrange my affairs in France; for that country, my wife and I, accompanied by Mr. Ivor Linton, Political Secretary of the London Office of the Jewish Agency, set sail on May 26. From France we proceeded to Switzerland, where I planned to take a much-needed rest before I went on to Israel to assume my duties.
F. You stated: ―Ben Gurion said ‗we are entitled to Palestine as a whole, but we will be ready to consider the question of a Jewish State in an adequate area of Palestine‘ Radosh, ‗A Safe Haven‘ p. 229.‖:
1. A group of eminent jurists also stated in a petition to the U.N.: "Every consideration of fairness, equity and law supports the case for a Jewish State in all of Western Palestine. This and more was what was promised by the Balfour Declaration. This was the pledge of the world community in the League of Nations Mandate. On the strength of these commitments, Jews the world over have lavished their labor and money to rebuild their Homeland." Simon H. Rifkind et al., The Basic Equities of the Palestine Problem 106 (1947).
2. I had read Ben-Gurion‘s same testimony on the internet, which I have quoted above, and have used the same quote in personal e-mails. He also stated: "I said [in these current proceedings] that in a part of Palestine we do not need any transitional period [after the Palestine Mandate ends]. If it is the whole of Palestine [I assume west of the Jordan River (ed. E.M.)], we may need a short transitional period." I believe a possible reason the Anglo-American Commission of Inquiry did not recommend a Jewish or Arab state is because it would take too long to form either, and realistically Britain wanted out of Palestine. Cf. Bartley C. Crum, Behind the Silken Curtain 264 et seq. (1947). [I am confused because this contradicts the undergrad paper I just quoted supra.]
Chairman of the Jewish Agency Ben-Gurion defended his support of the partition principle at the 20th Zionist Congress in Zurich in August 1937. This purported incident is found in Yehuda Avner, Counter-factual Thinking, Jerusalem-Post, Nov. 11, 2005, at 6, Ben-Gurion speaking first:
"This is the only way to transform Palestine into Eretz Yisrael. And if the capacity of the British mandate to bring about the rapid multiplication of Jews in this country is weaker than that of establishing a state then I unhesitatingly choose the state." [Insert: This followed the November 14, 1935 First Ordinance to the Reich Citizenship Law in Germany that specified ―a Jew cannot be a Reich citizen.‖ (Elon ed.)]
"That is a dishonorable breach of trust heckled a man from the floor, his voice trenchant and his eyes accusing. Surrendering a part of Eretz Yisrael in favor of a dwarf state is a betrayal of all the Jewish generations who have prayed and wept for the return to Zion."
A rumble of approval burbled around the hall.
Ben-Gurion stared back at him his eyes daggers and in words full of bite shot Do you think the borders of the Peel Commission will be our final boundaries?
"What else?" badgered the man. He wore a tab identifying him as a Mizrachi delegate from Warsaw named Moscowitch.
"If the Arabs attack we shall expand those borders thundered Ben-Gurion. The Arabs view our enterprise as dangerous to their national future so they will surely fight the Jewish state whatever its borders. And we shall defend our state in whatever extended borders we can possess."
Ben Gurion also qualified his support of partition in another purported quote from 1937 available at http://www.freeman.org/m_online/dec03/right.htm: ―I have to make a remark about principle. If we were offered a [partitioned] Jewish state in the western Land of Israel in return for our relinquishing our historical right over the whole Land of Israel, then I would postpone the state.‖
G. You state: ―Since the Arabs went to war, they forfeited the right to rely on the recommendation of a grant of part of Palestine by the UN because it was in effect an offer to part of Palestine in exchange for the Arabs renouncing violence.‖:
1. Expert on international law Jonathan Meyer in Jonathan M. Meyer, Legal Letters on Israel's Rights to Jerusalem, Freeman.org, Sept. 1996 sets forth the principle "actions taken, in pari delicto, bars a party from asserting a claim that has been abrogated as the result of intentionally culpable conduct." Applying this principle, Att. Meyer argues that since the Palestinians voted in the Jordan‘s elections, among other actions collaborating with the aggressor, they therefore forfeited their rights to an independent homeland.
2. An additional question can be raised whether in agreeing to the partition plan Israel ceded its rights to land outside the partition boundaries? I answered this question in an e-mail to a Canadian attorney on December 7, 2009, which I shall quote my words from.:
Since I mentioned it in the previous email, I will confirm that duress was one of the arguments Att. Howard Grief gave for the Jewish acceptance of the Partition Plan. I read the account of Bartley C. Crum, who toured the DP's camps [after World War II] in a couple countries in his official capacity as Member of the Anglo-American Commission. The picture he painted in his book was one of continuing discrimination against Jews, the feelings of impermanency of those living there, and the stated desire of many of them to move to Palestine. This combined with the fact that Britain was restricting immigration in line with the 1939 White Paper, which the majority on the Mandates Commission voted violated the terms of the Mandate, combined with the fact that British went on to aid the Arabs in their genocidal war against the nascent state of Israel, seems to me like a solid case for duress.
According to Howard Grief, Israel ―discarded‖ the Partition Plan through two proclamations on August 2, 1948 and September 2, 1948, which according to him annexed west Jerusalem and other portions of former Mandated Palestine that Israel captured beyond the U.N. partition boundaries designated for the Jewish state. PM Ben-Gurion made this rejection very explicit as it related to Jerusalem on December 5, 1949 when he stated in the Knesset: ―We cannot today regard the decision of November 29, 1947 as being possessed of any further moral force since the United Nations did not succeed in implementing its own decisions. In our view, the decision of 29 November about Jerusalem is null and void.‖
In addition, Israel was arguably a minor under trust law when it issued its Proclamation of Independence, which was issued before British Mandatory rule was officially terminated. [This argument might be from Att. Howard Grief‘s book.]
Also, I note that Harry Truman asked his lawyer friend Oscar Ewing for help. Ewing, in 1948, after investigating the legal claims of the Arabs and Jews respectively, concluded hat the Jews had sovereignty equally valid to the grants of sovereignty the Allies had made to the 21 Muslim states. Id at p. 289. Julius Stone, a renowned International Lawyer, reached the same conclusion that satisfied President Regan and all subsequent American Presidents until Obama. www.aijac.org.au/resources/reports/international_law.pdf But to promote peace negotiations, as a matter of policy they disfavored Jewish construction in the West Bank and Gaza.
H. You state: ―Also, I note that Harry Truman asked his lawyer friend Oscar Ewing for help. Ewing, in 1948, after investigating the legal claims of the Arabs and Jews respectively, concluded hat the Jews had sovereignty equally valid to the grants of sovereignty the Allies had made to the 21 Muslim states. Id at p. 289.‖:
1. That is very informative. If you know the original source, I could attempt to track it down sometime.
2. I found a law journal article written in 1947-48 by a U.S. government official who said that self-determination favors a Jewish state in all of Palestine. Abraham C. Weinfeld, who was Degree of Doctor Juris, Univ. of Vienna, Austria, 1920, LL. B., Columbia University, 1926, member of the Bars of New York, District of Columbia, and U. S. Supreme Court, member of the staff of the Solicitor's Office, U. S. Dept. of Agriculture, stated the same thing in a 1947-48 law journal article: ―The Jewish people has acquired the right to establish a national home in Palestine pursuant to the mandate of the League of Nations and the Anglo-American convention of 1924.‖ Abraham C. Weinfeld, A Jewish State In Palestine And Arab Self- Determination, 21 Temp. L.Q. 223, 223 (1947-1948). He also states: ―The Arabs may be entitled to self-determination in all the vast territories they occupy from Morocco to Iran, including about 1,650,000 square miles in the previously mentioned seven Arab states alone. But the establishment of a Jewish state in Palestine, which with its 45,000 square miles-a figure including Transjordan is a mere drop in the Arab bucket, is as essential to the Jewish people as is water in an arid country.‖ Id. at 233.
After long study but before even before I read Howard Grief's book I also came to the conclusion that Israel had sovereignty over all of Palestine except Gaza and Jordan. My youngest son bought me a copy of his book for my 80th birthday. However after reading his book, I was obliged to defer to him and his excellent exposition.
I. You state: ―After long study but before even before I read Howard Grief's book I also came to the conclusion that Israel had sovereignty over all of Palestine except Gaza and Jordan.‖:
1. I assume the Gaza executive agreement is why you do not believe Israel has sovereignty there. There are several possible reasons why the Executive Agreement on Gaza did not cede sovereignty. [See http://www.jewishvirtuallibrary.org/jsource/Peace/weissglasrice.html; http://www.jewishvirtuallibrary.org/jsource/US-Israel/bushletter.html.]: i. Obama‘s violation (or denial up till now) of it is a potential ground for Israel to void the agreement. See, e.g., Malvina Halberstam & Nathan Lewin, A Breach of Contract, Jerusalem Post, Oct. 28, 1996, at 6 (―[T]he Vienna Convention on Treaties, generally considered a codification of customary international law, provides that a material breach by one of the parties to an international agreement entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part (Article 60(1)).‖). ii. Whatever the status of the Executive Agreement, it arguably could not prejudice Israel‘s current legal rights to Gaza. Secretary of State Warren Christopher U.S. signed the Declaration of Principle as a Witness. Article IV of that agreement stated: ―The two sides view the West Bank and the Gaza Strip as a single territorial unit, whose integrity will be preserved during the interim period,‖ while by the same token Article XIV provided: ―Israel will withdraw from the Gaza Strip and Jericho area, as detailed in the protocol attached as Annex II.‖ The Weissglass Letter confirmed that one of the understandings in the Executive Agreement on Gaza was: ―As the Government of Israel has stated, the barrier being erected [in Judea and Samaria] by Israel should be a security rather than a political barrier, should be temporary rather than permanent, and therefore not prejudice any final status issues including final borders, and its route should take into account, consistent with security needs, its impact on Palestinians not engaged in terrorist activities.‖ Article 31(8) of the Israel-PLO Interim Agreement more explicitly provided: "The two Parties view the West Bank and the Gaza Strip as a single territorial unit, the integrity and status of which will be preserved during the interim period." The Israeli public must be told that the Gaza Executive Agreement did not change the status of Gaza, because the perception is arguably worse than the reality. iii. Israel has said it will enter negotiations without preconditions, no mention of settlement blocks. Regarding the condition that the PA recognize Israel as a Jewish state, Netanyahu‘s Office stated: ―The prime minister has never made the recognition of Israel as a state of the Jewish people a precondition to peace negotiations and dialogue with the Palestinians.‖ Israel PM 'Not Setting Conditions' for Peace Talks, AFP, Apr. 19, 2009. iv. The Bush Letter states that "[i]n light of new realities on the ground, including already existing major Israeli populations centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949.‖ But how can the U.S. force this expectation upon the PA, which was not a party to the executive agreement? The peace agreement being negotiated between the PA and Israel is not a treaty of surrender after all. v. If a secret Executive Agreement has been signed with Israel, I wonder if it would be legal under international law. See Howard Grief, The Legal Foundation and Borders of Israel under International Law 27 (2008) (―It is therefore evident that the rules of international law now make it impossible for secret treaties and agreements to ever again become a tool or means of international diplomacy as they did in World War I in regard to the disintegration of the Ottoman Empire.‖). vi. The election and takeover by Hamas in Gaza post-agreement is a fundamental change of circumstance that might entail its suspension. Elyakim Ha'etzni, Oslo - And The "Sanctity Of Contracts", Maccabean Online, Dec. 1996 (―There is another principle in international law, that international obligations are made ‗Subject to the Prevailing Circumstances‘ (‗Rebus Sic Stantibus‘). Serious changes in circumstances sometimes entail changes in treaties, even their suspension. . . .‖). vii. Even if Israel did cede Gaza, it has not been recognized as a state. In the considered opinion of Tucker Smith, JD, LL.M. (International Law), Lt Col USAFR (ret), the Co‐author "Seventh Psalm": "Gaza is not a formally‐defined, internationally‐recognized state. It is, at best, a protectorate or a territory…but certainly it does NOT enjoy the status of international 'statehood' that would entitle such an entity to claim sovereignty over her national borders and the land within." Ted Belman, Bomb Gaza Before Invading. [Reposted], Israpundit.com, Jan. 17, 2009. Therefore, if Israel enters Gaza for legitimate self-defense reasons, it arguably could annex it. viii. Even if Gaza becomes a Palestinian state, Jews would still arguably have civil and religious rights to live and pray there. In the Lecture Delivered by Attorney Howard Grief at the Menahem Begin Heritage Center, Jerusalem (Oct. 14, 2009), Att. Howard Grief stated: ―The right of individual Jews to live or settle in what was once called Eastern Palestine, now the Hashemite Kingdom of Jordan, has never been legally revoked or altered, and remains in full theoretical force today under international law, despite Jordan‘s illegal exclusion of Jews from its territory.‖ Eugene V. Rostow did not dismiss the possibility that individual Jewish rights were inalienable in Eugene V. Rostow, Resolved: Are the Settlements legal? Israeli West Bank Policies, New Republic, Oct. 21, 1991. His rationale based on Article 80 of the U.N. Charter is wrong though. See Jacques Gauthier, Thesis 550 (2007).
Howard Grief states why in his opinion Israeli sovereignty stemming from the San Remo Resolution is inalienable under international law on pages 191-92 of his book, cited supra:
The non-exercise of Jewish legal rights and title of sovereignty over those parts of Judea and Samaria still remaining under Israel's control will not negate them, but will leave them open to challenge and doubt. Insofar as the Jewish People are concerned, their rights and title to the Land of Israel are imprescriptible, indefeasible and inalienable. They cannot be permanently lost, annulled or transferred either under Jewish Law, known in Hebrew as halakha, where the Land of Israel is the everlasting legacy of the Jewish People, or international law. Proof of this is seen in the fact that de jure sovereignty of the Jewish People over the Land of Israel under international law was resurrected after a lengthy period of de facto non- existence lasting more than eighteen centuries. Thus international law explicitly recognized the pre- existing right of the Jewish People to the Land of Israel, first when the Principal Allied Powers decided in 1919 and 1920 to create Palestine as the national home of the Jewish People and second, when the Mandate for Palestine was confirmed for that very purpose in 1922. Had no such right, derived from the historical connection of the Jewish People with Palestine, actually existed, there could have been no recognition of it under international law. Such recognition was therefore declarative in nature, rather than constitutive. De jure sovereignty over the Land of Israel extends today in favour of the Jewish people and its assignee, the State of Israel, as it once did in ancient times, during the First and Second Temple Periods, over all areas of the Land, whether incorporated into the State of Israel or lying outside its formal borders. By contrast, Israel's de facto sovereignty extends only to those areas of the Land of Israel under the State's direct and effective control.
Dr. Yoram Shifftan (a non-lawyer) stated in Yoram Shifftan, A Legal Challenge To Sharon's Uprooting Policy, Think-Israel.org, Mar.-Apr. 2005:
In previous articles(1), I dwelt on the very stringent conditions of gifting national land, but I have come to realize that even if the stringent conditions of such gifting were realized (which is far from being the case), such a gifting would still not be legal.
In order to show the fundamental illegality of Sharon's contemplated uprooting it is important to understand that the Jewish people are the beneficiary of Palestine as a "sacred trust" made by the community of nations. The beneficiary of this trust, the "sacred trust of civilisation" as it was called, is the Jewish people everywhere in the world and for all times. The beneficiaries are not just the Jews that live in Palestine and not just the present generation of the Jewish people. All future generations as well as today's are the true beneficiaries. This is the foundation of our argument.
Ted Belman, Editor Israel Pundit, stated in a letter to me on Jan. 2, 2008:
Another question that concerns me is the matter of the trust created by the Mandate in favour of the Jewish people. It is said that only the beneficiaries can change the terms of the trust. But surely the beneficiaries are looked upon as a class or collective and can be represented by the Jewish Agency as it them [sic - then (Elon ed.)] was or the Government of Israel.
Att. Howard Grief, who apparently got a similar e-mail, responded on Jan. 2, 2008 to Mr. Ted Belman:
I discuss the question of whether or how the Mandate for Palestine could have been changed in my forthcoming book. The Jewish Agency never had nor does the Government of Israel presently have the legal authority to voluntarily cede parts of the Land of Israel, except for minor border rectifications. And, as I have pointed out above, an agreement to cede territories made under duress rather than being done voluntarily, is not a legal act and can therefore be cancelled once such duress ends.
You seem to be confusing the legal institution of a trust with that of a mandate. These two legal concepts are not identical. In a trust, the property of the trust has to be preserved intact by the trustee as provided for in article 5 of the Mandate for Palestine. In contrast to a trust, a mandate is equivalent to a job undertaken by a Mandatory which, in the case of Mandated Palestine, was for the benefit of the Jewish People. The job that Britain was charged with as Mandatory was setting up the proper conditions â€‖ political, administrative and economic, to establish the Jewish National Home, the euphemistic term for a Jewish State as enunciated in article 2 of the Mandate for Palestine. Britain failed miserably to accomplish the job it willingly undertook on April 25, 1920 first on behalf of the Principal Allied Powers and then on behalf of the League of Nations.
Neither the Mandatory, nor the League of Nations, nor even the beneficiary, i.e. the Jewish People represented by the Zionist Organisation and the Jewish Agency for Palestine, ever had the right to dispose of the trust property which was vouchsafed for future generations of Jews, i.e. the Land of Israel. Nor does the State of Israel have this right today. If Israel does cede sovereign territory voluntarily, it is acting illegally in contravention of section 97 of Israel's Penal Code. Of course, the shameless masochistic "peaceniks" and traitors in Israel (more of these people exist in Israel than in any other country) will say that Judea and Samaria are not under Israel's sovereignty. My strong legal opinion is that all areas of the Land of Israel belong to the Jewish People forever and cannot be given away by any Jewish body as Ben-Gurion said in 1937 at the Zionist Congress held in that year. This prohibition of ceding any part of the Land of Israel to non-Jews is also sanctioned by Jewish law according to most rabbinical jurists, with the notable exception of Rabbi Ovadia Yosef, the spiritual leader of the Shas Party. In this regard, the State of Israel acts as the agent and assignee of the Jewish People. The question of sovereignty is the core point of my forthcoming book. ix. The Maccabees apparently conquered and ruled Gaza and the Negev. See Hasmonean Rule Reached South to Negev Highlands, IsraelNN, Dec. 10, 2009, http://www.israelnationalnews.com/News/news.aspx/134913. Therefore, it was arguably supposed to be included in the ―historical formula‖ for the boundaries of Palestine. x. The Executive Agreement on Gaza might have violated U.S. law, for instance, the provision in the Fish-Lodge Resolution that ―the holy places and religious buildings and sites in Palestine shall be adequately protected.‖ Upon exiting Gaza, the Jewish synagogues were torched. The Execute Agreement on Gaza may never be brought to U.S. Court. But it seems to me that if a US Court ever did void an executive agreement, it would be evidence the President was not acting under the authority of the US, and consequently did not ever have competency to enter into the agreement, so it never became international law. In that case, could the President himself be sued as an individual in civil court for breach of contract? Herbert B. Sunshine, The Contractual Effect of Oslo, Maccabean Online, Sept. 1996 ("All signatories to an agreement must be legally competent. The term ‗competent‘ presumes that there are, by law, minds capable of meeting and forming binding contracts. International Law deals with signatories who are nations, agencies of nations or duly authorized international entities."). xi. In the understandings of the Executive Agreement on Gaza it stated: ―The Israeli government remains committed to the Roadmap as the only route to achieving the two-state solution.‖ PM Sharon and his Cabinet accepted the Road Map with 14 redlines, so was there really agreement to the Road Map? See Howard Grief, The Legal Foundation and Borders of Israel under International Law 519-21 (2008).
2. I know of at least two lawyers post-1948 who might have come to same position as you that Israel had de jure sovereignty in the Mandate boundaries before Att. Howard Grief: i. The opinion was set forth in a memorandum to the Israel government dated August 19, 1970 which states, as quoted secondhand in Israel's Settlement Policy in the Territories, Israel Digest, Aug. 12, 1977:
The Zionist Movement's agreement in 1947 to relinquish its claim to a portion of the Land of Israel within the framework of the General Assembly's recommendation (No. 181) of November 29, 1947, was dependent on a parallel agreement by the Arabs to accept the same recommendation. Arab opposition to the General Assembly's recommendation and the Arab States' invasion of Israel in May 1948 frustrated the UN Partition Plan. Accordingly, therefore, the Jewish people's title to the whole of the Land of Israel reserves the right of sovereignty over Eretz Yisrael, as that territory was comprehended under the Mandate.
The word ―title‖ is admittedly vague. The Zionist Organization‘s proposals of February 3, 1919 presented to the Paris Peace Conference as well as the first draft of the Mandate for Palestine of March 31, 1919, prepared on behalf of the Zionist Organization, used the term ―historic title,‖ which disappeared from subsequent drafts. See Nathan Feinberg, New Terms Created in Public International Law by the Jewish Question, In the Dispersion, Surveys and Monographs on the Jewish World, (1968), reprinted in Studies in International Law 276-77 (1979). ii. Attorney MK Shmuel Tamir (Katznelson) stated in Statements by Prominent Persons Regarding the Return of Liberated Territory to the Enemy, Sitting 186 of the Sixth Knesset (June 21, 1967), in 4 Major Knesset Debates, 1948-1981, at 1605, 1605-06 (Netanel Lorch ed., Dorothea Vanson-Shefer trans., 1993):
We must liberate ourselves of the confusion which seems to have gripped some of us with regard to the large increase of Arab population in Israel's sovereign territory. Original Zionism...always foresaw a large Arab population in Israel's sovereign territory as an integral part of the Jewish state....Anyone who denies this, who hesitates to incorporate a large Arab population under Israeli sovereignty and is prepared to relinquish any part of our external or internal sovereignty over the Land of Israel may unwittingly be creating the framework which will gradually become the Arab state which is the most extreme in its hostility towards us.
I infer the term ―internal sovereignty‖ means the de facto civilian borders of the state. I seem to recall reading that Attorney MK Shmuel Tamir (Katznelson) was reported to be a brilliant lawyer and was a political mentor to future PM Olmert.
J. You state: ―My youngest son bought me a copy of his book for my 80th birthday.‖:
1. Had you been consciously aware of Att. Howard Grief‘s research prior to receiving his book?
4. You ask: "Was the San Remo Resolution an independent agreement?" Yes, but an independent agreement by only four parties. It seems to me that it more clearly became International Law after it was approved by many parties that constituted the League of Nations. Subsequently it was approved by the United States that had held out for the first paragraph of the UN Article 22 to be used as the deciding principle.
