The “Mandate for Palestine” is Valid to This Day
The Mandate survived the demise of the League of Nations. Article 80 of the UN Charter implicitly recognizes the “Mandate for Palestine” of the League of Nations.
This Mandate granted Jews the irrevocable right to settle anywhere in Palestine, the area between the Jordan River and the Mediterranean Sea, a right unaltered in international law and valid to this day. Jewish settlements in Judea and Samaria (i.e. the West Bank), Gaza and the whole of Jerusalem are legal.
The International Court of Justice reaffirmed the meaning and validity of Article 80 in three separate cases:
• ICJ Advisory Opinion of July 11, 1950: in the “question concerning the International States of South West Africa.”33
• ICJ Advisory Opinion of June 21, 1971: “When the League of Nations was dissolved, the raison d’etre [French: “reason for being”] and original object of these obligations remained. Since their fulfillment did not depend on the existence of the League, they could not be brought to an end merely because the supervisory organ had ceased to exist. ... The International Court of Justice has consistently recognized that the Mandate survived the demise of the League [of Nations].”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
Political Rights in Palestine Were Granted to Jews Only
The “Mandate for Palestine” clearly differentiates between political rights— referring to Jewish self-determination as an emerging polity—and civil and religious rights, referring to guarantees of equal personal freedoms to non- Jewish residents as individuals and within select communities. Not once are Arabs as a people mentioned in the “Mandate for Palestine.” At no point in the entire document is there any granting of political rights to non-Jewish entities (i.e., Arabs). Article 2 of the “Mandate for Palestine” explicitly states that then Mandatory should:
“... be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish National Home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.”
Political rights to self-determination as a polity for Arabs were guaranteed by the League of Nations in four other mandates – in Lebanon, Syria, Iraq, and later Trans-Jordan [today Jordan].
International law expert Professor Eugene V. Rostow, examining the claim for Arab Palestinian self-determination on the basis of law, concluded:
“… the mandate implicitly denies Arab claims to national political rights in the area in favor of the Jews; the mandated territory was in effect reserved to the Jewish people for their self-determination and political development, in acknowledgment of the historic connection of the Jewish people to the land. Lord Curzon, who was then the British Foreign Minister, made this reading of the mandate explicit. There remains simply the theory that the Arab inhabitants of the West Bank and the Gaza Strip have an inherent ‘natural law’ claim to the area.
Neither customary international law nor the United Nations Charter acknowledges that every group of people claiming to be a nation has the right to a state of its own.”26 [italics by author]
The Origin and Nature of the “Mandate for Palestine”
The “Mandate for Palestine,” an historical League of Nations document, laid down the Jewish legal right to settle anywhere in western Palestine, a 10,000- square-miles3 area between the Jordan River and the Mediterranean Sea.
The legally binding document was conferred on April 24, 1920 at the San Remo Conference, and its terms outlined in the Treaty of Sèvres on August 10, 1920.
The Mandate’s terms were finalized and unanimously approved on July 24, 1922, by the Council of the League of Nations, which was comprised at that time of 51 countries4, and became operational on September 29, 1923.5
The “Mandate for Palestine” was not a naive vision briefly embraced by the international community in blissful unawareness of Arab opposition to the very notion of Jewish historical rights in Palestine. The Mandate weathered the test of time: On April 18, 1946, when the League of Nations was dissolved and its assets and duties transferred to the United Nations, the international community, in essence, reaffirmed the validity of this international accord and reconfirmed that the terms for a Jewish National Home were the will of the international community, a “sacred trust” – despite the fact that by then it was patently clear that the Arabs opposed a Jewish National Home, no matter what the form.
Many seem to confuse the “Mandate for Palestine” [The Trust], with the British Mandate [The Trustee]. The “Mandate for Palestine” is a League of Nations document that laid down the Jewish legal rights in Palestine. The British Mandate, on the other hand, was entrusted by the League of Nations with the responsibility to administrate the area delineated by the “Mandate for Palestine.”
Great Britain, the Mandatory or Trustee, did turn over its responsibility to the United Nations as of May 14, 1948. However, the legal force of the League of Nations’ “Mandate for Palestine”, The Trust , was not terminated with the end of the British Mandate. Rather, the Trust was transferred over to the United Nations.
“In Palestine as of Right and Not on Sufferance ...”
“When it is asked what is meant by the development of the Jewish National Home in Palestine, it may be answered that it is not the imposition of a Jewish nationality upon the inhabitants of Palestine as a whole, but the further development of the existing Jewish community, with the assistance of Jews in other parts of the world, in order that it may become a centre in which the Jewish people as a whole may take, on grounds of religion and race, an interest and a pride. But in order that this community should have the best prospect of free development and provide a full opportunity for the Jewish people to display its capacities, it is essential that it should know that it is in Palestine as of right and not on sufferance.”
Winston Churchill
British Secretary of State for the Colonies
June 1922
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