The Mandate survived the demise of the League of Nations. Article 80 of the UN Charter implicitly recognizes the “Mandate for Palestine” of the League of Nations.
This Mandate granted Jews the irrevocable right to settle anywhere in Palestine, the area between the Jordan River and the Mediterranean Sea, a right unaltered in international law and valid to this day. Jewish settlements in Judea and Samaria (i.e. the West Bank), Gaza and the whole of Jerusalem are legal.
The International Court of Justice reaffirmed the meaning and validity of Article 80 in three separate cases:
• ICJ Advisory Opinion of July 11, 1950: in the “question concerning the International States of South West Africa.”33
• ICJ Advisory Opinion of June 21, 1971: “When the League of Nations was dissolved, the raison d’etre [French: “reason for being”] and original object of these obligations remained. Since their fulfillment did not depend on the existence of the League, they could not be brought to an end merely because the supervisory organ had ceased to exist. ... The International Court of Justice has consistently recognized that the Mandate survived the demise of the League [of Nations].”34
• ICJ Advisory Opinion of July 9, 2004: regarding the “legal consequences of the construction of a wall in the occupied Palestinian territory.”35
In other words, neither the ICJ nor the UN General Assembly can arbitrarily change the status of Jewish settlement as set forth in the “Mandate for Palestine,” an international accord that has never been amended.
All of western Palestine, from the Jordan River to the Mediterranean Sea, including the West Bank and Gaza, remains open to Jewish settlement under international law.
Professor Eugene Rostow concurred with the ICJ’s opinion as to the “sacredness” of trusts such as the “Mandate for Palestine”:
“‘A trust’—as in Article 80 of the UN Charter—does not end because the trustee dies ... the Jewish right of settlement in the whole of western Palestine—the area west of the Jordan—survived the British withdrawal in 1948. ... They are parts of the mandate territory, now legally occupied by Israel with the consent of the Security Council.”36
The British Mandate left intact the Jewish right to settle in Judea, Samaria and the Gaza Strip. Explains Professor Rostow:
“This right is protected by Article 80 of the United Nations Charter, which provides that unless a trusteeship agreement is agreed upon (which was not done for the Palestine Mandate), nothing in the chapter shall be construed in and of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which members of the United Nations may respectively be parties.
“The Mandates of the League of Nations have a special status in international law. They are considered to be trusts, indeed ‘sacred trusts.’
“Under international law, neither Jordan nor the Palestinian Arab ‘people’ of the West Bank and the Gaza Strip have a substantial claim to the sovereign possession of the occupied territories.”
It is interesting to learn how Article 80 made its way into the UN Charter.
Professor Rostow recalls:
“I am indebted to my learned friend Dr. Paul Riebenfeld, who has for many years been my mentor on the history of Zionism, for reminding me of some of the circumstances which led to the adoption of Article 80 of the Charter. Strong Jewish delegations representing differing political tendencies within Jewry attended the San Francisco Conference in 1945.
Rabbi Stephen S. Wise, Peter Bergson, Eliahu Elath, Professors Ben-Zion Netanayu and A. S. Yehuda, and Harry Selden were among the Jewish representatives. Their mission was to protect the Jewish right of settlement in Palestine under the mandate against erosion in a world of ambitious states. Article 80 was the result of their efforts.”37