[SUPPLEMENT: This will supplement my preliminary reply on the applicability of Paragraph 1 of Article 22 of the League of Nations Charter in determining the meaning of the mandate or trust arrangement. Recognizing that opponents of House Resolution 360 suggested that the Mandate was inconsistent with that provision, the prevailing side favored it nonetheless, making the remarks shown below that are in the following report:
In 1922, the US Congress was debating whether the US, who was not a member of the League of Nations, should approve its Palestine Mandate. Congressman Chandler of New York, in his remarks favoring its approval in Part I of House Report No. 1172 on National Home for the Jewish People, House Resolution 360, stated:
"Permit me at this point, Mr. Speaker, to consider the second of the main objections to political Zionism and to the passage of this resolution. It has been urged by the opponents of this measure that the principle of the right of self-determination would be violated by the establishment of a Jewish state in Palestine with the Jews in dominant control. It is pointed out by these opponents that the entire population of Palestine is about 700,000 and that of this number about 500,000 are Mahometan Arabs, about 110,000 are Christians of various sects and denominations, and that about 90,000 are Jews. It is urged that, upon the principle of the right of self determination, these 500,000 Arabs should not be compelled to submit to the domination of a Jewish minority in the country.
Mr. Speaker, I believe firmly in the doctrine of self-government or self-determination as representing a sacred principle in government. Lincoln’s “government of the people, by the people, and for the people’ is not possible without strict observance and application of the rights of self-determination. But I must insist that it does not become the American Congress or the American Government to prate too loudly at this time about the sacred rights of the Arabs in Palestine, in the light of our treatment of the Filipinos during the last quarter of a century, and in view of the fact that every civilized nation of the earth, excepting the United States, has acknowledged the independence de jure of Esthonia and Latvia upon principles of self-determination.
Our American theories of government are always glittering successes, but our practices are ofttimes dismal failures. We boast of personal liberty in America and they tolerate the Volstead Act upon the statute books. I say to you that there will be no genuine personal liberty in America again until that act is repealed or radically modified. But I shall not stop to discuss or denounce prohibition, since the subject of debate is the Zionist movement.
I want to make at this time, Mr. Speaker and gentlemen of the House, my attitude and views upon the Arab question in Palestine very clear and emphatic. I am in favor of carrying out one of the three following policies, to be preferred in the order in which they are named:
(1) That the Arabs shall be permitted to remain in Palestine under Jewish government and domination, and with their civil and religious rights guaranteed to them through the British mandate and under terms of the Balfour declaration. (2) That if they will not consent to Jewish government and domination, they shall be required to well their lands at a just valuation and retire into the Arab territory which has been assigned to them by the League of Nations in the general reconstruction of the countries of the east. (3). lf they will not consent to Jewish government and domination, under conditions of right and justice, or to sell their lands at a just valuation and to retire into their own countries, they shall be driven from Palestine by force."
In succeeding remarks, Congressman Chandler discusses the anticipated effect of these courses of action.
This supports my view that it was recognized that the Palestine Mandate was inconsistent with paragraph 1, Article 2 of the League of Nations Charter, but the US Congress favored it nonetheless.]
A. You state: ―Subsequently it was approved by the United States that had held out for the first paragraph of the UN Article 22 to be used as the deciding principle.‖:
1. This sentence is vague, but due to the supplemental e-mail you sent I assume you meant the San Remo Resolution was approved in the Fish-Lodge Resolution. I read a short but good exposition on the drafting history of the document: Herbert Parzen, The Lodge-Fish Resolution, 60 Am. Jewish Hist. Q. 71 (1970). The direct impetus was the Resolution of the Legislature of Massachusetts of March 29, 1922 with regard to Recognizing Palestine as the Homeland of the Jewish People. See id. at 74. That state resolution stated in a beginning recital: ―Whereas the Supreme Council of the Allied Peace Conference meeting at San Remo recognized the right of the Jewish nation to a national existence in Palestine and conferred upon Great Britain a mandate over Palestine.‖ Id. at 81. The next day U.S. Senator Henry Cabot Lodge, who was senator from the same state of Massachusetts and one of the dominant political personalities of that time, see id. at 73, had the state resolution printed in the Congressional Record and referred it to the Committee on Foreign Relations, id. at 74-75, which I believe is the Senate counterpart to the Committee on Foreign Affairs in the House. At some point later on, on April 18, Congressman Hamilton Fish presented the Massachusetts state resolution to the House, in order, according to Parzen, to create a receptive climate to pass his own resolution HJR 307. See id. at 78.
2. Perhaps bearing on the sophistication of the Congress that passed the Fish-Lodge Resolution, Reuben Fink, in talking about the circular letter of June 11, 1918 he sent to the 65th Congress to appraise the support for Zionism, stated the following in America And Palestine, The Attitude of Official America and of the American People Toward the Rebuilding of Palestine as a Free and Democratic Jewish Commonwealth 3 (Reuben Fink ed., 2d rev. ed. 1945) (1944):
[It] was sent to every Senator and Representative requesting their answers to five specific questions covering the matter of Zionism and the Balfour Declaration. Since the subject was then not nearly so familiar to the non-Jewish Americans as it is today [he is writing circa 1944 (ed. E.M.)] it was necessary for me to confer with most of the Congressmen. The Jewish National Movement often had to be quite thoroughly explained to them. I was called upon to answer more questions than were asked in the circular latter.
The result was a book called The American War Congress and Zionism, published by the Zionist Organization of America in February, 1919. It contains statements from 300 Members of the 65th or War Congress, 69 Senators and 231 Representative. . . . The book may have been of assistance in causing the adoption of the Palestine Lodge-Fish Resolution of 1922 [note: That book was of course written before the creation of the League of Nations, so there was no mention of ―Article 22‖ to inform Congress. (ed. E.M.)]. . . .
Mr. Brand, the fallacy you had made so far in some of the quotes you have sent me, including the one by Representative Walter M. Chandler from New York, is that you are operating under the unproven assumption that the "well-being and development" language in paragraph 1 of Article 22 meant "self-determination." You should look at Establishment of a National Home in Palestine: Hearings before the Committee on foreign affairs, House of representatives, Sixty- seventh Congress, second session, on H. Con. Res. 52, expressing satisfaction at the re-creation of Palestine as the national home of the Jewish race. April 18, 19, 20, and 21, 1922, available at http://books.google.com/books?id=MKwMAAAAYAAJ&printsec=frontcover. I have not read the full hearings, but in a search I can find one witness who dwelled at length upon the alleged inconsistency between the phrase ―which are inhabited by peoples‖ in paragraph 1 of Article 22 and the Mandate, the Statement of Prof. Edward Bliss Reed, of New Haven, Conn.—Resumed, id. at 68 et seq., You can read his testimony for yourself to see to what extent, if any, the members of the committee bought into his argument.
The Parzen article cited just above mentions: ―The most effective opponent [in the hearings, supra] to the resolution was Professor Reed of Yale, who had served as a deputy commissioner of the American Red Cross in Palestine.‖ Id. at 77. He was the one who brought the two Arabs witnesses to testify at the Hearings, and the New Palestine called him an Arab agent. Id. at 77. According to Parzen: ―He [Prof. Reed] was particularly outraged at the Lodge resolution which called for the national home whereas the Balfour Declaration contemplated only a national home.‖ Id. (emphasis in original). Parzen goes on to state that a reference to the ―Balfour Declaration‖ was removed in order to ―mollif[y] members of Congress with isolationist views.‖ Id. at 79. Parzen then states, id.:
The House Committee was still dissatisfied. There was constant anti-Zionist pressure on members of the Committee, the major point at issue being the article "the" preceding the phrase "national home." At an executive meeting of the House Committee on May 23, the indefinite "a" was substituted, and the Committee voted 10 to 2 to report the resolution favorably to the House."
In my opinion this is not determinative that the Fish-Lodge Resolution meant the Jewish National Home would only be in part of Palestine, because the Balfour Declarative itself used the indefinite article.
President Warren G. Harding on May 11, 1922, after HJR 322, which became the basis for the Fish-Lodge Resolution, had been introduced in the House on May 3, 1922, but before the definite article in front of ―national home‖ was changed on May 23rd stated: ―I am very glad to express my approval and hearty sympathy for the effort of the Palestine Foundation Fund, in behalf of the restoration of Palestine as a homeland for the Jewish people.‖
3. I have not sufficiently researched why the previous Congresses had not acted upon a resolution supporting the Jewish National Home. To my recollection it was because the Secretary of State stymied it. Also, to my recollection President Wilson did not want to publicize his support for the Balfour Declaration after he pre-approved it on October 13, 1917. The reason he did not want to publicize his support is because he did not want to jeopardize relations with Turkey, with whom the U.S. had not declared war, and remained on good relations. See Richard Ned Lebow, Woodrow Wilson and the Balfour Declaration, 40 J. Modern Hist. 501, 522-23 (1968).
5. You ask about the consistency of the grant of political rights to Israel instead of the majority of its inhabitants with paragraph 1, Article 22 of the League of Nations Charter.
No it is not and was not intended to be. Paragraph 1 of Article 22 principles were used in allocating 99% of the League of Nations Mandate, but was not used for 1% because of the historical connection of the Jews with Palestine. This was the stated reason, but it must be remembered that the Jews fought alongside the Allies in the Jewish Brigade (the Jews who fought in them were known as "Palestinians") and the Arabs in Palestine fought on the side of their Turkish rulers in Constantinople, even though they had been offered political rights if they helped the Allied Forces. The Arabs in the Arabian Peninsula did offer some help to the Allies with T.E. Lawrence. Lowell Thomas, with an eye to selling newspapers made much more of this limited help than it deserved but those Arabs were granted political rights to the Arabian Peninsula.
[SUPPLEMENT 1: I will be out of town for three weeks, so I will not be able to respond immediately to your comment on my preliminary note on your questions. I regret that it has not arrived today as you had suggested. However I have looked further into the question of the inconsistency of the Palestine Mandate under my interpretation, with Wilson's 14 points, particularly point 12, and paragraph 1 of Article 22 of the League of Nations charter.
There is no doubt that they are inconsistent. And initially, Wilson was against that portion of the Mandate, but ultimately he acquiesced. In fact it was delayed during his tenure in office and wasn't accepted until Warren Harding came into office.
Looking at the legislative history, it seems clear that the US Congress knew of the inconsistency but approved of the British allocating exclusive political rights over Palestine to the Jews. In the 1948 UNSCOP hearings, the Arabs made much of this. As I mentioned before, under the doctrine of "expressio unius est exclusio alterius", the specific mention of the civil and religious rights of the non-Jews excludes their political rights. From the internet, I gather that in his book "The Iron Cage", which I have ordered, it appears that Professor Rashid Khalidi, former spokesman for the PLO and a friend of President Obama, recognized and makes much of the Allies ignoring the political rights of the Arabs. "According to historian Rashid Khalidi, the mandate ignored the political rights of the Arabs.[72] The Arab leadership repeatedly pressed the British to grant them national and political rights, such as representative government, over Jewish national and political rights in the remaining 23% of the Mandate of Palestine which the British had set aside for a Jewish homeland. The Arabs reminded the British of President Wilson's Fourteen Points and British promises during the First World War.
[As to the promises, see below]
The British however made acceptance of the terms of the mandate a precondition for any change in the constitutional position of the Arabs. A legislative council was proposed in The Palestine Order in Council, of 1922 which implemented the terms of the mandate. It stated that: "No Ordinance shall be passed which shall be in any way repugnant to or inconsistent with the provisions of the Mandate." For the Arabs, this was unacceptable, as they felt that this would be "self murder".[73] During the whole interwar period, the British, appealing to the terms of the mandate, which they had designed themselves, rejected the principle of majority rule or any other measure that would give an Arab majority control over the government of Palestine.[74]
The terms of the mandate required the establishment of self-governing institutions in both Palestine and Transjordan. In 1947 Foreign Secretary Bevin admitted that during the previous twenty-five years the British had done, their best to further the legitimate aspirations of the Jewish communities without prejudicing the interests of the Arabs, but had failed to "secure the development of self-governing institutions" in accordance with the terms of the Mandate.[75]
Arabs local to Palestine fought against the Allies and for the Ottomans. Some Arabs in the Arabian Peninsula, with Lawrence [and Feisal], fought for the British."
But if one applies that doctrine, expressio unius est exclusio alterius, the Allies didn't ignore them, as Khalidi suggests. They intentionally excluded them from the rights of the non-Jews. Civil rights includes the individual right to vote in a democratic government. Political rights are collective rights to political self determination. The latter were allocated to the majorities of 99% of the territory captured from the Ottoman Empire, but in 1%, Palestine, were allocated exclusively to the Jews.
The Arabs local to Palestine, during the 400 years of rule by the Turks from Constantinople didn't care about asserting political rights, nor during the 20 years of rule by the Jordanians from Amman. They did kick up some fuss about the rule of the British from London during the Mandate period but the notion of being ruled by the Jews, who under Islam were dhimmis, must seem intolerable.
This is what Bernard Lewis says: According to Bernard Lewis, in the mind of Muslims, "rule by true believers of misbelievers is proper and natural, since this provides for the maintenance of the holy law, and gives the misbelievers both the opportunity and the incentive to embrace the true faith. But for misbelievers to rule over true believers is blasphemous and unnatural, since it leads to the corruption of religion and morality in society, and to the flouting or even the abrogation of God's law. http://www.theatlantic.com/magazine/archive/1990/09/the-roots-of-muslim- rage/4643/3/
While the Soviet Union, in 1964, reframed this religiously based animus as secular nationalism motivated by a quest for political self determination by first inventing "the Palestinian People" and then their motive of "liberation", the real cause for the Arab Israeli conflict is not sovereignty by other than the local Arabs because there was no objection to sovereignty by Turkish Muslims nor Jordanian Muslims. The real objection is still the animus motivated by being ruled by Jews if Jews have the sovereignty. There was also Arab unrest when sovereignty was held by the British under the Mandate. http://www.think-israel.org/brand.russiatheenemy.html
Here is some of the legislative history on reasons for acceptance of the British view: "One of the arguments brought forward against declaring Palestine a Jewish homeland is that the population consists mainly of Arabs. If the grounds of opposition to such declaration were to be upheld on that score, then how can there be any justification for what has been done in the United States, Australia, India, Philippine Islands, and parts of Africa. The Arabs of Asia and Africa number in all 38,000,000. They now possess a land at least twenty times as large as the whole of Great Britain. It is estimated to be 2,375,000 square miles. For each 40 acres there is just one Arab. One on-hundred-and seventieth part of this large acreage is to e found in Palestine. If Palestine is to become a national homeland of the Jews, it still will leave the Arab race in practical ownership and control of one of the richest holdings amongst all the countries of the earth, with practically 40 acres for each Arab. The Arabs, therefore, will have more land than they ever can require of ever think of developing. I believe that this destroys all arguments which have been or can possible be advanced against the creation of a national homeland for the Jews in Palestine. Some of the Members have made inquiry as to whether there has been previous action along similar lines taken by Congress. It is interesting to know that when Greece was making its great struggle for separation and liberty from Turkey, on January 24, 1824, favorable action was taken by Congress."
This supports my view that Congress was well aware of the inconsistency between the British allocation of political rights under the British Mandate for Palestine and Wilson's point 12 in his 14 points and paragraph one of Article 22 of the League of Nations Charter.]
[SUPPLEMENT 2: When I can, I will read the materials you have sent to me very carefully. I found an interesting quotation that further supports my view that until the Soviet Russia dissimulators thought of it in 1964, there never was a Palestinian People. I wrote about this in the three articles I have written on the subject of Israel, but if I had known of this quotation, I would have added it:
Count Folke Bernadotte, the first UN mediator to the Arab-Israeli conflict, noted in his journal that the "Palestinian" Arabs had little desire for independence. "The Palestinian Arabs had at present no will of their own. Neither have they ever developed any specifically Palestinian nationalism. The demand for a separate Arab state in Palestine is consequently relatively weak. It would seem as though in existing circumstances most of the Palestinian Arabs would be quite content to be incorporated in Transjordan."]
A. You state: ―No it [the grant of political rights to Israel] is not [consistent with paragraph 1 of the Article 22 of the Covenant] and was not intended to be.‖:
1. Since Jewish rights have not been fully understood, except possibly by the smallest of minorities, it is understandable that you would think that. Meinhertzhagen himself, an ardent supporter of the Jewish national home, on a different issue, seemed to imply that the Jewish National Home could be inconsistent with the civil and religious rights of the non-Jewish population, when in an entry dated February 7, 1918 he asked Balfour: ―At the back of your mind do you regard this declaration as a charter for ultimate Jewish sovereignty in Palestine or are you trying to graft a Jewish population on to an Arab Palestine?‖ and Meinhertzhagen then comments at the end of the entry: ―But I am not happy about the dubious wording of the document. Anti-semites, and God knows the world is full of them, will use the document against the Jews. I want to meet Weizmann.‖ Richard Meinertzhagen, Middle East Diary, 1917 -1956, at 9 (London: Cresset Press, 1959).
2. The San Remo Resolution and preamble of the Mandate stated ―by application of the provisions of Article 22‖ not ―general spirit.‖ It was the 1939 White Paper, held to be in violation of the Mandate by the Permanent Mandates Commission, that used the term ―the whole spirit of Article 22 of the Covenant of the League of Nations,‖ which Dr. Bernard Joseph posits probably meant to refer to paragraph 4 of Article 22 of the League Covenant. See Bernard Joseph, British Rule in Palestine 153 (1948). Paragraph 1 of the Article 22 of the League Covenant was the heart and soul of the Mandate system, so it seems extremely doubtful they would have excluded it.
In fact, presumably the definite article modifying the words ―provisions of Article 22,‖ meant it had to be in conformity with every paragraph in Article 22, including paragraph 4. Compare with the argument that the missing article in the English version of Resolution 242 did not mean withdrawal from all the territories. This also appears to be the construction Great Britain placed upon it when Balfour transmitted to the League Council the official letter of December 6, 1920 introducing the Mandates of Palestine and Mesopotamia: ―His Majesty‘s Government venture to hope that an examination of these documents will satisfy the Council that they are in compliance with Article 22 of the Pact, and that the Council will be prepared to approve them.‖
From preliminary documentary evidence (the Weizmann quote supra and the Smuts block quote infra), it seems that paragraph 4 was not to apply to Palestine. The San Remo Resolution would still be consistent with paragraph 4 though, in the sense that paragraph 4 was only to apply to ―certain communities‖ in the Turkish Empire. See Benjamin Akzin, The Palestine Mandate in Practice, 25 Iowa L. Rev. 32, 50 (1939-1940) (―The [Palestine Royal Commission] Report goes on to point out that while the Syrian and Iraq Mandates provide for government on the basis of the wishes of the inhabitants, the Palestine Mandate begins by giving full powers of legislation and administration to the Mandatory, and thereupon proceeds to couple the two processes of Jewish settlement and of development of self-government. It may be asked therefore whether the description of the Palestine Mandate as an ‗A‘ Mandate is proper. The expression ‗certain communities‘ certainly permits of a limited application within the wider scope of former Turkish possessions; this construction of ‗certain‘ is further reinforced by a similar incomplete enumeration in paragraphs 5 and 6 (‗Other peoples, especially those‘, and ‗There are territories, such as‘); and the wording of the Palestine Mandate certainly lends itself to this interpretation. . . .‖); see also Nathan Feinberg, Some Problems of the Palestine Mandate 89-94 (1936) (giving similar analysis on how paragraph 4 of Article 22 did not apply to Palestine, was consistent with Article 22 in general, and how Palestine being an ‗A‘ Mandate does not have to implicate paragraph 4, and that the Palestine Arab Congress conceded the Palestine Mandate did not conform to paragraph 4).
But see Dr. Bernard Joseph in id. 60:
The wording of the memorandum may give rise to misconception. It must not be inferred that the Mandatory's responsibility for putting into effect the Balfour Declaration in any way arises from or is dependent upon Article 22 of the Covenant, or the first recital of the Preamble of the Mandate referring to Article 22. The reference in the Preamble to Article 22 of the Covenant was clearly made in order to justify the appointment of a Mandatory. Article 22 merely indicated a new system of dealing with territory which Turkey had surrendered. The British Government apparently understood Article 22 in this way. In paragraph 2 of a Memorandum on the Political History of Palestine under British Administration, submitted to the United Nations Special Committee, it stated: "It was decided at the Paris Peace Conference in 1919 that the Mandate system, outlined in Article 22 of the Covenant of the League of Nations, should be applied to the non-Turkish portions of the Ottoman Empire."
This construction may also be gleaned from the reference to Article 22 in the Preamble to the American- British Palestine Mandate Convention of December 3, 1924: "Whereas Article 22 of the Covenant of League of Nations in the Treaty of Versailles provides that in the case of certain territories which, as to a consequence of the late war, ceased to be under the sovereignty of the States which formerly governed them, mandates should be issued, and that the terms of the Mandate should be explicitly defined in each case by the Council of the League. . ."
At the same time Dr. Bernard Joseph stated in Bernard Joseph, British Rule in Palestine 54-55 (1948):
As to the contention that there is a conflict between the Palestine Mandate and the provisions of Article 22 of the Covenant, it is submitted that there is no such inconsistency even on a strictly legal construction of both documents. There is no reason for assuming that the establishment of the Jewish National Home is incompatible with the well-being and development of the people of Palestine as a whole despite the provision (Article 22, paragraph 1) "that the well-being and development of the peoples concerned form a sacred trust of civilization."
To quote further from Lord Finlay's opinion:
"[It was] impossible upon any principle of construction to say that there is any inconsistency between this scheme (for the immigration and settlement of Jews in Palestine according to the terms of the Palestine Mandate) and Article 22 merely because a scheme which may benefit Palestine may also benefit one particular people, namely the Jews . . . The real point and the only point appears to me to be whether it can be said that the scheme contained in Article 2 (of the Palestine Mandate—viz. the National Home Policy) is inconsistent with Article 22 of the Covenant, I am clearly of opinion that there is no such inconsistency. Article 22 of the Covenant does show that the general object is to secure the well-being and development of the mandated territories. Article 2 of the Mandate, of course, deals with a special scheme of immigration and settlement, viz. that of the Jewish People. But I see absolutely no inconsistency between the two. It may well be that a judicious scheme of immigration is the best possible method of developing the resources of Palestine and securing the well-being of that country."
The alleged inconsistency between the Mandate and Article 22 of the Covenant was considered and rejected by the Permanent Mandates Commission of the League at the thirty-sixth Session of the Permanent Mandates Commission in June, 1939. The Chairman of the Commision, Mr. Otts, said that he could not find any inconsistency between "the spirit of the Covenant and the terms of the Mandate." Indeed, he "saw no contradiction between these two texts which for 17 years had constituted the law that the Commission had applied to the case of Palestine." (p. 206).
. . . .
It is a well-established principle of interpretation that where two meanings are possible that meaning should be taken which will give effect to the intention of the parties rather than the meaning which will render the instrument void. Clearly, therefore, one must reject the suggestion put forward by the Arabs that the Mandate is invalid because it invokes provisions of Article 22 of the Covenant which, they say, make it impossible to give effect to the provisions of the Mandate as to the Balfour Declaration. Indeed, if there were any inconsistency between the Mandate and the Covenant, since both became applicable to Palestine at the same time, then by the well-established rule of law, the special law (i.e., the Mandate) takes precedence over and displaces the general law (i.e., the Covenant).
3. I have not studied the drafting history of Article 22 of the League (that would be appropriate when doing the proposed law journal article), but I bet the documentary record will prove you wrong that there is an inconsistency between paragraph 1 of Article 22 of the League and the San Remo Resolution. Here are the basic facts as I know them, though at this preliminary stage in the research a causal link is unconfirmed. Early drafts of Article 22 used the term ―self- determination.‖ Legal adviser to the American commission to the Paris Peace Conference, David Hunter Miller, commented on Wilson‘s Second Draft or First Paris Draft, January 10, 1919 that the term ―self-determination‖ used in the draft should be struck out due in part to the intention of creating a Jewish state. David Hunter Miller‘s full comment in 2 David Hunter Miller, Drafting of the Covenant 87-88 (1928) was:
The change suggested in the second paragraph is striking out the words, "self-determination or," so that the language would read: "the rule of the consent of the governed to their form of government, etc." This rule as last stated is an American principle, whereas the rule of self-determination is one of very limited application and of practically no application at all in such territories as Turkey and the German Colonies. It is to be pointed out that the rule of self-determination would prevent the establishment of a Jewish State in Palestine, and would prevent the establishment of any autonomous Armenia, which is a country in which the Armenians are in a decided minority.
In the final version of Article 22 the term ―well-being and development‖ is used. Balfour in the quotes in Att. Howard Grief‘s book and Smuts in the extended quote from the e-mail package Bernice forwarded to you Mr. Brand that I shall now give, as I interpret it, see also Bernard Joseph, British Rule in Palestine 58 (1948), disavowed that the principle of self-determination was to be used in Palestine in Jan Christiaan Smuts, The League of Nations—A Practical Suggestion (1918) (emphasis added).:
"I would begin", said the author of this Memorandum, "by making the following recommendations:-
"That as far as the peoples and territories formerly belonging to Russia, Austria - Hungary and Turkey are concerned, the League of Nations should be considered as Reversionary in the most general sense and as clothed with the right of ultimate disposal in accordance with certain fundamental principles. These principles are first that there shall be no annexation of these territories to any of the victorious states, that in the future government of these territories and peoples the rule of self-determination or the consent of the governed to their government shall be fairly and reasonably applied". This was a clear and admirable statement of universal principles. But the principles enunciated in it would have clearly kept the Zionists out of Palestine, and General Smuts wanted the Zionists in Palestine, so he had to invent a reason for the exclusion of Palestine from the operation of these universal principles.
This is how he did it:- "There will be found cases where, owing chiefly to the heterogeneous character of the population and their incapacity for administrative co-operation, autonomy in a real sense would be out of the question, and the administration would have to be undertaken to a very large extent by some external authority. This would be the case, at any rate for some time to come, in Palestine, where the administrative co-operation of the Jewish minority and of the Arab majority would not be forthcoming", and again "there will however be cases such as Palestine . . . , where for reasons above referred to, an autonomous regime cannot be adopted at the start, and where the consultation of the country on the question of its Mandatory state is therefore not formally possible. Even in such cases the League will, as far as possible, follow the trend of popular opinion".
And lastly, Dr. Isaiah Friedman recounts in his book: ―On 5 December 1918, at a meeting of the Eastern Committee of the War Cabinet, it was agreed that the principle of self-determination could not be applied to Palestine due to the historical and religious claims of the Jews.‖ Isaiah Friedman, British Pan-Arab Policy, 1915-1922, at 201 (2010).
There was no conflict with paragraph 1 of Article 22 here, because the term used in paragraph 1 is the ―well-being and development‖ not ―self-determination.‖ Dr. Isaiah Friedman comments on the reason for the change in Isaiah Friedman, British Pan-Arab Policy, 1915-1922, at 188 (2010):
It should be noted that the term "self-determination" does not appear in the text of Article 22; it would not be too far-fetched to surmise that Smuts had deliberately deleted it, considering it to be too premature. Instead, he attempted to harmonize the interests of the Powers concerned with the principle of self- determination, albeit in a restrictive sense. The mandate, however, was to be provisional. Its ultimate purpose was to nurse the people concerned into independence. There was a mixture of idealism with Realpolitik to ensure cooperation and stability in the aftermath of the War.
Thus, President Woodrow Wilson might have had a partial change of heart from the 12th point in the 14 Points of January 8, 1918, which I assume came out prior to the Smuts book on the Mandate system, in which President Wilson had stated: ―[T]he other nationalities which are now under Turkish rule should be assured an undoubted security of life and an absolutely unmolested opportunity of autonomous development . . . .‖ Upon logical analysis, the 12th point might not contradict the Balfour Declaration. You believe he included the Arabs in Palestine in the 12th Point. But by similar logic, the Jews had a sizeable population in Mesopotamia and made up 1/3rd the population of Bagdad prior to WWI, see http://www.jewishvirtuallibrary.org/jsource/anti-semitism/iraqijews.html, so they should have been given an opportunity at ―autonomous development‖ in a sector in Bagdad. Rather President Wilson‘s14 Points delivered to a joint session of Congress was a political speech. Present Wilson presumably meant it for the nationalities he meant it for in the territories he meant it for. On May 16, 1917, President Wilson had a 45-minute conservation with Justice Brandeis and the former reported that President Wilson was entirely sympathetic to Zionists aims and ―[f]rom the point of view of national problems generally, he [Wilson] approved and would support recognition of the [Jewish] nationality.‖ See Richard Ned Lebow, Woodrow Wilson and the Balfour Declaration, 40 J. Modern Hist. 501, 522-23 (1968). President Wilson pre-approved the Balfour Declaration on October 13, 1917, less than three months prior to the 14 Points. Later in February 1920, President Wilson, about 3 months before the San Remo Resolution, while on his sick bed after having suffered a major stroke four months previous, in response to a letter from Justice Brandeis that the French were stubbornly insisting on the Sykes-Picot Agreement, importuned upon his reluctant[ = opposed to the Jewish National Home] Secretary of State Lansing to instruct the American Ambassador to France Hugh Campbell Wallace to impress upon the French and English authorities that he agreed with expanded northern borders in Palestine, and in his own words stated: ―[I] agree with Mr. Justice Brandeis regarding it [the Balfour Declaration] as a solemn promise which we can in no circumstances afford to break or alter.‖ 2 American Zionism 366 (Aaron S. Klieman ed. 1990); see id. at 367-71.
But see Julius Stone, Israel and Palestine: Assault on the Law of Nations 18 (1981) (―The International Court of Justice in the Namibia Advisory Opinion made clear that the self- determination principle, as this was to be understood in 1971, is continuous from its early expression in Woodrow Wilson‘s Fourteen Points, the mandates system, and Article 22 of the League Covenant, into its embodiment in the United Nations Charter, preamble and Chapters 11 and 12 on the regime of non-self-government territories and the trusteeship system. This course of history, said the court, left ‗little doubt that the ultimate objective of the sacred trust was the self-determination and independence of the peoples concerned‘ (p. 31).‖).
Benjamin Akzin, Professor of Law, Portia Law School gives his opinion on the application of the term ―well-being and development‖ to Palestine in Benjamin Akzin, The Palestine Mandate in Practice, 25 Iowa L. Rev. 32, 49 (1939-1940):
From a substantive viewpoint it can only be said that the Palestine Mandate appears to regard the simultaneous execution of the three fundamental tasks, the establishment of the Jewish National Home, the development of self-governing institutions, and the safeguarding of the civil and religious rights of all the inhabitants of Palestine," as the proper way to apply to Palestine the principle of "well-being and development" provided for in the first paragraph of Article 22 of the Covenant. . . .
4. Now let us turn to the other alleged inconsistency in paragraph 1 of Article 22 of the League Covenant. Paragraph 1 states: "To those colonies and territories . . . which are inhabited by peoples . . ., 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." The question is how to best reconcile the wording with the expected large-scale Jewish immigration, and more importantly who is the beneficiary of political rights in Palestine? Here are four hypotheses – I reject the first three hypotheses which follow in favor of the fourth hypothesis as a result of the 14 Points you brought to my attention – on how to resolve this issue, as it relates to the Jews. I address how I feel the non-Jewish inhabitants in Palestine were also included in paragraph 1 of Article 22 of the League Covenant in a later point 6[A2.] below: i. [This was written prior to me considering the Fourteen Points:] The first interpretation is that the existing Jewish population in Palestine is the beneficiary of political rights as ―the sacred trust of civilisation‖ whose ―well-being and development‖ was to be secured. In order to do so, the Diaspora Jewry was to be brought in in order to create a Jewish majority. I remember reading that before WWI, Jews in what would become mandated Palestine made up the highest percentage of Jews there than in any country in the world (but in the Turkish Empire alone did the Jews have a greater numerical population at the same time in Mesopotamia?). The law library in my area was undergoing renovations so I have not yet found the citation regarding Jews being the highest percentage minority of anywhere in the world in pre-WWI Palestine, but I believe the source either was Jewish Agency for Palestine, Memorandum Submitted to the Palestine Royal Commission on Behalf of the Jewish Agency for Palestine, (archival on microform microfiche ILM 2744) (1936), or Jewish Agency for Palestine, The Historical Connection of the Jewish people with Palestine: Memorandum Submitted to the Palestine Royal Commission on Behalf of the Jewish Agency for Palestine (archival on microfiche ILM 2743) (1936). Jews had been a majority in Jerusalem since the mid-19th century. See Eliyahu m'Tsiyon, A Jewish Majority in Jerusalem In 1853, Wrote Contemporary French Diplomat, Think-Israel.org, Jan.-Feb. 2006. But see War Cabinet 261, 31 October I9I7, Cab/23/4, in C.J. Lowe & M.L. Dockrill, The Mirage of Power 551 (1972) (recording that Curzon in the War Cabinet that approved the Balfour Declaration ―did not see how the Jewish people could have a political capital in Palestine,‖ if retaining the Christian and Moslem Holy Places were to be done ―effectively.‖). Curiously, during the Mandate period, despite Article 3 of the Mandate, Jews were not allowed to elect a majority of the municipal councilors and a Jew was never appointed mayor of Jerusalem. See Bernard Joseph, British Rule in Palestine 233 (1948).
Jews from other countries were not intruders but rather regarded as the same ―people‖ as Jews in Palestine, for purposes of the text of paragraph 1, which accords with the principle of nationality. A recent scientific journal article confirms to a large degree their genetic interrelatedness and their origins in the Middle East. See Gil Atzmon et al., Abraham's Children in the Genome Era: Major Jewish Diaspora Populations Comprise Distinct, Genetic Clusters with Shared Middle Eastern Ancestry, 86 Am. J. Human Genetics 850 (2010). The principle of self-determination did not apply immediately in Palestine, to Jew and non-Jewish alike. Cf. Benjamin Akzin, The Palestine Mandate in Practice, 25 Iowa L. Rev. 32, 58 (1939-1940) (―Both the establishment of the Jewish National Home and the development of self-governing institutions [in Article 2 of the Mandate] appear here as aims which cannot be carried out until the country has been placed under suitable conditions, and it is incumbent upon the Government so to place the country. . . . the text speaks, moreover, of ‗development‘, an expression connoting gradual evolution. Thus, with regard to these two aims, ultimate goals are stated, and the Government is responsible for a policy that would lead toward these goals.‖).
It should be evaluated why the claims of the Jewish population who were a minority were given greater weight than the numerical majority in Palestine, and why Palestine was given more weight for instance than the Jews in Mesopotamia. Dr. Isaiah Friedman provides the potential reason in Isaiah Friedman, British Pan-Arab Policy, 1915-1922, at 199-200 (2010):
When the Balfour Declaration was being discussed, British statesmen and public men, expressing admiration for Jewish peoplehood, considered their persistence as a nation "a unique phenomenon." In a briefing of Cabinet ministers, Ronald MacNeil, M.P., who subsequently (in 1922-1924) served as Under- Secretary of State for Foreign Affairs, pointed out that nationalism was an important characteristic of the Jewish people. Its spirit had been an active force for centuries; Palestine had never ceased to attract them. Heretofore, owing to adverse political conditions, their aspirations could not be realized; however [what follows is a quote (ed. E.M.)], the settlement that must follow the present War may, for the first time, provide such an opportunity. The Allies have proclaimed that the settlement must be based on the principle of nationality. It would be a strange and glaring anomaly, if while professing to observe that principle, we were to deny or ignore the claims of nationality on the case of the people who have throughout history clung to them more tenaciously than any other...The future of Palestine is one of the problems that must be solved and the proposal to make that country the domain of a reconstituted Jewish state, the "National home of the Jewish people," has attractions both from an historical and a political point of view.
[This is Dr. Friedman commenting:]With the notable exception of Edwin Montagu [Montague was out of the country when the British War Cabinet approved the Balfour Declaration, as mentioned in Grief‘s book (ed. E.M.)], State Secretary for India (an assimilated Jew), British Ministers held identical views to those of Ronald McNeil.
The records of the 5 December 1918 meeting of the Eastern Committee of the War Cabinet, mentioned supra, give their reasoning Palestine was excluded from self-determination, as quoted in Jacques Gauthier, Thesis 314-15 (2007):
"The problem of Palestine cannot be exclusively solved on the principles of self determination, because there is one element in the population - the Jews - which, for historical and religious reasons, is entitled to a greater influence than would be given to it if numbers were the sole test. It is necessary, therefore, to devise some scheme of government which will at once protect Arab interests, and give effect to the national aspirations of the Jewish race." ii. [This was written prior to me considering the Fourteen Points:] The first interpretation above in my opinion at once is not tenable. In point 9. infra towards the end of this backgrounder, I show the plain meaning of the Balfour Declaration and Mandate, as well as the historical context in which they were written, as well as external evidence seem to indicate world Jewry were the intended beneficiary. Smuts, in conceiving Article 22, explicitly mentioned in the quote supra, he ―wanted the Zionists in Palestine.‖ Therefore, under this interpretation there may have been a minor drafting error in paragraph 1 of Article 22 of the League Covenant. It should have read, with the insertion in brackets: "To those colonies and territories . . . which are inhabited by peoples [and by those inhabitants we intend to bring in] . . ., 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."
In fact, since Article 22 was not formally applied to Palestine until the San Remo Resolution, when at the exact same instance the Diaspora Jews were given an implied right to settle in Palestine, based on an ―historical connection,‖ meant the Diaspora Jews were in effect inhabitants of Palestine. It seems to me a legal right to live in a place is comparable to an existing inhabitant who happens to be out of the country. D.F.W. Van Rees stated: "In virtue of the Balfour Declaration, brought in the opening passage of the Mandate, [the Jewish people] is – in effect – a part of the inhabitants of Palestine." Nathan Feinberg, Studies in International Law 525 (1979); see also id. at 525-26 and Isaiah Friedman, British Pan-Arab Policy, 1915-1922, at 201- 02 (2010) quoting similar opinions by Van Rees on another occasion, J. Stoyanovsky, and Ernst Frankenstein, the latter two quoted in the e-mail package Bernice forwarded to you Mr. Brand. So from the San Remo Resolution onward, under this interpretation, there does not appear to be any inconsistency at all with paragraph 1 of Article 22 of the League Covenant. That this is a sound interpretation is evidenced by the Weizmann letter, quoted supra, which seemed to indicate that the whole reason for wanting to recognize the Balfour Declaration in the San Remo Resolution and Treaty of Peace was to remove all disparities created by the language of Article 22.
This was apparently an application of ―indigenous‖ status. Internet Radio Host Yehuda HaKohen in The Struggle: Indigenous Pride (IsraelNationalRadio.com broadcast June 10, 2010) stated:
Now [Rabbi MK Rabbi Nissim Z'ev] you are spearheading an initiative to have the Jewish people recognized as the indigenous population here in the Land of Israel. But before we begin, I'd like to take a moment to explain to our listeners the official internationally accepted definition of "indigenous people.‖ A United Nations study prepared in 2004 says, and I am reading this now, that "indigenous peoples and nations are those which have a historical continuity with pre-invasion and pre-colonial societies that developed on their territories. The historical continuity may consist of the continuation for an extended period reaching into the present of one or more of the following factors: occupation of ancestral lands or at least of part of them, common ancestry with the original occupants of these lands, culture or religion, language, residence on certain part of the country or in certain regions of the world." Now this definition was prepared towards the adoption of the Declaration of the Rights of Indigenous People by the U.N. General Assembly in 2007. This Declaration sets out the individual and collective rights of indigenous peoples as well as their rights to culture, identity, language, employment, health, education, and many other issues. It also notes, for example, in Section 10 that indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior, and informed consent of the indigenous peoples concerned, and after agreement on just and fair compensation, and where possible with the option of return. The Declaration also promotes their full and effective participation in all matters that concern them and their right to remain distinct and pursue their own visions of economic and social development.
On Update from the Annual United Nations Forum on Indigenous Issues, http://www.justicenow4israel.com/forumupdate1.html (last visited July 11, 2010), the group website of Att. Howard Grief, it is reported that ―the Permanent Forum Chairman (Carlos Mamani Condori) [on the Annual United Nations Forum on Indigenous Issues] said that if the Government of Israel would give them the permission, he would declare us Indigenous and that RefWorld would need to follow his lead." So, if no political action is taken by the Israeli Government, it is apparent they are stymying such recognition (for political motivations?).
[Insert: JINSA reported that the U.S. will sign the United Nation's Declaration of the Rights of Indigenous Peoples, as reprinted in The Rights of Indigenous Peoples, IsraPundit.com, Dec. 20, 2010. Hopefully this news gives PM Netanyahu impetus to make the simple declaration necessary to get the Jews recognized. PM Netanyahu should wait for the U.S. to sign it, and then spring it on Obama as a trap.] iii. [This was written prior to me considering the Fourteen Points:] There is a third interpretation, which if it did or did not enter the minds of the drafters of Article 22, should be evaluated for its underlying legal correctness. The question should be asked: did the Jews have a preexisting legal right to Palestine at the time Article 22 was adopted? If so, like the previous view, this would make Diaspora Jews comparable to an inhabitant who happened to be out of the country at the time, and like the previous view world Jewry would be the beneficiaries of political rights. Here are sources that Jews have a right to Palestine: a. ―It is clear therefore that, in the foundation principles of international law, there is no basis for prescription against Israel, either on the ground of dereliction or of undisputed possession.‖ See generally Blackstone, William E (October 1891), May the United States Intercede for the Jews, 8 Our Day 241, 245-48 (1891), available at http://books.google.com/books?id=X7QRAAAAYAAJ&pg=A245. b. “This forced exile of most of the Jewish people from their sacred land does not mean that the Jews relinquished legal and moral ownership of their land. This judgment has been confirmed to me by retired British Judge Gerald Rapport. For more than 1800 years all Jews, wherever in the world they were, prayed towards Jerusalem, their eternal capital and the eternal centre of all Jewish life. The Jews also yearned to return to Judea and Samaria (West Bank), which is the heartland of ancient Israel. It was not until 1967 that these dreams were totally realized.‖ Roy Chweidan, History of Jewish Sovereignty Over Israel Over 3000 Years, Think-Israel.org, Mar.- Apr. 2010. c. Dore Gold, The Fight for Jerusalem: Radical Islam, the West, and the Future of the Holy City 123 (2007) (―Significantly, the League of Nations Mandate did not create new rights, but rather acknowledged a pre-existing right which, in the view of the international community at the time, had clearly not been forfeited by the Jewish people or suspended by international law after successive empires occupied and ruled Jerusalem and the rest of the area of Palestine in the intervening centuries.‖). d. See generally Ernst Frankenstein, Justice for My People 106-07 n.34 (1944) (weighing whether the Jewish people had a preexisting right to Palestine balanced with other claims, and concluding ―the old Jewish claim not only is conclusive in itself, but has been recognized in international law, or in the words of Field March Smuts: ‗The promise of Abraham had at last become a part of the international law of the world.‘‖). e. Att. Howard Grief supports this view in a quote supra. f. The Israeli Proclamation of Independence states: ―This right is the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State.‖ What ―natural right‖ could it have been referring to?
But sources that oppose such a contention: g. On one draft of the Mandate that had the recital ―Recognising, moreover, the historical connection of the Jewish people with Palestine and the claim which this gives them to reconstitute it their national home‖ Curzon minuted, as reprinted in Doreen Ingrams, Palestine Papers 1917-1922: Seeds of Conflict 92 (1972):
It is a great pity that Mr Vansittart should have acted independently about the preamble. Acting upon Mr Vansittart's own advice I told Dr Weizmann that I could not admit the phrase [historical connection, etc.] in the Preamble.
And now I find that Mr Vansittart has gone and put it back again. It is certain to be made the basis of all sorts of claims in the future. I do not myself recognise that the connection of the Jews with Palestine, which terminated 1200 [sic] years ago, gives them any claim whatsoever.
On this principle we have a stronger claim to parts of France.
I would omit the phrase.
I greatly dislike giving the draft to the Zionists, but in view of the indiscretions already committed I suppose that this is inevitable. h. Ruth Gavison, The Jews‘ Right To Statehood: A Defense, AzureOnline, 2003 (―Indeed, it is my contention that at the beginning of the twentieth century, when the Zionist movement was in its formative stages, the Jewish people did not have the right to establish a state in any part of Palestine. By the time statehood was declared in 1948, however, the existence of a thriving Jewish community with a political infrastructure justified the creation of a Jewish state.‖). [Note: I am not sure if this quote necessarily conflicts with yours and Ernst Frankenstein's position.] iv. Now that you called to my attention President Wilson‘s 14 Points, I believe all my interpretations above have been premised on the wrong assumption. I had assumed ―peoples‖ as used in paragraph 1 of Article 22 meant the plural of the term for persons generally. President Wilson in the 12th point in his 14 Points stated: ―[T]he other nationalities which are now under Turkish rule should [etc.]‖ At the time of the writing of Article 22, the Jewish nationality indeed did, to paraphrase paragraph 1, presently inhabit one of the ―colonies [or] territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them.‖ This might be correct if there was a single Jew who lived in the Turkish Empire, but is most certainly correct if there was a self-sustaining settlement of Jews living there, as there was in the so-called Old Yishuv and New Yishuv, not to mention Bagdad. The term ―peoples‖ in paragraph 1 of Article 22 was apparently identical to the term ―nationality‖ in the 14 Points. Webster's Revised Unabridged Dictionary 1063 (G & C. Merriam Co., 1913, ed. Noah Porter) states in the entry for ―people‖: ―Peopleis [sic] a collective noun, generally construed with a plural verb, and only occasionally used in the plural form (peoples), in the sense of nations or races.‖ The 1828 edition of the same dictionary stated similarly: ―When people signified a separate nation or tribe, it has the plural number.‖ For a webpage with the full text of both editions for the entry ―people‖, see http://tinyurl.com/36rvtc6. The correct elements in the previous interpretations I gave supra should be brought into this interpretation. For instance, the whole Jewish people were the beneficiaries of political rights in Palestine.
B. You stated: ―Paragraph 1 of Article 22 principles were used in allocating 99% of the League of Nations Mandate, but was not used for 1% because of the historical connection of the Jews with Palestine.‖:
1. It is ironic that while legally you are correct that self-determination was excluded in Palestine, in practice it might have been the other way around. They were denied self-determination, for example, in Iraq. Isaiah Friedman, British Pan-Arab Policy, 1915-1922, at 308 (2010) (―As Thomas Owens, the American Consul in Baghdad, later observed, there was a very large part of the population that ‗would welcome with open arms the return of the Turks...Feisal has never been popular. He was forced upon the country and almost all the Arabs are said to harbour a resentment...the opposition is quite open and often very bitter.‘ The installation of Feisal in Baghdad would never have been possible without the exertion of British power and prestige. This did not sit well with the principle of self-determination.‖). Transjordan too was a denial of Arab self-determination who preferred the British, see id. at 329, but Transjordan was part of the Palestine Mandate in which self-determination was not to apply anyway. On the other hand, after the Nebi Musa riots, sheiks of 82 villages in the neighborhoods of Jerusalem and Jaffa, claiming to represent 70% of the Arabs in Palestine ―declared that they saw ‗no danger‘ in Zionist immigration.‖ Id. at 8. Regarding the Palestine Arab Congress, who we hear so much about, in Dr. Isaiah Friedman‘s words, ―[n]either constitutionally nor ideologically did the[ir] delegation [to London] represent the Palestinian people at large . . . .‖ Id. at 9. I have not had time to read Dr. Friedman‘s full book, save for the chapter on Article 22, and chapters 10-11, Appendix B, and a little of chapter 1, though I look forward to reading the book when I have the chance. The statements of local Arab support for Zionism included in an appendix in his book are remarkable. See id. at 399-401.
Prof. Paul Eidelberg states Israel could be a light unto the Arab world regarding self- determination: Paul Eidelberg, Jewish Statesmanship: Lest Israel Fall 199-200 (University Press of America, Inc. 2002):
He should convey a still more significant set of facts. He should remind men and women that the US did not recognize the Soviet Union until the Administration of Franklin D. Roosevelt – sixteen years after the Bolshevik Revolution. Four American presidents, including Woodrow Wilson, refused to recognize Communist Russia on the grounds that it was animated by a militant ideology and ruled by men whose signatures to international agreements were worthless. Nor did recognition of the Soviet Union diminish its hostile designs on democratic America. (Recall General Ivri's remark regarding the sham peace between Egypt and Israel.) What our President should stress, however – again at home and abroad – is this: It was no "peace process" but only the disintegration of the Soviet dictatorship and its taking the path of democracy that terminated the Cold War between the US and the USSR. Only now can there be peace between Russia and America.
Similarly, Israel‘s Government should boldly affirm that no ―peace process" but only the non-secular democratization of Arab-Islamic dictatorships can provide a basis for peace in the Middle East. This truth should be made a declaratory principle of Israel‘s foreign policy. Consistent with this principle and with our "handbook" on diplomacy, Israel should not negotiate with any Arab-Islamic regime until it shows clear signs of democratic reform. One sign is the introduction of a market economy; another is a reduction of military expenditures. A market economy would decentralize the corporate power of Arab states and raise the living standards of their poverty-stricken people. Israel can hasten the non-secular democratization of the Middle East by adopting a Jewish democratic constitution and by privatizing, in a democratic way, its own economy. . . .
C. You state: ―because of the historical connection of the Jews with Palestine. This was the stated reason, but it must be remembered that the Jews fought alongside the Allies in the Jewish Brigade (the Jews who fought in them were known as ‗Palestinians‘)‖:
1. To my recollection Jabotinsky wanted to do more, but the Jewish brigade was not allowed to fight west of the Jordan River. So this does not seem to be the biggest reason the Britain wanted Jews to have a state. Dr. Isaiah Friedman in his books and Att. Howard Grief in his chapter on the Balfour Declaration in his book, cited supra, give the reasons for the Balfour Declaration. I have not done independent research on it.
D. You state: ―even though they had been offered political rights if they helped the Allied Forces.‖:
1. Att. Howard Grief gives reasons why the reference to ―the districts of Damascus, Horns, Harm and Aleppo‖ in McMahon's letter of October 24, 1915 means the towns and their vicinities. See Howard Grief, The Legal Foundation and Borders of Israel under International Law 333 et seq. (2008). Dr. Isaiah Friedman strongly disputes this in Isaiah Friedman, British Pan-Arab Policy, 1915-1922, at 302 et. seq (2010). I have not independently researched this.
2. You stated in a supplemental post [not included in this backgrounder]: ―According to the Vienna Convention, Foreign Ministers have full powers to enter into treaties, without more. It would appear that the same would apply to executive agreements.‖ If that was customary law in 1921, did the Hedjaz formally "recognize[e] the special position" of Great Britain in Palestine, and implicitly the Jewish National Home, when Hussein empowered Abdullah to sign the Anglo- Hedjazi Treaty, which the latter did on December 8, 1921, but Hussein never ratified? See generally Isaiah Friedman, British Pan-Arab Policy, 1915-1922, at 337-40 (2010); see also Howard Grief, The Legal Foundation and Borders of Israel under International Law 218-22 (2008) (mentioning that Emir Feisal, who incidentally appeared and acted in the name of King Hussein at the Peace Conference, in two memoranda excludes Palestine from the Arab demands, and ―[t]he agreement the Arab leader originally signed with Weizmann [the so-called Feisal- Weizmann Agreement of March 3, 1919] was a voluntary act that legally bound not only the Arab Kingdom of Hedjaz, in whose name he officially acted, but also the Arab national movement for which he was the acknowledged spokesman at the Paris Peace Conference.‖).
E. You state: ―The Arabs in the Arabian Peninsula did offer some help to the Allies with T.E. Lawrence. Lowell Thomas, with an eye to selling newspapers made much more of this limited help than it deserved but those Arabs were granted political rights to the Arabian Peninsula.‖
1. I have not done independently researched this area. If true, I did not know about the newspaper angle. The product summary on Amazon.com for Dr. Isaiah Friedman‘s book, cited supra states: ―Sharif (later king) Hussein did rebel, but not for nationalistic motives as is generally presented in historiography. Early in the war he simultaneously negotiated with the British and the Turks but, after discovering that the Turks intended to assassinate him, finally sided with the British. There was no Arab Revolt in the Fertile Crescent. It was mainly the soldiers of Britain, the Commonwealth, and India that overthrew the Ottoman rule, not the Arabs.‖
F. You state: ―There is no doubt that they are inconsistent. And initially, Wilson was against that portion of the Mandate, but ultimately he acquiesced. In fact it was delayed during his tenure in office and wasn't accepted until Warren Harding came into office.‖
1. Due to the chronology I gave supra for President Wilson‘s support for the Balfour Declaration, and I assume the U.S. approved the final text of Article 22 in the Council of Ten, I find this out of character for President Wilson, and I wish you would have supplied a source. Of course, the positions on the Jewish National Home of all the main players of Article 22 should be investigated for the proposed legal journal article. I already provided citations supra that have bearing on this. Additionally, I found two more citations with particular reference to the Paris Peace Conference: i. U.S. President Franklin Delano Roosevelt to Secretary of State Cordell Hull stated in 1938: "I was at Versailles (the Paris Peace Conference, 1919), and I know that the British made no secret of the fact they promised Palestine to the Jews. Why are they now reneging on their Promise?" ii. Dore Gold, Averting Palestinian Unilateralism 15 (2010) (―[T]he French government also drafted regulations for the Paris Peace Conference in 1919 which included ‗nationalities in the process of forming states which had not yet been recognized.‘ They included Yugoslavs, Finns, Arabs, Armenians, and the Jews of Palestine.‖).
2. Att. Howard Grief gives the reasons the confirmation of the Mandate for Palestine was delayed in his book. See generally Howard Grief, The Legal Foundation and Borders of Israel under International Law 375-84 (2008).
3. The position you attribute to President Wilson seems to be more in line with a position of Secretary of State Lansing who was an opponent of the Jewish National Home. His term ended on February 13, 1920, while Wilson was president up to March 4, 1921. Secretary Lansing wrote to President Wilson on December 13, 1917 in 2 American Zionism 297-98 (Aaron S. Klieman ed. 1990):
My judgment is that we should go very slowly in announcing a policy [on the disposition of Palestine] for three reasons. First, we are not at war with Turkey and therefore should avoid any appearance of favoring taking territory from that Empire by force. Second, the Jews are by no means a unit in the desire to reestablish their race as an independent people; to favor one or the other faction would seem to be unwise. Third, many Christian sects and individuals would undoubtedly resent turning the Holy Land over to the absolute control of the race credited with the death of Christ.
For practical purposes I do not think that we need go further than the first reason given since that is amble ground for declining to announce a policy in regard to the final disposition of Palestine.
G. You quote from the internet: ―The British however made acceptance of the terms of the mandate a precondition for any change in the constitutional position of the Arabs. A legislative council was proposed in The Palestine Order in Council, of 1922 which implemented the terms of the mandate. It stated that: ‗No Ordinance shall be passed which shall be in any way repugnant to or inconsistent with the provisions of the Mandate.‘ For the Arabs, this was unacceptable, as they felt that this would be ‗self murder‘.‖:
1. The raises an intriguing question whether the proposed legislative council would have been able to pass ordinances contrary to the terms of the Mandate despite the quoted provision, using the same contorted logic Palestine courts used not to invalidate laws passed by the British Administration that violated the Mandate, see Howard Grief, The Legal Foundation and Borders of Israel under International Law 124-27 (2008); see also Bernard Joseph, British Rule in Palestine 68-69 (1948) (stating, inter alia, ―Article 3 of the Palestine (Amendment) Order-in- Council, 1923, provides that ‗no ordinance shall be promulgated which shall be in any way repugnant to or inconsistent with the provisions of the Mandate . . .‘ / The Palestine Order-in- Council purports to exist by virtue of the Foreign Jurisdiction Act, 1890, which enables His Britannic Majesty to exercise jurisdiction, for the purposes of English law, in territory over which he does not have the right of legislation by the Royal Prerogative or by Acts of Parliament. The Palestine Courts have seized upon this fact to avoid declaring invalid various legislative acts contrary to the terms of the Mandate. . . .‖).
2. Att. Howard Grief stated in Howard Grief, Churchill's 1922 White Paper Set the Stage for Conflict, Jerusalem Post, June 5, 1992: ―Instead, it [the Churchill White Paper] proposed a Legislative Council that would be largely elected by Arab electors, and hence make inevitable the formation of an Arab-dominated government and an eventual Arab State in Palestine. That this did not actually occur was not due to the White Paper, but to the Arab leaders who rejected the statement's offer of a Legislative Council.‖
3. Regarding the legality of setting up a legislative council that would thwart the Jewish National Home, Prof. Nathan Feinberg, wrote in Nathan Feinberg, The Problem of the Legislative Council – Its Legal Aspect, in Some Problems of the Palestine Mandate 82-83, 87 (1936):
And, indeed, a thorough and profound study of Article 2 of the Mandate leads to the conclusion that precisely that last provision, – and not, as is generally thought, the second, dealing with self-governing institutions, – was inserted by the framers of the Mandate to protect the rights of the Arab population.
Article 2 does not stipulate two independent and equal objects of the Mandate; it sets forth only one aim – the establishment of the Jewish National Home. The development of self-governing institutions is not antithetical to the establishment of the National Home; it is, on the contrary, an integral and organic part of the process of its realization, and must therefore be effected only in so far as it is in harmony with, and of aid to, the upbuilding of the homeland.
With regard to the Arab population Article 2 contains the general reservation of the Mandate, namely that their civil and religious rights shall be safeguarded. It is, moreover, entirely irrelevant that this Article speaks of "all the inhabitants" of the country rather than specifically of the "non-Jewish communities", or "other section of the population" – terms employed in other corresponding articles. Here as in those articles, only civil and religious, and not political, rights are guaranteed. Indeed, the Privy Council, in its judgment in the Urtas Springs Case, authoritatively stated that the "key to the true purpose and meaning" of the last provision of Art. 2 of the Mandate "is to be found" in its "concluding words: irrespective of race and religion", and that "the purpose of the article is to secure that in fulfilling the duty which is incumbent upon every Government to safeguard the rights from time to time belonging to the inhabitants of the territory the Mandatory shall not discriminate in favour of persons of any one religion or race".
It is worthy of note here that at one time the Permanent Mandates Commission itself was apparently convinced that the Palestine Mandate had only a single aim – i. e. the establishment of the Jewish National Home.
In the Questionnaire framed in 1922 to assist the Mandatory Power in the preparation of the annual reports, the various questions to be answered were enumerated, and were grouped under a number of headings each of which represented an important problem. For example, we find the "Jewish National Home", "Autonomous Administration", "Land Regime", "Judicial System", "Economic Equality", "International Conventions", etc. There is no heading for the question of self-governing institutions; it was accorded only a minor position as one of the sub-headings in connection with the topic of the Jewish National Home. It was, therefore, considered as a means to an end, rather than an end in itself.
. . . .
This brief history [not quoted here (ed. E.M.)] of Article 2 just given shows clearly that in introducing the words "the development of self-governing institutions" the framers of the Mandate had only one object in mind: to satisfy, at least partially, the Zionist desire for the future development of the Jewish National Home into a self-governing Commonwealth. The words were by no means intended to protect any rights of the Arab population.
Research into the history of Art. 2 therefore confirms the conclusion to which the logical or teleological interpretation of it has already led us: that self-governing institutions do not figure in the Palestine Mandate as an aim in themselves, antithetical to the Jewish National Home; that they must, accordingly, be introduced and developed within the limits of the National Home and only in so far as they do not impede or aggravate the process of its growth.
H. You state: ―While the Soviet Union, in 1964, reframed this religiously based animus as secular nationalism motivated by a quest for political self determination by first inventing ‗the Palestinian People‘ and then their motive of ‗liberation‘ . . . .‖:
1. That is fascinating. I did not know that. Moshe Feiglin in an interview on Yishai Fleisher and Friends: When the Ark Advances (IsraelNationalRadio.com broadcast May 27, 2010) recounting a fascinating diplomatic interchange between Israel and Russia stated:
Let me tell you a true story about Russia, not from so long time ago. Silvan Shalom was the Foreign Minister then, a few years ago. And Russia suffered from a terror attack from Chechnya and Silvan Shalom met his colleague from Russia and told him, the Foreign Minister from Russia: ―We Israelis understand you, identify with what you are going through because we also suffer from terrorism.‖ What do you think the reaction of the Russian Minister was, the big, strong Russia? He immediately told Silvan Shalom, our Foreign Minister at the time, the following: ―You have it all wrong Mister Shalom. The Chechnians are terrorists because they are fighting on a land that belongs to Mama Russia. But the Palestinians are freedom fighters because they are fighting for their own rights to their own land.‖ So he did not let for one second Sivan Shalom, our official, the Israeli Minister, to put himself in the same moral spot – not military spot, moral spot – that he insists he is fighting on. And it is crucial to understand the connection between the moral spot that we are putting ourselves and our physical military ability to defend ourselves. . . .
2. Radio talk show host and author Chuck Morse in an interview on The Tamar Yonah Show: The Flotilla's Modus Operandi (IsraelNationalRadio.com broadcast June 1, 2010) explains the North Vietnamese connection, who the Soviet Union were allies with during the Vietnam War:
Chuck Morse: [I] discovered that after the fall of the Soviet Union, due to the release of Soviet archives and also in the autobiography of Abu-Iyad – who of course is a notorious terrorist, his book Palestinian Without a Motherland – that the PLO which had previously not sought statehood – they just sought the destruction of Israel, they met with political advisers in Hanoi in 1973 and they envied the fact that the North Vietnamese had been so successful in cultivating Leftwing support in the United States and they wanted to do the same. The North Vietnamese advised them to stop calling for the destruction of Israel and the killing of Jews and instead talk about a national liberation movement in which they would share Israel as a way to eventually reach their goal.
Tamar Yonah: I want to interrupt you because I want our listeners to hear what you just said because this is very important and you talk about this in your book. What Chuck Morse our guest is saying is that the North Vietnamese political advisers suggested to the Arabs, stop talking about annihilating Israel and instead turn your terror war into a struggle for human rights . . . . Then you'll have the American people eating out of your hand. . . .
Paragraph 1 did have the effect of slowing American agreement to the Anglo- American convention that encompassed the terms of the Palestine Mandate.
G. You state: ―Paragraph 1 did have the effect of slowing American agreement to the Anglo- American convention that encompassed the terms of the Palestine Mandate.‖:
1. As indicated above, I read the full negotiating history of the Anglo-American Convention contained in the Division of Near Eastern Affairs, Department of State, Mandate for Palestine 45 (1927). To my recollection no inconsistency between paragraph 1 and Mandate for Palestine was brought up. As to why the United States did not initially want the preamble of the Mandate to be included in the preamble of the Convention, I believe one of the reasons is found in the citation for the second reason in 2[A8]. above. But since the U.S. had the same position of not including preambles of mandates at that point in the negotiations in regards to the other mandate conventions, id. at 75, it was apparently not something unique to Palestine.
"What really undermined an Anglo-American consensus, * * * was Article Twenty- two of the Covenant, which raised more questions than it solved. This article dealt with the structure and apportionment of conquered territory; in no way did it resemble a precise legal instrument. Rather, it reflected the spirit of Wilson; that is to say, it was a statement of ethical and political principles, adorned with fine language and opaque sentiments. As applied to Palestine, it was a constant source of friction and recrimination. See: Stuart Knee, "Anglo-American Relations in Palestine 1919-1925: An Experiment in Realpolitik" http://mefacts.com/cached.asp?x_id=11585
H. You cite the quote: ―Article Twenty-two of the Covenant, which raised more questions than it solved. This article dealt with the structure and apportionment of conquered territory; in no way did it resemble a precise legal instrument.‖:
1. Dr. Bernard Joseph made a statement on Bernard Joseph, British Rule in Palestine 53 (1948) similar to your quote that Article 22 was imprecise:
Much attention has been directed to the effect in law of the reference in the Preamble to Article 22 of the Covenant of the League. An examination of the origins of this Article reveals significantly enough, that it was drafted by General Smuts and did not have the benefit of scrutiny by legal experts [question: was not David Hunter Miller, quoted supra, a legal advisor? (ed. E.M.)]. It was the handiwork of practical politicians with idealistic inclinations. As one writer put the matter, "the spirit of compromise runs all through the article ... the imperialists got what they wanted and the idealists succeeded in qualifying such grants by providing for securities for the due performance of this trust created." Mr. Van Rees, chairman of the Permanent Mandates Commission, aptly observed: "Drafted hastily by authors inspired by essentially political considerations, it escaped attentive examination by a competent drafting body, with resulting lapses from precision and obscurities."
Dr. Bernard Joseph also quotes in his book the position of the Jewish Agency to the Peel Commission in id. 57 [Dr. Bernard Joseph was a Legal Adviser for the same Jewish Agency for Palestine and at times headed its Political Department.]:
"But a literal construction of Article 22 is not in this case the right line of approach. In his work on the League Covenant, Sir John Fischer Williams refers to the 'studied vagueness' of Article 22, and points out that it uses language appropriate, not to a legal document, but rather to a preamble, or to the speech of a Minister introducing a Bill into Parliament. Article 22, in other words, is not a code couched in language of legal precision and is not to be taken as dealing exhaustively with every possible application of the mandatory system.‖
Dr. Jacques Gauthier in Jacques Gauthier, Thesis 443 (2007) states: ―However, Article 22 of the Covenant, which was approved by a vote of the Assembly of the League of Nations on April 25, 1919, was a diluted attempt to capture the principles previously introduced by President Woodrow Wilson to the Council of Ten of the Principal Allied and Associated Powers in January 1919. It was dangerously ambiguous in many respects.‖ In my opinion, it might be an anachronism to call it ―dangerously ambiguous,‖ which seems to be superimposing future developments regarding its misinterpretation as reflecting on the character of the text of Article 22 that might be able to be understood well from the preparatory documents and external evidence.
2. The contention that the wording of Article 22 was imprecise would need to be investigated from the documentary record and legal analysis. I presented preliminary evidence above that suggests there might have been no precision errors with Article 22, particularly paragraph 1, but also paragraph 4, in regards to Palestine.
I. You cite the quote: ―As applied to Palestine, it was a constant source of friction and recrimination.‖:
1. Just as the Palestinian Arabs are aided by outside states and group today, some of the legal recrimination during the Mandate period was instigated by outsiders. Dr. Isaiah Friedman comments in Isaiah Friedman, British Pan-Arab Policy, 1915-1922, at 9-10 (2010).:
Samuel was unaware that the members of the delegation [of the Executive of the Palestine Arab Congress who traveled to London] had been invited by a group of former British officers, politicians, and clergymen who sympathized with the Palestinian cause. Their purpose was to arouse British public opinion to the "Zionist danger" and call upon the British Government to reconsider their policy. The delegation was provided with legal advice by experts versed in international law and generous financial assistance. Their activities amounted to an overt obstruction of official policy. Miss Francis Newton, an English woman living in Haifa, accompanied the delegation and played a pivotal role in building their case. It was she who probably discovered the loophole in McMahon's letter of 24 October 1915 and gave the term "district of Damascus" a narrow interpretation. It became a standard argument of the Palestinians vis-a-vis the British Government.
I recall reading a news account that Fayyad or the PA was advised by outsiders to seek unilateral recognition of a Palestinian state.
6. You ask: "Assuming inhabitants of mandates had Nominal Sovereignty or a "beneficial interest in sovereignty," in the case of Palestine did this mean the Jewish people would have exclusive sovereignty over Palestine. Is this consistent with paragraph 1 of Article 22 of the League of Nations Covenant and were the non- Jewish inhabitants included in the same paragraph 1 of Article 22?" I am not familiar with the term "nominal sovereignty". I have concluded that the term "mandate" is equivalent to the term trusteeship which has been used by the UN for the same arrangements. If Great Britain was the trustee, who was the beneficiary? The only named beneficiary was the Jews. The beneficial interest in the political rights to Palestine became the legal interests on Great Britain's abandonment of its trusteeship in 1948 according to the legal research of Howard Grief. I have not duplicated his research on this doctrine of International Law but I am willing to accept it. He notes that this view is confirmed by the 1969 Vienna Convention on Treaties.
It provides, in Article 70 1. (b) for the consequences of the termination of a treaty."
Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention: does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.
Also, Article 80 of the UN charter preserves the territorial allocations of the League of Nations.
[SUPPLEMENT 1: The acquired rights doctrine is not crucial to my view of Israel's sovereignty. That is because I correctly view the League of Nations "mandate" arrangement as a trust. From the moment of inception of the British Mandate or trust, the Jews had a "beneficial interest" in those exclusive political rights that ripened into a legal interest when the British abandoned their trust in 1948. Some may say their interest is beneficial still, except for the part that the UN recommended they take in 1948.]
[SUPPLEMENT 2: Here are some basics on the law of trusts and of the law of what constitutes sovereignty.
In trust law there are three elements, the trustee, the trust res or thing held in trust, and the beneficiary of the trust.
If you are the legal owner of a piece of property, real or personal, and you need a ruling on your rights, under the English and American system you go to a court of law. But if you are the beneficiary of a trust res, you don't have legal title, only an equitable title. You go to a court of equity or chancery under the English system, and to an American Court sitting as a court in equity – although some states may still retain separate equity courts.
The trustee is someone (person, business or government corporation, or even a nation state) deemed trustworthy and capable of looking after the trust res for the beneficiary and carrying out the terms of the trust. The trust res may be tangible or intangible property. The beneficiary is the person or group or corporation for whose benefit the trust is being administered.
Now lets look at the British Mandate or trusteeship. Great Britain was the trustee. The Jews were the beneficiaries. It is not clear whether these beneficiaries were only the Jews in Palestine or the entire group of jews throughout the diaspora. The trust res was the political rights to Palestine – the right to Jewish self determination and sovereignty.
In order to exercise sovereignty you have to maintain order within the boundaries of your state, collect taxes so as to maintain needed government, and the citizens of the state must have the obligation to come to the defense of the state. If someone in your state causes injury to someone outside the state, you must take responsibility for it because it is your obligation to maintain order but you may have sovereign immunity from a law suit by a citizen of an outside state. .
It is clear that when the trust came into being, the Jewish population of Israel, to my aging recollection was only about one third of the total population and while the Jewish Agency exercised authority of wide scope, it was not ready to exercise sovereignty. Frequently very young children who have lost their family are put as beneficiaries in a trust relationship because they are not ready to live on their own. The mandate system or trusteeships as they are now called, filled the purpose for territories that were not yet ready for sovereignty.
Not long ago, Jews in the United States sued the PLO for damages because of the death of their family members in Israel, murdered by the PLO. The PLO and the PA claimed the immunity of a sovereign but the court held that they did not possess the attributes of a sovereign. Perhaps a reading of that case will further illustrate the significance of sovereignty. The decision is one of the United States Court of Appeals, First Circuit: in UNGAR v. PALESTINE LIBERATION ORGANIZATION, Efrat UNGAR et al., Plaintiffs, Appellees, v. The PALESTINE LIBERATION ORGANIZATION et al., Defendants, Appellants. No. 04-2079. March 31, 2005. You can find the decision at http://caselaw.findlaw.com/us-1st- circuit/1046765.html]
A. You state: ―If Great Britain was the trustee, who was the beneficiary? The only named beneficiary was the Jews. ‖:
1. I evaluate your thesis in new point 11., towards the end of this backgrounder.
2. Your position is similar to the position of Dr. Bernard Joseph in Bernard Joseph, British Rule in Palestine 51-52 (1948):
A Mandatory is in the position of a trustee whose first and foremost duty is to fulfill the trust which has been placed in him by those conferring the Mandate according to the terms of the trust deed; and scrupulously to fulfill his duty to the party which in private law would be termed the beneficiary of the trust. The primary purpose of the Palestine Mandate, it is submitted, is to secure the establishment of the Jewish National Home in Palestine; hence, the true beneficiary, in the sense used in the doctrine of trusts, is the Jewish people.
Also, Att. MK Elyakim Haetzni stated in Eliakim Haetzni, Regrets..., Prophetic Round-Up, July 12, 2004, http://www.propheticround-up.com/oct2000/elyakim071204.htm:
Only our own position that the heart of the Land of Israel is "occupied territory," designated for Palestinian sovereignty – is to blame for the sensational change of roles by the International Court of Justice, replacing the Jewish people, the true beneficiaries of the "sacred trust" of the British Mandate, with the Palestinian impostors.
Dr. Bernard Joseph also gave the following analysis in at 86:
The Mandate imposes but one positive duty on the British Government: to do certain positive things to help the Jews. As long as it does nothing in fulfillment of this duty, no obligation to the Arabs arises at all. Nor is the Mandatory, because it acts in a positive manner in helping the Jews, required to carry out any corresponding positive acts whatsoever in favor of the Arabs, in equal measure or in lesser measure. The only obligation it could be said to have to the Arabs is, that in performing its duty to the Jews it should do nothing which might prejudice the civil and religious rights of the Arabs. The so-called obligation to the Arabs is merely a direction of the manner in which its duty to the Jews should be fulfilled, or considered as a qualification or restrictive condition upon the performance of its duty to the Jews.
My contention is that ―wellbeing and development‖ meant different things to different people. See Benjamin Akzin‘s position supra. Also, Dr. Joseph himself stated: "There is no reason for assuming that the establishment of the Jewish National Home is incompatible with the well- being and development of the people of Palestine as a whole despite the provision (Article 22, paragraph 1) [parenthesis in the original (ed.)] 'that the well-being and development of the peoples concerned form a sacred trust of civilization.'" Bernard Joseph, British Rule in Palestine 54 (1948). In my opinion paragraph 1 of Article 22 of the League Covenant applies both to Jews and non-Jews. In the case of the Jews, the ―wellbeing and development‖ appears to be an active effort to secure the Jewish state, but in the case of the non-Jews, ―wellbeing and development‖ was a passive obligation to preserve the civil and religious rights of non-Jews. The development of the non-Jews would come about as a natural byproduct of developing the country in order to create a Jewish National Home. What decided it for me that the existing non-Jewish inhabitants were included in paragraph 1 is the official quotes by Smuts, cited supra, regarding the ―heterogeneous character of the population,‖ and by Balfour in his official letter of December 6, 1920 to the League Council. The latter stated: ―[I]n the interest of the native inhabitants of Mesopotamia and Palestine and with the object of conferring upon them with the least possible delay the benefits of a system based on the stipulations of the Pact [i.e., Article 22 of the Covenant of the League of Nations].‖
While 3 alternative theses are possible [(1) the existing non-Jewish inhabitants of Palestine were excluded from Article 22, which is Att. Howard Grief's view in his book; (2) the Jewish people and the non-Jewish inhabitants had shared sovereignty in a Jewish state, which is close to Dr. Jacques Gauthier‘s view in his dissertation; (3) the Jewish people and the existing non-Jewish inhabitants were both included in Article 22 but national rights were reserved exclusively for the Jewish people, which is close to Prof. Benjamin Akzin‘s view in his article cited supra] and there are arguments that support each one, I tentatively believe the third interpretation is the most natural interpretation. [If you want, I give my full rationale at a later time.] The second interpretation seems doubtful, since I presume no Arab in Palestine was given the right to speak before the Paris Peace Conference alongside the Zionist delegation as part of the ―states in process of formation,‖ and no Arab was part of that Zionist delegation. See Nathan Feinberg, Some Problems of the Palestine Mandate 19-20 (1936).
I have not studied trust law, but here is possible analogy to what the San Remo Resolution did and you can tell me if it is apt: A minor is entrusted property on the proviso that the gardener and his descendants be allowed to continue to reside on the property, but the gardener is given nothing additional. Would the gardener be considered the beneficiary of the legal right to use the property, perhaps ―intangible property‖ in your description of the law of trusts? The minor on the other hand would be the beneficiary of legal title to the property when he matures subject to the proviso that the gardener and his descendants can live there. If, before the minor matures, a trustee develops the property in order to increase the value of the property for the minor when he matures, as a collateral benefit some of the improvements could not help but improve the gardener‘s living conditions such as the installation of a new pluming system on the property. Since the gardener and the minor have interests on the same property, developing the property for the minor cannot help but improve the ―wellbeing‖ of the gardener. But see Bernard Joseph, British Rule in Palestine 51-52 (1948), quoted in full at the end of this backgrounder.
The above analogy captures real life. A cable was sent to Winston Churchill from the National Islamic Society of Haifa and vicinity stating: ―We are certain that without Jewish immigration and financial assistance there will be no future development of our country as may be judged from the fact that the towns inhabited in part by Jews such as Jerusalem Jaffa Haifa and Tiberias are making steady progress while Nablus Acre and Nazareth where no Jews reside are steadily declining.‖ Isaiah Friedman, British Pan-Arab Policy 400 (2010). Another cable was sent to the League of Nation from National Islamic Society of Nazareth and vicinity stating: ―We support the Rutenberg concession [think of this as a pluming system in the above analogy (ed. E.M.)] because it is very essential for the development of the country's commerce, industry and agriculture.‖ Id. At 401. Similar cables were sent to the League of Nations from Elders and Citizens of Beissan and vicinity in the Gher District, and the representatives of the Moslem- Christian Communities of Tiberias and vicinity. Id. at 401-402. See also Benjamin Akzin, The Palestine Mandate in Practice, 25 Iowa L. Rev. 32, 68 (1939-1940) (―[W]hile the latter contemplates positive measures on the part of the Government to assist the Jewish National Home, limited by the necessity to refrain from infringing the rights of non-Jews, the practice has been to enact positive measures to assist the population generally or the non-Jewish sections of the population specifically, limited by the necessity to refrain from infringing the rights of Jews.‖).
B. You state: ―The beneficial interest in the political rights to Palestine became the legal interests on Great Britain's abandonment of its trusteeship in 1948 according to the legal research of Howard Grief. I have not duplicated his research on this doctrine of International Law but I am willing to accept it.‖:
1. Att. Howard Grief told me in a private e-mail on September 12, 2007 that might or might not relate to this issue:
What struck me most about your email is your references to the late Eugene V. Rostow and his statement that the Anglo-American Convention of December 3, 1924 "remains today part of the supreme law of the United States". As you know, I have stated a similar position in my own articles, as well as in my unpublished book. I was unaware that Rostow had also made this statement. I would like to have the specific reference and a copy of his article if you can send it to me. One jurist in Israel criticized me for making this statement in my 16-page précis, which I strongly defended. The Convention expired with the expiry of the Mandate for Palestine on May 14-15, 1948, but the rights it recognised as belonging to the Jewish People in regard to the land of Palestine (all of it!) still remain intact in U.S. law, even though the Convention no longer exists. This is the principle of "acquired rights" not dying with the termination of a treaty or an international agreement.
2. Prof. Feinberg identifies the constitutive versus declaratory rights as it relates to the Mandate in an article written before the creation of the state in Nathan Feinberg, The Recognition of the Jewish People in International Law, The Jewish Yearbook of International Law (1948), reprinted in Studies in International Law 249 (1979):
Insofar as the Mandate recognizes the existence of the Jewish people and its connection with Palestine it confirms facts and is, therefore, merely declaratory. But insofar as it grants the Jewish people the right to return to Palestine and reconstitute its National Home there – thus recognizing the Jewish people as a subject of international law – the Mandate is constitutive of that right and is therefore law-making. It is hardly necessary to add that the recognition of the Jewish people as a subject of international law is confined to those rights and duties which are provided for in the Palestine Mandate.
The right to the National Home is granted to the Jewish people as a whole, and not to any part of it . . . .
Prof. Nathan Feinberg tells how in his opinion declaratory and constitute rights were affected with the creation of the State of Israel in an article prior to the adoption of the Vienna Convention on Treaties in Nathan Feinberg, The Legal Status of the Jewish People After the Establishment of the State of Israel, in Political Status of the Diaspora Jewry (1966), reprinted in Studies in International Law 269-70 (1979):
The question now arises whether there was a change in the aforesaid status, enjoyed by the Jewish people under international law, when the Palestine Mandate ended and the State of Israel was established. It seems to me that the answer is in the affirmative: that status was terminated on May 15, 1948. It is a fact that, in the international documents pertaining to Palestine (UNSCOP) and the Resolution of the United Nations General Assembly on November 29, 1947, the term "the Jewish people" does not occur. What they do speak of is the establishment of a Jewish State, no mention being made of the attachment that might exist in the future between it and the Jewish people in the Diaspora. It is reasonable to infer that it was the aim of the draftsmen of these documents to bring about – formally, at least, if not in fact – the normalization of the position of the Jewish people. They therefore avoided imposing any international obligation whatsoever on the Jewish State vis-a-vis the Jewish people, on the assumption that the adjustment of the relations of that State with the Diaspora was a question for its sovereign decision alone. And, in fact, the Law of Return, which is the determinant and most important statute in the area under discussion, was an internal legislative act of the State of Israel, fruit of the good-will of the Israel legislator. Our conclusion, then, is that, with the establishment of the State of Israel, the Jewish people ceased to be a recognized entity in international law and the possessor of international rights.
An additional question may arise in this connection: are we really to conclude from what has been said that, with the termination of the Palestine Mandate, recognition of the very fact of the existence of the Jewish people was withdrawn? It is well to note that the recognition that was included in the Balfour Declaration, and, in the Palestine Mandate, was partly declarative and partly constitutive: declarative with respect to the existence of the Jewish people in the Diaspora and the historical connection between it and Palestine; constitutive (without going into the question of the existence of a natural right to political independence) with respect to the rights granted to the Jewish people for the purpose of the establishment of the National Home, and the recognition of the Jewish Agency.
Dr. Nathan Feinberg reiterated his position a few years later in Nathan Feinberg, The Arab-Israel Conflict in International Law (A Critical Analysis of the Colloquium of Arab Jurists in Algiers) (1970), reprinted in Studies in International Law 447 (1979):
It is worth remarking at this point that, with the termination of the Palestine Mandate on 15 May 1948 and the establishment of the State of Israel, the status of the Jewish people in international law – as the bearer of the right to a national home in Palestine – was indeed extinguished. But this does not mean the abrogation of the very existence of the Jewish people. The recognition of that people by the Mandate, as detailed above, was partly declarative and partly constitutive: it was declarative as to the existence of the Jewish people in the Diaspora and its historical connection with Palestine; constitutive as to the rights granted to the Jewish people for the purposes of establishing a national home and setting up a Jewish Agency. Clearly, recognition, which is declarative in content, cannot be revoked; accordingly, the recognition of the Jewish people's existence remained valid after the termination of the Mandate – though no longer, it is true, as a recognition of a political entity endowed with certain rights in international law, but rather of a socio-logical one, united by historical tradition and a sense of spiritual identity and a common fate.
C. You state: ―Article 80 of the UN charter preserves the territorial allocations of the League of Nations.‖:
1. See Howard Grief, The Legal Foundation and Borders of Israel under International Law 255 et seq. (2008) (―Though Article 80 no longer applies to Palestine for the original purpose it was intended to serve, it has now taken on a different function directly related to the U.N. itself, namely, preventing the alteration of the legal rights of the Jewish People by the world organization.‖).
7. You ask for my solution for Judea, Samaria, East Jerusalem and Gaza. I am hesitant, as an American citizen, to advise a solution because the citizens of Israel have to live with it and assume its risks. It is they who are closest to life and reality in Israel. But if I were philosopher king, I would annex Judea and Samaria and other parts of the West Bank that have not yet been annexed. My understanding is that Jerusalem has already been annexed. This is subject to the proviso that the population statistics recently found by Jewish demographers are correct – that the Arab population of the West Bank is overstated, is much less than the Arabs have reported. I would immediately ban any further non-Jewish immigration. I would require a loyalty oath of Jews and non-Jews in the annexed area swearing loyalty to the Government of Israel before accepting them as citizens. Whether or not the non citizens should be deported I leave to those wiser than I am. I would leave Gaza as a separate entity, reconquer it, and give it the attributes Netanyahu has mentioned as would be appropriate for a "Palestinian" state.
A. You state: ―You ask for my solution for Judea, Samaria, East Jerusalem and Gaza. I am hesitant, as an American citizen, to advise a solution because the citizens of Israel have to live with it and assume its risks.‖:
1. I believe the traditional policy of non-interference in Israeli policies for Diaspora Jews should be reexamined for the following reasons: i. Prof. Eidelberg has championed the idea that there is limited consent by the governed in Israel due to flaws in its system of government, so if Diaspora Jews called the Israeli embassies to complain about Israeli policies, it could potentially give voice to the voiceless. ii. If a Diaspora Jew believes the risk in creating a Palestinian state is greater than the risk from pursuing an alternative plan, then one has an increased duty to speak out. One of the aspects of the risk in creating a Palestinian state is that demilitarization is unenforceable in international law unless Israel has the political will to enforce it itself. See Howard Grief, Why Military Limitations on a ―Palestinian‖ State Will Fail (ACPR Policy Paper No. 52, 2001), http://www.acpr.org.il/publications/books/30-Zero-grief.pdf; Prof. Louis Beres & Zalman Shoval, JewishPress.com, Mar. 10 2004, http://www.jewishpress.com/pageroute.do/16024; cf. MEMRI TV, Clip #1205 - Ziyad Abu 'Ein, Member of Fatah Leadership: If Not for the Oslo Accords, There Would Have Been No Intifada (excerpting Al-Alam TV July 4, 2006) (―If not for Oslo, there would have been no resistance. Throughout the occupied territories, we could not move a single pistol from one place to another. If not for Oslo, the weapons we got through Oslo, and if not for the ‗A‘ areas of the Palestinian Authority, if not for the training, the camps, the protection provided by Oslo, and if not for the release of thousands of Palestinian prisoners through Oslo – this Palestinian resistance could not have carried out this great Palestinian Intifada, with which we confronted the Israeli occupation.‖). Furthermore, the security concerns the JCPA recently has expressed in Lt. Col. (res.) Jonathan Dahoah-Halevi's "The Day After PA 'Independence'" and Jonathan Rosenblum's "Can Israel Live with a Palestinian State" cannot in my opinion be reconciled with the reality of a Palestinian state. iii. While the State of Israel holds the seat of sovereignty, arguably Diaspora Jews have civil and religious rights in Palestine to emigrate and live in any part of our homeland that Israel controls and to pray at any holy place. See Elyakim Ha'etzni, The Shock of Surrender, NATIV Online, June 2007; Howard Grief, The Transfer of Jews Under Prime Minister Sharon's Unilateral Disengagement Plan , NATIV Online; Petition for Order Nisi, HCJ 3414/96 Weiss v. Government of Israel.
In an Ynet-Yesodot opinion poll of adult Jews in Israel, which interviewed 507 respondents with a sampling error ±4.4%, responding to the statement ―Arab citizens have more rights than NY Jews,‖ ―Some 56% denied the statement (35% ‗entirely disagree‘ and 21% ‗disagree to a certain extent‘) while 40% agreed (25% ‗agree to a certain extent‘ and 15% ‗agree very much‘).‖ 66% Oppose Granting Voting Right to Israelis Living Abroad, Ynetnew.com, Feb. 18, 2010, http://www.ynetnews.com/articles/0,7340,L-3850239,00.html.
Not only do Diaspora Jews arguably have the right to pray at any Jewish holy site, but I contend certain sites belong to Israel or the Jewish people. I recollect that Nitsana Darshan-Leitner stated that at least from the perspective of Israeli law the Temple Mount belongs to the Jewish people, because the deed that we purchased it is in the Bible (and I would add this deed is older than any competing deed). The same reasoning would apply to Joseph‘s tomb and the Cave of Machpela, which the Bible mentions the Jews purchased. Mark Twain mentioned the Jewish connection to Joseph‘s tomb in his 19th century book. iv. American Jews contributed vital funds to the settlement effort during the Mandate period. If Israel is now not prepared to continue the settlement effort in all portions of the homeland, then they should morally refund the money. When American Jews donated funds to the Jewish Agency for Palestine, its 1929 Constitution, Article 3, explicitly stated: "Land is to be acquired as Jewish property . . . to the end that the same shall be held as the inalienable property of the Jewish people" (emphasis added). v. Jews are being attacked in certain European countries for Israeli policies, so why should these Jews at least not have some say in those policies? vi. When it comes to civil rights, the Diaspora Jews are the ones most harmed by Israel‘s policies who unlike Israeli Jews have not chosen where they want to live in Palestine. Israel in essence was freezing us out of Judea and Samaria until recently.
2. Thanks for sharing your plan. Recently, I sat down and wrote down an exhaustive list of all the plans. Israel‘s time has been monopolized on a single plan – a Palestinian state [past agreements have unfortunately restrained democratic debate], when there are an amazing 18 other options to consider! One or more of the best plans should be brought forth in the proposed law journal article. Here is the list of plans with groupings based on their potential compatibility with the San Remo Resolution and Mandate [afterwards I will tell you which plans I currently favor].:
Arguably violates spirit or letter of San Remo Resolution & Article 3 of Mandate [Howard Grief, The Legal Foundation and Borders of Israel under International Law 94 et seq. (2008) (giving arguments that the reference to "non-Jewish communities" in the proviso to the Balfour Declaration and later international compacts referred to religious communities, including Moslems, not Arabs); Bernard Joseph, British Rule in Palestine 38 et seq. (1948) (giving arguments that the reference to "non-Jewish communities" refers to the same as Att. Grief's view); cf. Howard Grief, The Legal Foundation and Borders of Israel under International Law 306-07 (2008) ―[A]rticle 3 of the Mandate favouring local autonomy basically applied to a limited municipal area, not to a territory as large in size as Transjordan . . . .‖).] i. Autonomy for Arabs in Judea, Samaria, and Gaza under Israeli sovereignty. ii. Administrative separation between Jews and non-Jews in Israel after annexation of Judea, Samaria, and Gaza; only Jews to control foreign policy; precedent is the resident-alien system used in ancient Israel, and I believe administrative separation between Jews and non-Jews happened de facto in practice during the Mandate period; a pro for this plan is that it would decrease the importance of illegal immigration into Israel. [Note: The drawback is that this plan gives non-Jews a collective civil right to form a constitutive assembly and to have their own supreme court for criminal and civil cases, a right not found in the San Remo Resolution.] iii. Decentralization of Government of Israel after annexation of Judea, Samaria, and Gaza; country to be linked by loosely connected cantons. In practice Jews could only immigrate to the Jewish cantons. iv. Create a constitutional bi-national state after annexation of Judea, Samaria, and Gaza. v. Maintaining the status quo. Jews are restricted from living in portions of Judea, Samaria, and Gaza.
Arguably violates spirit or letter of San Remo Resolution & Article 2 or 6 of Mandate [and possibly the Feisal-Weizmann Agreement] vi. Restrict to some degree the vote for the Knesset or ability to hold office from Arabs living in Judea, Samaria, and Gaza, including with a trigger if they do not serve in the IDF or support criminality, possibly within a probationary citizenship period. vii. Force Arabs in Judea, Samaria, and Gaza to emigrate.
Arguably violates spirit or letter of San Remo Resolution & Article 5 of Mandate viii. Create a Palestinian state in Judea, Samaria, and Gaza. ix. Cede Judea, Samaria, and Gaza, except possibly for large settlement blocks, to Jordan and Egypt. x. Create a Palestinian state in Gaza linked to Sinai.
Does not violate or cause further violation of spirit or letter of San Remo Resolution BUT arguably not practicable xi. Annexing Judea, Samaria, and Judea with no law change; under some estimates Jewish majority would be down to 60% or less (66% without Gaza) west of the Jordan River. Not practical without a constitution to protect the character of the Jewish state, and I would guess the chances for a robust, Zionist constitution are much lower now than it was at the founding of the state. The demographics in Israel are precarious as it is. Paul Eidelberg attributes Arab influence in the Labor Party as a possible reason for the concession to the PLO of Oslo. See Paul Eidelberg, Jewish Statesmanship: Lest Israel Fall 13 (University Press of America, Inc. 2002). ―Even in 1988, two Arab parties with only five seats cast the deciding votes on the ‗Who is a Jew?‘ issue!‖ Id. at 30. xii. Plan for Arabs in Judea, Samaria, and Gaza to vote in Jordan. Not practicable without agreement from Jordan. xiii. Creating a Palestinian state in third-country such as Iraq or Saudi Arabia. Not practicable without agreement from the third-country. xiv. Counting on the Arabs living in Judea, Samaria, and Gaza to leave during a future war. War is unpredictable. xv. Suspension of world order and reestablishment of Davidic Monarchy. Not practicable without the Mashiach.
Anti-Jewish plans xvi. All manner of evil schemes. xvii. Intermarriage with the Arabs living in Judea, Samaria, and Gaza.
Does not violate the spirit of the San Remo Resolution xviii. Giving both Diaspora Jews and Arabs in Judea, Samaria, and Gaza the right to vote after annexation.
Does not create further violation of the San Remo Resolution xix. The Israel Government to actively encourage the democratization of Jordan, which would undercut the rationale for a Palestinian state, and hopefully bring about some sort of accommodation between the Arabs living in Judea, Samaria, Gaza, and Jordan in the future.
Plans that I have not thought about xx. [????] xxi. [????] xxii. [Etc.]
3. So from the above, the plans which I currently favor are xviii. and xix, to give the vote to world Jewry and the Arabs in Judea, Samaria, and Gaza, and to democratize Jordan.
Concerning plan xix. above to democratize Jordan, it would undercut the rationale for another Palestinian state. Since the King of Jordan does not support it, Israel would have to employ significant pressure and propaganda within the bounds of law, and should make it clear to Jordan, that if a Palestinian state in the West Bank is created and it attacks Jordan, Israel will not come to its defense; Israel could legitimately say that due to the backlash in the blockade incident that recently occurred in 2010, Israel can ill afford to kill more Arabs for the sake of other Arabs. If Jordan is democratized, it would bring self-determination to Jordan for the first time and bring an eventual atmosphere for peace. The assessment for what would happen with Jordan 15 years in the future involving such a scenario was provided in a declassified report on or reprint of an article, Harry C. Cochran, The International Arena in the Year 2000, Studies in Intelligence 29/3 (Fall 1985), published in the CIA‘s in-house journal Studies in Intelligence:
Political trends in Israel in the next 15 years will increase the likelihood that the Israelis will deal with this Arab demographic problem by "exporting" a substantial part of it to Jordan. Israeli politics will become increasingly polarized between the Sephardis and the Ashkenazis, with both the Likud bloc and the Labor alignment growing more and more "ethnic." The prospective erosion of Labor strength and the rise of the Nationalist-Religious bloc will strengthen advocates of encouraging the emigration of West Bank and Gaza Arabs to Jordan. A majority of Israelis in the next decade will come to view Palestinian predominance in Jordan as an appropriate "solution" on the ground, as Foreign Minister Shamir has put it, that "Jordan and Palestine are identical and Jordanians and Palestinians are one and the same."
The influx of West Bank and Gaza Palestinians into Jordan—either voluntarily or under Israeli pressure—will produce an internal crisis that will lead to civil strife and the downfall of the Hashemite dynasty before the end of the century. The 1.1 million Palestinians in Jordan already comprise 60 to 70 percent of the kingdom's population, and the arrival of hundreds of thousands more will tilt the balance decisively against the traditional Jordanian clans and Bedouin tribes which form the real base of King Hussein's power. The advent of a Palestinian government in Jordan dominated by the contemporary equivalent of the PLO will begin a new phase in the long war of succession to the British Mandate in Palestine. Israeli governments will have little choice but to conduct an aggressive strategy of coercive diplomacy in dealing with the new regime in Amman. The Israelis will respond to Palestinian subversion in the West Bank by greatly expanding Jewish settlements, expelling large numbers of the Arab population, and extending Israeli law and administration to the occupied territories. Repercussions from these events will bring the process of Arab accommodation to Israel's power and permanence to a halt for a decade or more, but an eventual truce between a Palestinian Jordan and Israel will open the way for the consolidation of a new regional order. The Palestinian question finally will have been resolved, and the emergence of a genuine inter-state system in the Arab world free of the disruptive grievances of stateless Palestinians will dissolve the barriers to a modus vivendi.
I published a potential strategy for executing the Jordanian option in Talkback #61 entitled ―TIME is the key to a Jordanian option‖ in Yoel Meltzer, Thank you, Tom Friedman, Ynetnews.com, Dec. 13, 2010, which I shall quote as is, with additional inserts as indicated:
I retain rights to this and all my Talkbacks. Michael in #40 asks how Jordan will accept a Jordan option to a Palestinian state? THE ANSWER IS TIME. If Israel made it a strategic goal to make Jordan the solution to a Palestinian state as Ariel Sharon himself at one time advocated [Insert: the MFA too advocated this policy before Oslo according to private e-mails from Dr. Yoram Shifftan], I posit it could be accomplished in a step-by-step process over time. [Insert: Just as we have attempted to pursue the current peace progress over a long time.] [I am not a policy analyst but here is an outline for Talbackers to critique. This took a long time to develop and is not a simple Talkback.]
FIRST STEP would be to foreclose a Palestinian state by, for example, annexing Area C in Judea and Samaria as advocated by MK Tzipi Hotovely, which does not upset the demographic balance in Israel and is in Israel's security interest since it contains the sensitive Jordan Valley. [Insert: If annexing Area C will not foreclose a Palestinian state, then annex Area B as well.] This is an appropriate response to PA efforts to solicit unilateral recognition of a Palestinian state by Brazil and other states, which is grounds for Israel voiding Oslo.
SECOND STEP is that Israel would allow the Palestinians to have some form of limited autonomy. There is no international law that Israel must give automatic Israeli citizenship to Palestinians, as pointed out by attorneys who have researched this subject. [Insert: ―It is a general principle of international law, agreed upon by numerous authorities, that nationality is a matter reserved solely for domestic law of a sovereign state. ‗It has long been conceded that it is the prerogative of each state to determine for itself and according to its own constitution and laws what classes of persons shall be entitled to its citizenship.‘‖ Marc Zell & Sonia Shnyder, Palestinian Right of Return or Strategic Weapon?, 8 Nexus J. Op. 77, 100. As mentioned above though, granting citizenship to the Palestinian Arabs might eventually be legally required under the San Remo Resolution, but I argue it does not have to be immediate, without first setting up the proper conditions. See Benjamin Akzin, The Palestine Mandate in Practice, 25 Iowa L. Rev. 32, 58 (1939-1940), quoted supra; Petition for Order Nisi, HCJ 3414/96 Weiss v. Government of Israel (―Any plan to make Palestine a functioning democracy during those early years of the Mandate, based on universal suffrage ran absolutely counter to the idea of making Palestine a Jewish State.‖).]
THIRD STEP would be for Israel to advocate the full democratization of Jordan while retaining an Islamic character. Every time a Palestinian state is mentioned by the international community, Israel would shift the debate to Jordan – for how can a Palestinian state be advocated in the West Bank when Palestinians who make-up the majority of Jordan do not have full democratic expression just over the border. I argue the world could not afford to treat Israel as a pariah for rejecting a Palestinian state as long as Israel justifies all its actions through the same standards of international law as any other country, and plus the world depends on Israel as a technological and Mid East powerhouse. Having the American public behind Israel would also prevent Israel from becoming a pariah, and Obama losing in 2012 due to a bad economy [Insert: = unemployment rate expected to still be high] would be possibly helpful in preventing America from pressuring Israel further.
FOURTH STEP would be for Israel to continue to push the Jordanian option hard, but if in the meantime a better solution presents itself such as encouraging a gradual emigration of a large portion of the Palestinians to Western countries through the establishment of a national fund comparable to the JNF [Insert: I believe polls show about 40% of Palestinian Arab would want to emigrate to the West], or giving the Palestinians Israeli citizenship, then Israel should pursue those options. Israel could also start a development program to give away annexed state land in Judea and Samaria for free to Diaspora Jews who agree to live on the land for a given period of time in order to encourage a new wave of aliyah from Western countries. [Insert: Inducements are legal. See Ted Belman, The Truth About ―the Occupation‖ and ―the Settlements,‖ IsraPundit.com, Aug. 31, 2010, http://www.israpundit.com/archives/27051.]
THE FIFTH STEP, it will be the Palestinians in the end to decide if they still want a Palestinian state, and Jordan at that time will be their only option. Israel would use the national fund mentioned above to compensate them if they want to move to Jordan or Israel could consider allowing the Palestinians to vote in Jordan through the Israeli postal service, aka. the Benny Elon Plan. Israel has a large GDP so compensation should be doable over time.
The other plan I currently favor is plan xviii. above, regarding giving both Diaspora Jews and Arabs in Judea, Samaria, and Gaza the right to vote after annexation. Let me quote from my e- mail to Mr. Salomon Benzimra and Mr. Michael Zebulon on the subject, which was originally omitted from the e-mail package Bernice forwarded you Mr. Brand:
First, for the small legislation fix: The second proviso in the San Remo Resolution states: "[i]t being clearly understood that nothing shall be done which may prejudice . . . the rights and political status enjoyed by Jews in any other country." I was reading a book on the Jewish heritage the other day and I came across this interesting statement from the Talmud: "The Sanhedrin has jurisdiction within the Land and outside it." This led me on a new train of thought: what if all Jews in the world were given the chance to vote for the modern Knesset with or without citizenship. Since this is done on a voluntary basis it would not seem to violate the second proviso in the San Remo Resolution, and in fact the second proviso would seem to protect the rights and political status of the Jews who did. [Benjamin Akzin, The Palestine Mandate in Practice, 25 Iowa L. Rev. 32, 55 (1939-1940) (“[T]his part of the Declaration [the second proviso] may have been also meant as addressed to third States, especially to the States that were to be asked to assent to a special protection of their minorities, in an effort to preclude their using the establishment of a Jewish National Home in Palestine as an excuse to prejudice the rights and status of the Jewish minority.”). (ed. E.M.)]
. . . . .
I cannot claim credit for coming up with this solution to give Jews the world-over voting rights for the Knesset in Israel. Balfour himself stated as a hypothetical, though at that time it was technolog[ically] unfeasible [from Att. Howard Grief’s book]: "To those who argued that the fate of Palestine should be decided by a Plebiscite, in which case the Arabs would have an overwhelming majority, he would reply that in any Palestine Plebiscite, the Jews of the world must be consulted; in which case he sincerely believed that an overwhelming majority would declare for Zionism . . . ."
As for the practically of this solution, first let me cite a possible precedent for allowing non- citizens to vote in a country's elections [the following information is from Wikipedia]. In the election of the current Pope who is the head of state of Vatican City, which is a sovereign state, 11 cardinals from Canada and the United States voted (123 cardinals in total were in the papal conclave). I could not find if the cardinals were given citizenship prior to the vote but citizenship from Vatican City is in-and-of-itself interesting. Wikipedia writes: "Unlike citizenship of other states, which is based either on jus sanguinis (birth from a citizen, even outside the state's territory) or on jus soli (birth within the territory of the state), citizenship of Vatican City is granted jus officii, namely on the grounds of appointment to work in a certain capacity in the service of the Holy See. It usually ceases upon cessation of the appointment. Citizenship is extended also to the spouse, parents and descendants of a citizen, provided they are living with the person who is a citizen." As of December 31, 2005, Vatican City has 558 people with Vatican citizenship, and 246 residents in the state without citizenship. Therefore, if citizenship is found to be necessary for voting in Knesset elections, then an appropriate law could simply stipulate that while in the act of voting Diaspora Jews are Israeli citizens which vanishes once the ballot is cast.
Two objections can be raised. Is the scale of this project technologically feasible, and would it be wise to do so? Regarding the first point, if you have not noticed, Israel is a high-tech powerhouse, innovator, and entrepreneurial engine, second only to the United States in per- capita ranking (read about it in Start-Up Nation and The Israel Test). The greatest minds and companies are stationed in Israel. That they could not find a cost-effective way to contact every Jew in the world, and develop reliable and secure voting methods, cannot be doubted. In fact with the advent of cell phones, computers, and the internet (which incidentally Jews had a pivotal role in helping develop – see The Israel-Test) makes us uniquely positioned to pull off such a technical feat. To facilitate it voting day could be extended to voting week or voting month.
Regarding the wisdom of allowing Jews world-wide the right to vote for the Knesset, several points can be raised. First question: Are not most Diaspora Jews apathetic regarding the plight of Israel? Answer: Yes, just as some Israeli residents are apathetic regarding the government. Diaspora Jews are apathetic but they are not evil. Given the choice of spending just 10 minutes to vote for the Knesset once every four years on the one hand, and not voting and thus being the direct cause of Israel's demise on the other hand, I submit that there would be a very high participation rate. Second question: Can Diaspora Jews be trusted? Answer: Do you trust Israel's security more to a Palestinian state or to your own people? Third question: But Diaspora Jews do not serve in the IDF? So. Neither do Israeli Arabs nor elderly olim, not to mention the Haredim, though there has recently been huge growth in the percentage of Haredim enlisting. Fourth question: would not a numerically large number of Arabs in Israel be dangerous? Answer: The IDF is one of the best fighting forces in the world, and once the peace process ends, it can be unleashed [against legitimate military targets who have previously been sheltered by Israel such as ―political leaders‖ who provide material support to terrorists (ed. E.M.)] to finally eliminate the terrorist networks. Also, since Jews would be a voting majority, sensible laws to protect the populace can be passed at any point, such as forbidding people who do not serve in the IDF to own a firearm. Fifth question: But we do not want to rule over another people? Answer: Minorities exist in every country. Nobody wants to be a minority but Israel was established in the San Remo Conference as a Jewish country in all of Palestine. You have no qualms about ruling over the Israeli Arabs. . . . Sixth question: I am in Likud, most Jews in the United States are liberal, so would vote Labor, so do I really want them? Answer: Wipe that thought from your head. It is groundless hatred. Does Israel reject olim because they would be a financial burden or have a different political orientation? Absolutely not. [Seventh question: But Jews in the Diaspora do not pay taxes, so they should not have representation? I believe Israel recently passed or considered passing an ex-patriots law, and ex-pats do not pay taxes either. There is also a lot of tax evasion by Israeli Arabs but they get to vote. Actually, in the eyes of Jewish law, some Diaspora Jews theoretically do pay taxes, i.e. they would pay a half-shekel annual tax, but since they cannot do it due to force majeure that Halchically bars them, it is my understanding that as long as they have the intent, they are accorded as if they did it.]
There are also tangential benefits with this proposal: It will ultimately increase the bonds between Israel and the Diaspora; having a more powerful connection with the Diaspora who can petition their respective governments will make Israel more secure and independent.
To tie up one loose-end, as it applies to Diaspora Jews that do not have permanent Israeli citizenship, only they and not their gentile spouses would be permitted to vote for the Knesset (intermarriage is a problem in the Diaspora). The logic for this is sound. The San Remo Resolution did not accord non-Jews not living in Palestine electoral rights, as the Jewish people are the "Most-Favoured Nation in Palestine" in the words of Balfour. So now that you have heard this proposal Michael and Salomon, is it any good? How do we move beyond words and get Knesset Members to actually consider the above proposal if it is truly meritorious?
Moshe Feiglin supports giving Diaspora Jewry the right to vote. See http://jewishleadership.blogspot.com/2009/11/voting-rights-for-israeli-expatriates.html Political scientist Prof. Paul Eidelberg on the other hand inserted into his tentative, draft constitution: ―No person shall vote in any national election unless he has been a resident of Israel for one year.‖ Paul Eidelberg, Jewish Statesmanship: Lest Israel Fall 224 (University Press of America, Inc. 2002).
Since writing the above e-mail, I thought of three practical problems and a way to resolve them: First problem, with the larger number of Israeli Arabs in Israel once Judea, Samaria, and Gaza are annexed, would not they have a decisive influence on the primaries of Jewish parties and thus influence the direction of the country? Solution: The legislative fix would mandate that primaries and general elections be held at the exact same time, and all parties would we be required to facilitate non-Israeli voting in their primaries.
Second problem, how can there be accountability of politicians for their decisions, as needed for good government, if voters are outside the country and not properly informed? Solution: The legislative fix would create a "buddy system." Each person in Israel will be randomly paired with a Jew outside of Israel who shares the same language. But in no case can an individual Israeli be paired with more than two (or some other small number of) Jews outside of Israel. All Israelis who are eligible to serve in the IDF would be required to participate as a form of national service. Here is how the buddy system would work: On a totally voluntary basis, through the same secure voting system technology, Jews outside of Israel can place a request to their "buddy" in Israel and the "buddy" would be required to respond within a designated timeframe. Whenever possible, it should be done through in a one-on-one phone conservation. Besides a possible generic time limit, no limitations are placed on what can be discussed, and records of the conversation are to be permanently erased after the election and are not accessible to the government at any time. Also, through the same mechanism used in the same secure voting system, the voters outside Israel during and prior to the vote would be given reliable information on parties and candidates, as well as access to public search engines as a secondary source of information.
Third problem, Israel recently passed a referendum law that gives citizens the right to vote by simple majority to cede sovereign territory. It would be illogical for Diaspora Jews to have the right to vote to cede land, when this is the reason they are being given voting rights to begin with. Therefore, the referendum law would need to be modified either to apply exclusively to Jews living in Israel just as during the Mandate period the Legislative Council could not repeal the right of return, to require a supermajority such as 90% and give everyone the right to vote in it, or to repeal the law and amend penal law clarifying that government officials cannot cede land.
These are all-off-the-top-of-my-head answers. I will need time to read and digest your post and all its attachments and perhaps then I can offer a reply in which you can have greater confidence.
8. My late wife and I were in the middle of our graduating class at Harvard. I never intended to practice law. I went to Harvard to become acquainted with the East Coast, having grown up in Southern California. I had a little money left over in the GI bill after returning from Korea. I did not use my best efforts to study while there and I do not claim to have superior legal skills. But I did win my wife who was one of only 5 women in the class of 1957, just 4 or 5 years after the Harvard Law School first admitted women so I am quite pleased with my Harvard experience. She and my six children are my greatest joy. My oldest daughter who is on the executive board of a large law firm has legal skills far better than mine. I think that for a law review article, you would want someone who has those skills as well as an interest in the subject matter because a proper understanding will take many hours of historical as well as legal research. I am not hinting that my daughter should do this because she is involved in litigation, management of her 1000 lawyer firm, and raising three daughters.
[SUPPLEMENT: 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.]
A. You state: ―I never intended to practice law. I went to Harvard to become acquainted with the East Coast . . . .‖:
1. I have generally been impressed with your legal skills, especially for someone 80 years of age! Your deficits turned into positives, because it made me research this backgrounder that much harder. I found a kernel of wisdom in much of what you have said, and you obviously outstrip me in general law principles.
2. Perhaps you were attracted to the East Coast because it is closest to Israel facing east, and the same waters theoretically lap the shores of Israel. Moses was your age when he would have entered Israel had Israel not sinned. Instead he wandered the desert and only entered Israel after his death, when the East Bank gained the status as the Land of Israel after the conquest of the Western Bank. See Book of Joshua.
B. You state: ―My oldest daughter who is on the executive board of a large law firm has legal skills far better than mine. I think that for a law review article, you would want someone who has those skills as well as an interest in the subject matter because a proper understanding will take many hours of historical as well as legal research. I am not hinting that my daughter should do this because she is involved in litigation, management of her 1000 lawyer firm, and raising three daughters.‖
1. It is hard for me personally to find people with the criteria you set forth. The problem is people with an interest in this area are ―isolated islands‖ or have other obligations. I asked Ted Belman to do a scholarly article three years ago about, inter alia, the U.S. violation of the Anglo- American Convention, without which, possibly hundreds of thousands of Jews could have been saved in the Holocaust with Palestine as their only lifeboat. The next person I find may be 83 years old! Most every article I have read by a modern author in this area, the article either is full of errors or not creative enough. That is why I gravitated to your article. Therefore, no matter who authors a proposed law journal article (I realize you cannot), I would like you to avail yourself to provide some manner of assistance should the author be desirous of it and your health is up to it. Your responses might already have assisted, and should the author find some of your opinions meritorious, she or he should acknowledge your contribution in the article. If anything I have written in this backgrounder proves to be of assistance, I would be more than happy to be acknowledged as ―E.M.‖ in the footnote.
In regards to the real need to do this proposed law journal article, JPost.com and INN points out that Fayyad, despite what INN originally reported, still hopes to have Palestine recognized by August 2011 and is building for a state. I argue that the proposed law article should have a three- fold goal: to introduce Jewish National Rights to the U.S. scholarly community, to propose alternative(s) to a 2-state solution, and to increase public awareness to help deter Obama from unilaterally recognizing a Palestinian state. I believe Att. Howard Grief's original thesis has not caught on [I believe three jurists have cited his book so far, not including Ted Belman], because it is not fully accurate and there is a strong need to reconcile Dr. Gauthier and Att. Grief's opinions. JCPA published two studies in the past 4 months that highlight the San Remo Resolution, so the San Remo Resolution is definitely a real and burgeoning issue. Now is the time to jump on this article because I might have the next 4 months to dedicate full time (bli neder) to helping out with the article should the prospective author ask, while I am waiting for credentials so I can get stable employment.
2. Not to exclude any other brilliant mind, let me put one name forward who I believe has the skills and creativity to do the law journal piece. It is Professor Malvina Halberstam. I might have sent you a list of her works that have bearing on Israel, which I had compiled a while back when I had a website. She has touched on Jewish national rights in law journal articles in the past and has even proposed creative alternatives to the 2-state solution.
3. Mr. Salomon Benzimra
9. [SUPPLEMENT: Now lets look at the British Mandate or trusteeship. Great Britain was the trustee. The Jews were the beneficiaries. It is not clear whether these beneficiaries were only the Jews in Palestine or the entire group of jews throughout the diaspora. The trust res was the political rights to Palestine – the right to Jewish self determination and sovereignty.]
A. It seems to me the entire Jewish people are the beneficiary. Here is some of the evidence available:
1. Textually, the San Remo Resolution states ―establishment in Palestine of a national home for the Jewish people,‖ not ―national home for the Jewish people in Palestine.‖
2. This seems purposeful on logical grounds because large-scale Jewish people was the only way to create the Jewish National Home. As mentioned above, when putting forward the Mandates system in Jan Christiaan Smuts, The League of Nations—A Practical Suggestion (1918): ―[G]eneral Smuts wanted the Zionists in Palestine.‖
3. Recital 3 of the Preamble of the Palestine Mandate states: ―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.‖ There is no qualification in either part of that recital that it only applied to the Jews in Palestine. It would be illogical to construe the first part of the recital regarding the ―historical connection‖ as applicable only to the Jews in Palestine, and the first part is grammatically connected with the pronoun ―their‖ in the second part of the recital that relates to the Jewish National Home, so it refers to all world Jews without qualification.
4. Prof. Nathan Feinberg provides the following account in See Nathan Feinberg, New Terms Created in Public International Law by the Jewish Question, In the Dispersion, Surveys and Monographs on the Jewish World, (1968), reprinted in Studies in International Law 276-77 (1979):
The Passfield White Paper was published in 1930, and, on the basis of the Shaw Commission Report (1929), recommendations were made in it from which it could be inferred that the Mandatory's undertakings with regard to the national home were towards the Jews resident in Palestine and forming part of its population, rather than towards the Jewish people as a whole. In view of the criticism to which the British Government was subjected on account of these recommendations, which were regarded as a repudiation of the "historical connection" principle endorsed by the Palestine mandate, Prime Minister Ramsay MacDonald deemed it necessary to clarify the Government's position in an official letter to Dr. Chaim Weizmann, Chairman of the Jewish Agency, dated February 13, 1931, in which he stressed that "... the White Paper recognizes that the undertaking of the Mandate is an undertaking to the Jewish people and not only to the Jewish population of Palestine". The White Paper of 1939, in which the British Government, for all practical purposes, emasculated the Palestine mandate by recommending an arbitrary limitation of Jewish immigration to Palestine for the following five years, while subjecting its continuance after that period to Arab consent (which was tantamount to its absolute prohibition), came under grave criticism in the Permanent Mandates Commission. It is significant that, in the course of the discussion of the White Paper, one of the Commission's members (van Asbeck) pointedly remarked that he did not think that "illegal immigration into other countries could be placed wholly on the same footing as 'illegal immigration' of Jews into Palestine. The Jewish illegal immigrants were people whose historical connection with Palestine had been openly recognized".
5. Another piece of evidence is that the San Remo Resolution specifically referred to the ―Balfour Declaration.‖ Mr. Winston Churchill in the debates concerning the 1939 White Paper held in the House of Commons, May 22nd and 23rd, 1939 reprinted in Jewish Agency for Palestine, Documents Relating to the Palestine Problem 54-55 (1945) stated:
To whom was the pledge of the Balfour Declaration made? It was not made to the Jews of Palestine, it was not made to those who were actually living in Palestine. It was made to world Jewry and in particular to the Zionist associations. It was in consequence of and on the basis of this pledge that we received important help in the War, and that after the War we received from the Allied and Associated Powers the Mandate for Palestine. This pledge of a home of refuge, of an asylum, was not made to the Jews in Palestine but to the Jews outside Palestine, to that vast, unhappy mass of scattered, persecuted, wandering Jews whose intense, unchanging, unconquerable desire has been for a National Home—to quote the words to which my right hon. Friend, the Prime Minister, subscribed in the Memorial which he and others sent to us: ". . . the Jewish people who have through centuries of dispersion and persecution patiently awaited the hour of its restoration to its ancestral home."
Those are the words. They were the people outside, not the people in. It is not with the Jews in Palestine that we have now or at any future time to deal, but with world Jewry, with Jews all over the world. That is the pledge which was given, and that is the pledge which we are now asked to break, for how can this pledge be kept, I want to know, if in five years' time the National Home is to be barred and no more Jews are to be allowed in without the permission of the Arabs?
This position was cited with favor in the petition of eminent jurists to the U.N. See Simon H. Rifkind et al., The Basic Equities of the Palestine Problem 24 et seq. (Arno Press Inc. 1977) (1947), available http://books.google.com/books?id=AuBQu7oUWhYC&pg=PA24.
6. President George W. Bush, and Prime Ministers Netanyahu and Olmert have used the phrase "state for the Jewish people." Israel‘s Proclamation of Independence significantly states: ―THE STATE OF ISRAEL will be open for Jewish immigration and for the Ingathering of the Exiles.‖ It also states: ―WE APPEAL to the Jewish people throughout the Diaspora to rally round the Jews of Eretz-Israel in the tasks of immigration and upbuilding and to stand by them in the great struggle for the realization of the age-old dream – the redemption of Israel.‖
7. In regards to U.S. law, it has been argued that giving American Jews special rights violates the equal protection clause of the Constitution. See W.T. Mallison, Jr., Zionist-Israel Juridical Claims to Constitute the Jewish People Nationality Entity and to Confer Membership in It, 32 Geo. Wash. L. Rev. 983, 1065-69, 1075 (1963-1964). Is there a rebuttal to this argument using case law?
10. [Mr. Elon Magill asked:] If a "beneficial interest in sovereignty" is different from "nominal sovereignty," what are the ramifications of the former view regarding whether for instance the transfer of the Golan was legal (see Chapter 2 of Att. Howard Grief's book)?
A. You pretty much overlooked that above question which I originally asked. More properly my question is: under the theory that the Jewish people had a beneficial interest in sovereignty and not actual sovereignty, did Britain with the consent of the League have the authority to make substantive changes to the Mandate? Or would this have been a violation of the San Remo Resolution which you said was an independent, binding agreement? The Mandate was altered in respect to the cession of the Golan. So was that legal? Comparing with trust law, does the trustee have legal authority to give away portions of the trust res in conjunction with the League of Nations? By the way, what role in trust law could it be said the League served as? Read over the lengthy opinions quoted at the end of this law journal article.
B. Another question that might be related is: since the San Remo Resolution was an independent agreement enforceable upon the international community when it achieved League assent, was the memorandum of September 16, 1922 on the application of Article 25, in deeming recitals 2 and 3 of the preamble inapplicable in Transjordan, even if temporary, an illegal action? Cf. Ernst Frankenstein, Justice for My People 106-07 n.34 (1944) ("Article 25 which authorized the non- application of parts of the Mandate, itself forms part of the Mandate and is thus, like the whole Mandate, based upon the preamble. Is it logically admissible to use a clause of a document to suspend or suppress considerations upon which the clause itself is based?").
11. [SUPPLEMENT: I would appreciate any comments you may have on this analysis.]
A. Here is my appraisal of your thesis as you presented it to me:
I am not a lawyer. If your understanding of trust law is correct, then your thesis has merit that the Jewish people had a beneficial interest in sovereignty. You believe Britain as trustee had legal title. Before I read your position, I had dismissed this position because it has been rejected by most jurists that I have read that have examined it, but I am now open to it. Make sure you add though that its legal title was subject to the terms of San Remo Resolution and the Mandate. This is important because analogies to private law only have their generally accepted meaning if they are not modified in the legal compact setting it forth. Great Britain accepted to act ―in conformity with the provisions of Mandate‖ in recital 6 of the preamble of the Mandate. On the other hand, France in the Mandate for Syria merely had to act in ―in accordance with the spirit of the Mandate.‖ Thus, despite, Great Britain‘s legal title under your thesis, it could not presumably give the residents of Palestine British citizenship due to Article 7 of the Mandate. In your thesis you believe the Ottoman Empire lost its sovereignty in signing the Treaty of Sevres. This seems to me to be the least controversial alternative date when Turkey lost sovereignty, but earlier dates should be checked out by an expert. You state that the Ottomans transferred their sovereignty to an unnamed Mandatory, while arguing the Mandate did not go into effect until September 29, 1923. The time-gap seemingly does not conflict with established rules of international law. I do not know why in your view sovereignty was transferred (at least initially) to an unnamed mandatory over the Principal Allied Powers. The latter view is closer to the position taken by the U.S. government. It appears to me that the San Remo Resolution was indeed a binding inter- Allied agreement between four-parties prior to the League assenting to the San Remo agreement, though it might not have been regularized until the Treaty of Sevres, when under your thesis Turkey lost its sovereignty. The San Remo Resolution seems to most clearly have become enforceable upon the rest of the civilized world when the League assented to it, when its substance was inserted into the preamble of the Mandate, as well as the provisos in confirming the Mandate that took into account the Italian reservation in the San Remo Resolution. It must be emphasized the San Remo Resolution was the basis for the Mandate upon which the Mandate Charter had to conform. Preliminary evidence seems to indicate the San Remo Resolution was compatible with Article 22 of the League Covenant, including paragraph 1 of Article 22.
2. Separate from the above appraisal, let me quote every significant mention of the law of trusts I can find in Bernard Joseph, British Rule in Palestine (1948):
―These territories, according to the newly-evolved Mandate System, would be administered by a trustee on behalf of world society. This trustee (the Mandatory Power) would govern and administer the territory, not as a sovereign power imposing its rule by right of conquest, but as a trustee owing a duty to the society of nations which had entrusted the Mandate to the Mandatory and to the people for whose benefit the Mandate was created. The Mandatory nation would be obliged to carry out its duty in accordance with the express terms of the Mandate. It would not be free to act as it pleased, as was previously the case when a conquering nation asserted its rights as conqueror over territory it had annexed.‖ pp.1-2 ―This Mandatory Power, by virtue of the trust conferred upon it, was created to govern and administer the territory, not as a sovereign power imposing its rule upon the territory by virtue of the rights of conquest, but as a trustee owing a duty both to the Powers conferring the Mandate and to those for whose benefit the Mandate was created.‖ p.42 ―This view that the Mandate was in the nature of a trust was never contested by the British Government. As early as 1920, King George V sent a message to the people of Palestine which was publicly delivered in Jerusalem on July 7th of that year by the first High Commissioner for Palestine, Sir Herbert Samuel. In this message King George said: ‗The Allied Powers whose arms were victorious in the late war have entrusted to my country a mandate to watch over the interests of Palestine ... I realize profoundly the solemnity of the trust involved in the government of a country which is sacred alike to Christian, Mohammedan and Jew.‘ / As recently as February, 1947, Foreign Secretary Ernest Bevin announced in these words the decision of Britain to refer the Palestine problem to the United Nations: ‗We intend to place before them [the United Nations] an historical account of the way in which His Majesty's Government have discharged their trust in Palestine over the last twenty-five years.‘‖ p.44 ―A sixth formulation is that there is no state or group of states that is vested with sovereignty over Palestine, in its own or their right. The sovereignty, wheresoever it be vested, is only a trust sovereignty. It is held in trust for whatever future sovereign will emerge if and when the Mandate is carried out.‖ p.48 ―It has been said that a Mandate is in the nature of a trust. However in considering the legal effect in international law of a Mandate, it is not suggested that one can engraft in their entirety the principles and rules forming part of the law of trusts in private law. It is submitted, nevertheless, that the basic rule of the law of trusts is properly applicable in determining the obligation of a Mandatory and the fundamental rights of those for whose benefit the Mandate was primarily intended to serve. / A Mandatory is in the position of a trustee whose first and foremost duty is to fulfill the trust which has been placed in him by those conferring the Mandate according to the terms of the trust deed; and scrupulously to fulfill his duty to the party which in private law would be termed the beneficiary of the trust. The primary purpose of the Palestine Mandate, it is submitted, is to secure the establishment of the Jewish National Home in Palestine; hence, the true beneficiary, in the sense used in the doctrine of trusts, is the Jewish people. / The fact that the Mandatory is in the position of a trustee does not mean that, while fulfilling its obligations toward the beneficiary under the Mandate, it is absolved from the usual responsibility of any government administering a country for the welfare of all its inhabitants and their existing civil and religious rights, and for safeguarding the long established rights of the various religious communities. / On this subject Prof. Norman Bentwich, a former Attorney General of the Palestine Government, has said in his book Mandates System (page 16): / ‗There are two different conceptions of Mandate in that Article which are bound together by the common idea of a trust. The notion of the guardianship of minor nations is emphasized with respect to the territories detached from Turkey. The notion of the conduct of government in a paternal way for the benefit of the native population and in the interest of civilization is emphasized with respect to the territories in Africa and Oceania. In all cases, however, the Mandatory is under definite obligations both to the population and to the League.‘‖ p.51-52 ―[A]s one writer put the matter, ‗the spirit of compromise runs all through the article [22] ... the imperialists got what they wanted and the idealists succeeded in qualifying such grants by providing for securities for the due performance of this trust created.‘‖ p. 53 ―Since the Mandate is an international act similar to a treaty, the same principles apply, making it impossible for one party, particularly the Mandatory or trustee, to repudiate the Mandate by unilateral act. A recent suggestion on behalf of the British Government that the Mandatory has the right by its own decision to lay down its mandate would not appear to conform to the tenets of international law or to the opinion of successive British Governments as outlined above.‖ p. 64 ―Nor would it conform to the accepted principle of law that trusts do not terminate, nor is the trustee relieved of his duties, by reason of the death of the person creating the trust. On the contrary, the very basis of the conception of a trust is that its creator can be certain that the benefits he wishes to confer upon the beneficiary will be enjoyed by the beneficiary. It is to insure this that a trustee is appointed. The very purpose and object of creating the trust would be defeated if the death of the creator of the trust would result in its termination. It is submitted that by analogy the position must be the same in International Law as regards a Mandatory or trustee. Even if the view were taken that the Mandate for Palestine was exercised on behalf of the League of Nations, the demise of that body could not possibly affect the duty of the Mandatory to continue to carry out the Mandate according to its provisions.‖ p. 66 ―The Mandatory has no right to change the Mandate's provisions or to re-interpret them since it is not in the position of the government in a sovereign state. It governs in Palestine only by virtue of the Mandate. At most, the Mandatory would be in the position of a government in a state with a written constitution. It cannot ignore a constitution which can only be amended by the body having power to do so. The Palestine Mandate gives the Mandatory no such power. Article 27 provides otherwise. Actually, the Mandatory is in a still weaker position in this respect, since, as already stated, it holds a trusteeship and must respect the terms of the trust, and patently cannot vary those terms or ‗interpret‘ them from time to time so as to alter their meaning and effect.‖ p. 94-95 ―This duty creates a corresponding right for the Jewish people, entitling them to require the Mandatory to fulfill its duty. This is in accord with the principles of the English law of trusts, by which a beneficiary under a trust is entitled to require the trustee to fulfill the terms of the trust in the beneficiary's favor. It is submitted that the conception of the Mandate in international law is of a similar nature and that the same principle applies. / This view was unquestionably held by the Permanent Mandates Com-mission of the League. It regularly received, examined and considered memoranda submitted on behalf of the Jewish people by the Jewish Agency for Palestine, designed to draw attention to the failure of the Mandatory to implement the terms of the Mandate in favor of the Jews. / His Majesty's Government also, apparently, was of the same opinion, since these memoranda were usually submitted to the Permanent Mandates Commission through the good offices of His Majesty's Government, which invariably forwarded them to the League without in any way questioning the right of the Jews to make representations in this manner to ensure that the Mandatory duly implemented his duties. / It is also significant that in a note of the Principal Allied Powers to the German Delegate to the Peace Conference, dated June 16, 1919, the following passage occurs: —‘The Mandatory Powers insofar as they may be appointed trustees by the League of Nations would derive no benefit from such trusteeship.‘‖ p. 98 ―In concluding, one must point to the right which the Mandate did not confer upon the Jewish people. This would seem to have been a serious defect in the terms of the Mandate. The Jewish people were not accorded the right, given to members of the League by Article 26 of the Mandate, to challenge the Mandatory's interpretation or application of the provisions of the Mandate, before a Court of International Justice. The Jews had to content themselves with submitting a plea in writing to the Permanent Mandates Commission. The lack of this right to appear as a claimant before a Court of Law, a right accorded a beneficiary against his trustee in private law, has not only been a serious drawback to the Jews. It has withheld one of the most effective methods of insuring that the Mandate would be properly implemented. It has subsequently made it possible for the Mandatory to ignore his duties, as the Permanent Mandates Commission found on various occasions.‖ p. 106 ―The Arab contention that any reference in the Preamble of the Mandate to Article 22 of the League Covenant was intended to confer certain rights upon them has already been dealt with. It is hoped that the point has been successfully made that even if paragraph 4 of Article 22 of the Covenant can be imported into the Mandate by the general reference to Article 22 in the first Recital of the Preamble, this reference must be read together with the specific provisions of the Mandate itself; and that it could do nothing more than imply the general proposition that the well-being and development of the inhabitants of the mandated area form a sacred trust of civilization.‖ p. 108 ―That the British authorities had no power to confer such a right upon the Arab States follows from the legal principle delegates non potest delegare. The Mandatory, being himself a trustee or agent acting on behalf of principals (the Principal Allied Powers) who appointed him, cannot delegate his powers to others. A fortiori, he cannot do this when the effect would be to give them power, not to carry out the Mandatory's duty, but to defeat it as, for example, by their vetoing or restricting Jewish immigration and close settlement on the land both of which the Mandatory has a duty to encourage and facilitate.‖ p. 121
2. Read the section entitled ―1. Contesting the Assertion of a Pre-Existing Palestinian Statehood from the Time of the British Mandate‖ in Dore Gold, Averting Palestinian Unilateralism 11-17 (2010), http://www.jcpa.org/text/Palestinian_State_ICC.pdf. He shares some of your opinions and mentions the San Remo decision, but it is too abbreviated and ignores the nuance brought forth in this background.
3. Here are the reasons other jurists have rejected the thesis that sovereignty was vested in Britain. I have only read a small selection of the articles on the situs of sovereignty in mandated or trust territories, perhaps 12 (reading more sources perhaps would be appropriate for the proposed law journal article). Here are extracts from some of these ones [I did not double-check the following extracts for transcription errors]: i. Donald S. Leeper, Comment, International Law – Trusteeship Compared with Mandate, 49 Mich. L. Rev. 1199, 1204-07 & n.42 (1950-1951):
The refusal of the Union of South Africa to put South-West Africa under a trusteeship has again brought to the forefront a question which has puzzled the courts and legal theorists since the inception of the mandate system and which will arise in connection with trust territories. No definitive answer has ever been given to the question of sovereignty over mandated territories but a survey of the various theories advanced will be helpful in determining sovereignty over trust territory. No answer is provided either in the Covenant or in the Charter. Four main theories as to sovereignty over mandated territory have been advanced, namely, that it resides in the Allied and Associated Powers, in the League of Nations, in the native inhabitants, or in the mandatory subject to the provisions of the mandate. / The United States was the primary proponent of the view that sovereignty resided in the Allied and Associated Powers since it felt that it still had some vestigial interest in the nonself-governing territories despite the fact that it was not a member of the League of Nations. Reliance was placed upon various provisions of the Treaty of Versailles concerning renunciation by Germany of sovereignty and selection of mandatories by the Allied and Associated Powers. This position was denied by the commentators, the courts." and the Permanent Mandates Commission, and it was argued that even if it was admitted that the Allied and Associated Powers did have sovereignty at one time it was subsequently surrendered by the placing of the territories under the mandate system." In the face of such militant opposition the United States had not insisted on its position. All doubts as to the invalidity of this theory have been removed by the attitude of the formulators of the Charter and those who have applied for trusteeships./ A second line of authorities took the position that sovereignty resided in the League of Nations with the mandatories merely acting as agents of the League for the purposes of administration and pointed to the wording of the Covenant and the theory of mandatum found in Roman Law as supporting it. The League declined to determine where sovereignty did lie but it is significant that it did not claim sovereignty for itself. Further doubts were raised as to the validity of this position by the resolution winding up the affairs of the League wherein it was recognized that the League had no interest in mandated territories, and when the assets of the League were listed by United Nations officials no rights of the League in mandated territories were included." It is obvious that if the League had no sovereignty over mandated territories, then the United Nations has none. It has not been claimed that the United Nations has any sovereignty over trusteeship territories."' / A third theory put forth was that sovereignty over mandated territory rested in the native inhabitants of the territories in view of the primary objective of the mandate system to prepare such territories for self- government. There is a legitimate basis for argument when applying this to "A" mandates since the mandatory has no direct powers of administration, but it is rather difficult to apply it to "B" and "C" mandated territories because the inhabitants of such territories had little or no voice in the government. The basic objectives of the trusteeship system appear to bolster the validity of this theory in its application to trust territories. / Another position taken was that sovereignty resides in the mandatory subject only to the provisions of the mandate.[42] Various provisions of the Covenant and the Mandates are cited in support of this proposition. It has been held, however, in a number of cases, that the natives of mandated territories do not become citizens of the mandatories and all of the mandatories, with the exception of the Union of South Africa, have expressly disclaimed sovereignty over mandated territory. The International Court of Justice expressly negatived the existence of any sovereignty of the Union over the Territory of South-West Africa even though the League had passed out of existence. From the status of the question of "states directly concerned," and the express inclusion of mandatories, it appears that the mandatory does have the paramount interest even though sovereignty may not be attributed to it. Various combinations of the main theories as well as other minor positions have been advocated by various authorities. One is that sovereignty is divided between the League and the mandatory, the two holding the total sovereignty. Another is that the mandatory can exercise the attributes of sovereignty, subject to the terms of the mandate, but sovereignty itself is in suspense during the period of the mandate. It has even been held by some German courts that Germany retained sovereignty over the territories taken from it and placed under mandates. Several authorities have taken the position that the concept of sovereignty is inapplicable to mandated territories.‖ / … / ―[41] Hall, '"The Trusteeship System," 24 BRIT. Y.B. INT. L. 54 (1947). / 42 Id. at 54-55; KEITH, THE GOVERNMENTS OF THE BRITISH EMPIRE 18 (1935); KENNEDY AND SCHLEOSBERG, TTHE LAW AND CUSTOM OF THE SOUTH AFRICAN, CONSTITUTION 516 (1935); Rolin, "Le Systeme des Mandats coloniaux," 1 REVUE DE DROIT INTERNATIONAL ET DE LEGISLATION COMPAREE, TROISIEME SERIE SEINE 351 (1920); LOGAN, THE OPERATION OF THE MANDATE SYSTEM IN AFRICA (1919-27) 11 (1942); Rex v. Christian, [1924] S. Af. L.R. (App. Div.) 101; Tagaloa v. Inspector of Police, [1927] N.Z.L.R. 883; Nelson v. Braisby, [1934] N.Z.L.R. 559; Jerusalem-Jaffa District Governor v. Suleiman Murra, [1926] A. C. (Privy Council) 321; Pablo Najera (of the Lebanon) Case, (1927-28) ANN. DIG. No. 30, 52; Rex v. Offen, [1935] S. Af. L.R. (App. Div.). 4; Cape Law Society v. Van Aardt, (1925-26) ANN. DIG. No. 30, 43; State Succession (Windhuk in South West Africa) Case No. 55, (1925-26) ANN. DIG. 75. Contra, HOL.COMBE, DEPENDENT AREAS IN THE POST-WAR WORLD 63 (1941); JOSEPH, BRITISH RULE IN PALESTINE 47-48 (1948); Evatt, ThE Brasri DoMiINIONS AS MANDATORIES 10 (1935); Hales, "The Creation and Application of the Mandate System," 25 TRANSACTIONS OF THE GROTIUS SOCIETY 191 (1939); Wright, "Sovereignty of the Mandates," 17 Amr. J. INT. L. 698 (1923); 3 MONTHLY SUMMARY OF THE LEAGUE OF NATIONS 82 (1923); Alta Corte de Justicia de Uruguay, (1927-28) ANN. DIG. No. 27, 47; Ffrost v. Stevenson, 58 Commonwealth L.R. 528 (1937).
ii. Alan Levine, The Status of Sovereignty in East Jerusalem and the West Bank, 5 N.Y.U. J. Int‘l L. & Pol. 485, 489-92 (1972):
[T]he starting point for any modern discussion, and perhaps the source of confusion, is the renunciation of rights by Turkey and the simultaneous devolution of mandatory authority upon Great Britain. As unambiguous as Turkey's sovereign status is prior to 1923, her successor-in-interest has yet to be conclusively determined. At least four approaches have been presented as to the status of sovereignty during the Mandate period: (1) the sovereignty resided in the Council with the Mandatory authority acting as agent for the Council; (2) the grant of the Mandate to Great Britain transferred sovereignty in Palestine to the Mandatory power, subject to the provisions of the Mandate; (3) the sovereignty remained with the native inhabitants of the territory when Turkey renounced its rights in the area; (4) the sovereignty remained suspended during the Mandate period. / Inasmuch as the Council had plenary authority to determine the Mandate, it is arguable that the sovereignty stayed with the Council the Mandatory power acting merely as an agent of the Council. When the Council's existence terminated, it recognized the United Nations' interest, with the respective mandatory authority, in the realization of self-government for each of the mandates. Sovereignty, the argument continues, would have devolved upon the new international body. This approach lacks validity, however, as the Council neither claimed sovereignty for itself, nor conveyed in a formal agreement any facsimile thereof to the United Nations./ Although the native inhabitants of the region did not become citizens of the Mandatory power, and the mandatories had expressly disclaimed sovereignty over the respective mandate, one may suggest that the sovereignty lay in the particular mandatory, subject to the provisions of the mandate. Article II of the Mandate entrusted Great Britain with safeguarding the civil and religious rights of the inhabitants of Palestine irrespective of race and religion. In 1923, an Order in Council, issued by the British Government, authorized the High Commissioner in Palestine to promulgate such ordinances as were necessary for the peace, good order, and government of the country and were not inconsistent with the Mandate. Article 46 of an initial Order in Council fixed the law to be applied to the territory, incorporating English common law and equity into the laws of Palestine and into the ancient religious laws. It is therefore evident that Great Britain exercised many attributes of judicial and legislative sovereignty. / Alternatively, sovereignty may have rested with the native inhabitants of the specific territories. As the primary objective of the mandate system was to prepare the non-self-governing territories for self-government, one may argue that once that goal of self- government was realized, the sovereignty vested in the people of the territory so recognized. The argument vesting sovereignty in the people is advanced by the Council's recognition of this area as an "A" Mandate (i.e. prepared for provisional recognition). To the extent the ultimate self-governing state lacks the stature of a government fully representative of those native inhabitants, or fails to integrate those inhabitants into the Government, it may militate against this proposition. Nevertheless, in light of the principles of the Mandate system, it would be incongruous to conclude that the sovereignty was otherwise transferred to some third party at the granting of the Mandate. / A fourth approach to the sovereignty issue suggests that the sovereignty remained suspended during the Mandate period. Proponents of this view regard the mandate system generally as alien to the traditional concepts of sovereignty. While the sovereignty is unoccupied or vacant during that period, the proposition does not preclude the vesting of sovereign rights to a proper party following the Mandate's termination. Furthermore, as distinguished from other notions of sovereignty which provided for the passage of title to some third party, this approach neither defeats the Council's objective of self-government for the area, nor eliminates another state's opportunity at some future time to assert a valid claim to title. / Of these approaches, only the latter two retain any validity. If one were to accept the proposition that the Council at one time possessed sovereignty, and successfully transferred it to the United Nations, any claim the United Nations could have asserted terminated with the Mandate. While Great Britain exercised many attributes of sovereignty, its claim similarly would have terminated with the Mandate. Even more important, with respect to both Great Britain and the United Nations, there was no conveyance of sovereignty to another party, although the United Nations attempted to arrange an appropriate political solution. On the other hand, a position that Great Britain, as the agent of the Council and then the United Nations, was limited to safeguarding civil and religious rights would be most compatible with either the proposition that the inhabitants retained the potential for primary authority, or the proposition that the sovereignty remained suspended during the Mandate period. / Under any approach to the status of the sovereignty during that period, it is fundamental that to leave the territory subject to acquisition by some foreign power following the termination of the Mandate would frustrate the policy of preparing the area for self-government. . . . iii. Francis B. Sayre, Legal Problems Arising from the United Nations Trusteeship System, 42 American Journal of International Law 263, 269-71 (1948).:
―(1) Title in the Principal Allied and Associated Powers. [omitted, quoted from supra] . . . / (2) Title in the League of Nations. There is no treaty provision which specifically vests title to any of the mandated territories in the League of Nations. Those supporting this view, however, point to the clause in the preamble of the mandates which refers to the exercise of the mandate by the Mandatory Power "on behalf of the League of Nations." Others have based their arguments on the general responsibilities of the League of Nations with respect to the mandates system. / (3) Title in the Mandatory Powers. The one point in this highly controversial question of title on which there was almost unanimous agreement was that title does not reside in the Mandatory Powers. Article 22 of the League Covenant provided that territories of the "A" mandate category "could be best administered under the laws of the Mandatory as integral portions of its territory" and thus afforded perhaps some slight color to the claim of title in the "C" Mandatory Powers. However, the clear view of the organs of the League of Nations concerned with Mandates – the Permanent Mandates Commission and the League Council – was that sovereignty, even as regards the "C" Mandates, did not reside with the Mandatory Powers."" Japan, formerly one of the "C" Mandatory Powers, also declared in unequivocal terms that the Japanese Government "have never entertained the view that those islands (mandated to Japan) are Japanese territory." / (4) Title in the Inhabitants of the Mandated Territories. This theory rests upon the general argument that sovereignty over any territory rests in the inhabitants of the territory. This conception rests upon a somewhat different meaning attributed to the word, sovereignty. The three preceding theories refer to sovereignty in the sense of a state or body having the right to dispose of the territory. The conception that sovereignty is located in the people of the mandated territories, on the other hand, refers perhaps more to the ultimate location of political authority over the territory. While such a theory might be plausibly applied to the "A" mandates, described by Article 22 of the Covenant as having "reached a stage of development where their existence as independent nations may be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone," it was clearly inapplicable to the "B" and "C" mandates. / When the trusteeship system was established and ten of the mandated territories placed under trusteeship, the question of exactly where sovereignty over the former mandated territories now rests received little clarification. In order to place the former mandated territories under a new system of international supervision the method adopted was chosen with a view to avoiding this controversial and trouble-making question. It was decided at the San Francisco Conference that territories should be placed under trusteeship by means of separate trusteeship agreements drawn up by the "states directly concerned" and approved by the General Assembly or the Security Council. The phrase "states directly concerned" was perhaps a bow in the direction of sovereignty; but since the expression was capable of very diverse interpretations, no further light was thrown on the question of where sovereignty rests. / Thus far, of the three groups referred to in Article 77(1) of the Charter, only former mandated territories have been placed under the trusteeship system. The question of sovereignty over these territories remains fluid. / In spite of the unsolved question of exactly where sovereignty over mandated territories and over trust territories rests, there is general agreement with respect to certain aspects of the question. In the first place, there seems to be general concurrence with respect to the present trust territories, as there was with respect to mandated territories, that wherever sovereignty does rest it is not with the administering power. This view has been reinforced by statements of the United States, the United Kingdom and Australia as administering authorities of trust territories. Each of these has stated on separate occasions that it does not regard its administration of the trust territory as implying any claim of sovereignty. / In the second place, little now is heard of the theory that sovereignty over the mandated territories resided in the League of Nations in view of the fact that the League of Nations has disappeared without any direct transfer of its mandates responsibilities or sovereignty to others and certainly without any suggestion that the League was transferring title to the mandated territories to the United Nations.‖ iv. H. Lauterpacht, Private Law Sources And Analogies of International Law 191-202 (1927). [This source is mentioned in Gerson‘s article infra. The pages of this article can be furnished upon request but it is too long to cut-paste.] v. Bernard Joseph, British Rule in Palestine 46-50 (1948).:
In considering Mandatory rule from the point of view of international law the question at once arises as to where sovereignty resides with respect to a mandated territory. Authorities in international law and municipal courts have not arrived at a common opinion on the subject. / In discussing the test and situs of sovereignty, Prof. W. W. Willoughby made the following formulation of the problem: "The presence or absence of sovereignty in a given political entity depends upon whether or not that entity has such complete control over its own legal competence that it cannot, against its own will, be legally bound in any way whatsoveer by the legal will of another political body . . . Sovereignty as a state attribute is not only a unity, but one that by its very nature and definition, connotes absolute legal authority. To place a legal limit upon it is, therefore, to destroy it." / In Article 16 of the Treaty of Lausanne, Turkey renounced its sovereignty respecting the various territories situated outside the frontiers laid down in the Treaty. The frontiers specified were of the area which was to remain Turkish, and excluded Palestine. This renunciation must be deemed to have been in favor of the Principal Allied Powers with which Turkey concluded the treaty. / Consequently, one view as to sovereignty with regard to mandated territory holds that the situs still resides in the Principal Allied Powers, who, by entrusting the administration of a mandated area to a Mandatory appointed by them, were merely delegating the exercise of sovereignty, but not surrendering it. / This view was propounded by Mr. Van Rees and Prof. William Rappard, who were leading members of the Permanent Mandates Commission of the League of Nations. It was also the view of the Government of the United States which claimed "an inseparable interest," with the Principal Allied and Associated Powers, in the overseas possessions of Germany and "an equal voice in their disposition." / This view is further supported by the consideration that neither in any Mandate nor elsewhere did the Principal Allied Powers part with the sovereignty which they obtained from Turkey. It has been argued that while these Powers did not expressly part with their rights of sovereignty in the various Mandates they agreed to, they did not reserve these rights for them-selves. On the contrary, the Powers provided for modification of the terms of the Mandate not with their consent but with that of the Council. This has been the principal ground for the view that sovereignty over mandated areas passed from the Principal Allied Powers to the League of Nations. However, this view is opposed by those protagonists of the Principal Allied Powers theory who point out that the League as such was not even consulted when the Principal Allied Powers decided to confer the Mandates on specific Mandatories. / The following statement of Lord Balfour at the 18th session of the League of Nations is relevant: / "The Mandates are neither made by the League, nor can they, in substance, be altered by the League . . . / "Remember that a Mandate is a self-imposed limitation by the conquerors on the sovereignty which they obtained over conquered territories. It is imposed by the Allied and Associated Powers themselves in the interests of what they conceived to be the general welfare of mankind; and they have asked the League of Nations to assist them in seeing that this policy should be carried into effect. But the League of Nations is not the author of the policy but its instrument . . ." (Charles H. Levermore, Third Year Book of the League of Nations, p. 137). / The first of these views now suffers from the practical consideration that, in the meantime, one of the Principal Allied Powers, Italy, went to war with the others. After the outbreak of the war, the other Powers certainly would not have conceded to Italy any such rights. The view with regard to the League is even more difficult to uphold, since that body formally ceased to exist in 1947. / A third view is that sovereignty resides in the Mandatory. This theory seems to have the least substantiation. As was observed by Mr. Van Rees, Articles 120 and 127 of the Treaty of Versailles use the expressions "the governments exercising authority over such territories" and "the Mandatory Power in its capacity as such," which would indicate that the Mandatory was understood not to be a sovereign Power. / One of the Mandatories, the Union of South Africa, through its highest court, actually decided that "the Government of South West Africa [i.e., the Mandatory] is not possessed of 'majestas' in the full sense of the term; in other words it is not a sovereign and independent state." The simplest test which would seem to negate this theory is that admittedly the Mandatory was placed under the control of the Council of the League; and the very existence of such control precludes the possibility of contending that a Mandatory enjoys sovereignty in the mandated area. That the Mandatories themselves accept this view is manifest from the fact that they have refused to invest the inhabitants of a mandated territory with their nationality. The League Council also adopted this view when, on June 3, 1926, it endorsed the opinion of the Permanent Mandates Commission that "the Mandatory Powers do not possess, in virtue of Articles 120 and 257 of the Treaty of Versailles, any rights over any part of the territory under the Mandate other than that resulting from their having been entrusted with the administration of the territory." / Similarly, at its 10th session the Permanent Mandates Commission decided that "it could not let the opportunity pass without expressing, in clear terms, its opinion that a Mandatory is not in possession of sovereignty over a Mandated area." / A fourth view holds that sovereignty resides in the Mandatory "acting with the consent of the Council of the League." / A fifth conception is that sovereignty is vested in the inhabitants of the mandated area. Some authorities qualify this proposition by adding that the exercise of sovereignty is in suspense so long as the Mandate is in force in the same way as the full legal capacity of a person not sui juris may be temporarily suspended, while the exercise of certain powers on his behalf is entrusted to a tutor. / A sixth formulation is that there is no state or group of states that is vested with sovereignty over Palestine, in its own or their right. The sovereignty, wheresoever it be vested, is only a trust sovereignty. It is held in trust for whatever future sovereign will emerge if and when the Mandate is carried out. / Perhaps the most reasonable approach to the problem is that which considers that little practical help is obtainable by attempting to apply existing conceptions of sovereignty to such a novel state of affairs as the Mandate system presents. What does emerge clearly is that the Mandatory does not enjoy in law the same sovereign rights over the Mandated territory as if it were the Mandatory's own territory. / A simple test which leaves no doubt in this matter is to consider whether a Mandatory could, without the consent of the Council of the League, transfer any part of the Mandated territory to a different Mandatory. Clearly it could not legally do so, and, indeed, the Palestine Mandate contains an express injunction in Article 5 making the Mandatory responsible "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." If the Mandatory did enjoy sovereignty it would be free to cede or lease territory. / That there was never any intention that Palestine should in any way form part of the territories of the British Empire is evident from a comparison of Article 2 of the Palestine Mandate with the corresponding article of the Mandate for German Samoa. The latter provides that "The Mandatory shall have full power of administration and legislation over the territory subject to the present Mandate as an integral portion of the Dominion of New Zealand . . ." No such terminology is to be found in the Palestine Mandate. / The British Government, indeed, recognized that Palestine did not form part of the Empire when it saw fit to base the Palestine Order-in-Council, 1922, which is in the nature of a local constitution, upon the Foreign Jurisdiction Act of 1890. By virtue of this Act, His Majesty's Government exercises jurisdiction in foreign countries—i.e., in countries not under the sovereignty of His Majesty. / This view was also laid down by the Court of Criminal Appeal in the United Kingdom in the case of Ketter vs. R.4 In this case the Court called attention to the Preamble of the Mandate and Articles 1, 5, 7 and 12 and, in discussing the assertion that Palestine had become British territory and its citizens British nationals, it held that "His Britannic Majesty accepted the Mandate in respect of Palestine and undertook to exercise it on behalf of the League of Nations in conformity with the provisions contained in it. There was no provision in Article 30 [of the Treaty of Lausanne] for the transfer of territory to Great Britain. If there had been there would have been no need for the Mandate." The Court added that "there has been no annexation of Palestine." The Courts of Palestine came to a similar decision in 1926. In the case of In re Goralshvili, a District Court held as follows: / "The question as to what is a mandate has, so far as I am aware, never been judicially determined, but I do not think that sovereign power resides in a Mandatory. / "The duties of a Mandatory are to administer the territory entrusted to its charge – certain limitations are imposed and there are duties owing by the Mandatory to the League of Nations. / "A limited or qualified sovereignty is a contradiction in terms—there can be no such thing. I hold that Palestine is not a part of the British Dominions though I am not prepared to say what its exact status is and Palestinians are not therefore British subjects." / In confirming this judgment, the Chief Justice said: "To hold that the petitioners are British subjects would involve holding that the Crown, having accepted the responsibility of governing Palestine as a Mandatory, has thereby acquired sovereignty, a view for which no authority has been cited." / Wherever sovereignty over Palestine may reside in law, the Mandatory for Palestine exercises, in practice, virtually sovereign powers since it is answerable to nobody. It legislates in complete disregard of the provisions of the Mandate and there appears to be nobody prepared or technically entitled to call the Mandatory to account. In fact, Great Britain so completely ignored its limitations as a Mandatory that its Foreign Secretary paid no heed to the unanimous findings of a joint British-American Committee of Inquiry and did not hesitate to announce that his Government would not consider itself bound to accept the recommendations of the United Nations Special Committee on Palestine. Despite its international character, he regarded the Committee as merely an advisory body. / Mention has been made of the fact that the Mandate came into being as the result of a decision of the Council of the League of Nations. It should be emphasized, however, that the responsibility for the Mandate is not merely that of the League of Nations as an entity, but that of each one of the States comprising the membership of the League. The effect in international law of the League's decision was no different from the effect of a treaty entered into and executed by each and every one of the member States of the League. Notwithstanding the League's demise, the Mandate remains an international obligation guaranteed by, and continuing to rest upon, all those States which were formerly member States of the League and which were thus parties to creating the Mandate and conferring it upon His Britannic Majesty. vi. Allan Gerson, Trustee-Occupant, 14 Harv. Int'l. L. J. 1, 24-27 (1973).: a. Sovereignty in mandated territories. Although disagreeing on the nature of sovereignty in mandated territories, international lawyers have generally agreed on the following live entities as the possible repositories of such sovereignty: (a) the Principle Allied and Associated Powers; (b) the mandatory power; (c) the League of Nations; (d) the people or peoples of mandated territories; or (e) combinations of the above. / The Mandate System was created, in large measure, to oversee the former colonial holdings renounced by the Central Powers in the peace treaties of World War I. Our concern here is with the Ottoman Empire's colonial holdings in the Middle East, which were collectively designated as Syria. In the Treaty of Lausanne of July 24, 1923, Turkey renounced "all rights and title" to this area, which had already been carved up into the Mandates of Syria and the Lebanon, Mesopotamia, and Palestine. Although the treaty was signed with the Principle Allied and Associated Powers, it never mentioned such powers by name. Even if one were to assume that Turkish sovereignty over these areas was ceded to the Principle Allied and Associated Powers despite the absence of their express mention, the later actions of the Powers invalidate the assumption that they retained such sovereignty. Their subsequent appointment as mandatories to govern these territories under League of Nations supervision must, rather, be deemed a surrender and not mere delegation of their sovereignty. The following facts are conclusive in such a determination: (a) the Principal Allied and Associated Powers no longer continued their unitary existence; (b) the Council of the League of Nations assumed full responsibility over the mandates' administration; (c) no mention in any mandate agreement was made of any residual powers in the Principal Allied and Associated Powers. / Nor would it be tenable to argue retention of sovereignty by the mandatory power in view of the rejection of such a concept by the International Court of Justice. In its 1950 Advisory Opinion on the International Status of South West Africa,76 the International Court rejected South Africa's contention of sovereignty over the class C Mandate of South-West Africa. Class C mandates were permitted by the Covenant of the League of Nations to be administered under the law of the mandatory power as integral parts of its territory, subject to certain safeguards in the interests of the indigenous population. The class A Mandates of Syria and the Lebanon, Mesopotamia, and Palestine were, by contrast, recognized as "communities that have reached a stage of development where their existence as independent nations can be provisionally recognized, subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone."78 As a mandatory power cannot be said to have retained sovereignty over a class C mandate, a jortiori no such claim over an A mandate is sustainable. / The League of Nations would seem a more likely candidate for the role of sovereign in mandated territory. The administration of mandated territory by the mandatory was to be on behalf of the League. Various provisions of the Covenant conferred upon the League the responsibility of exercising constant supervision and control over the mandatory power. The "cumulative effect of the limitations" on the rights of the mandatory power justify the inference, as H. Lauterpacht correctly concluded, that the League had "ultimate responsibility." / Retention of "ultimate responsibility" or supervisory power need not, however, be regarded as synonymous with retention of title. Applying H. Lauterpacht's suggested analogy of mandates to common law trusts, we see that retention of supervisory power by a third party over the trustee is not infrequent as, for example, in charitable trusts. The third power does not acquire title. Rather, title is divided between the trustee and the beneficiary, the former retaining legal title and the latter gaining equitable title which, assuming a remainder interest, ripens into full legal title at the termination of the trust. / The Mandate System was, in large measure, the outgrowth of the adoption of President Wilson's principles of non-annexation and self determination of peoples as determinative in the disposition of acquired Central Powers' territory. Adoption of these principles is especially evident in A mandates where, as we have noted, "their existence as independent nations" was "provisionally recognized, subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone." The right of the people to eventual exercise of sovereignty was thus immediately recognized. The mandatory power acquired only the most limited title, referred to by the Covenant of the League as a "tutelage," a title which remained only until such people could stand on their own. To repeat an oft quoted phrase of the Covenant, which was the governing principle of all classes of mandates, the "well being and development of such people form a sacred trust of civilisation." / Translated into the terms of municipal trust law we may then say that equitable title, coupled with a remainder interest to full title which would vest in the beneficiary people or peoples upon the mandate's termination, was conveyed to all classes of mandates and to those of class A mandates in particular. Sovereignty as retained by the beneficiary people was thus in a state of suspension or, as Lord McNair in the International Status of Southwest Africa Case put it, "in abeyance; if and when the inhabitants of the territory obtain recognition as an independent state, as has already happened in some Mandates, sovereignty will revive and vest in the new state."