by Wallace E. Brand
The
San Remo Agreement is the legal basis of
the Mandate for Palestine and subsequently, the
State of Israel’s sovereignty over the entire area of the Mandate. It incorporated the
1917 Balfour Declaration and the Covenant of
the League of Nation's Article 22
This
agreement was adopted on April 25,
1920 by the
post-World War I powers, namely Britain, France, Italy, Japan, and is irrevocable under international
law. Britain was entrusted with the Mandate until such time as the Jewish
population in the territory of the Mandate became a majority.
The
1920 San Remo agreement of the Allied Principal War Powers contained the
British Balfour Declaration of Policy word-for-word. The 1922 Palestine Mandate approved by 51
countries that were members of the League of Nations, and also by the United
States, filled in the details needed to apply the Balfour Policy.
Fig 1: The
1920 provisional Palestine Mandate (Image courtesy Eli E. Hertz)
Below is a list of terms used
in the Mandate with their detailed definitions below the list, for the
edification of the reader who may not be conversant with the relevant legal
terms.
1. The "settlor", the person or entity
setting it up. He contributes the trust "res”.
2. The cestui
que trust or “beneficiary” of the trust.
3. The trustee.
4. The trust "res" or the thing placed
in trust.
5. The purpose of the trust.
6. The term of the trust. These
are the vital elements of a trust. Some are express; others may
be inferred. For example if you place a delicate Ming dynasty bowl
in trust for your daughter aged 5, others may infer that the purpose of the
trust that is to vest when she is 30 is to preserve and protect it until she is
capable of doing that herself.
1. At San Remo, the settlor of the trust was
the Supreme Council of the Allied Principal War Powers in WWI. They
defeated Germany who commenced the war and the Ottoman Empire who joined
Germany in making war on the Allies. Under customary International Law, the
victors in a defensive war may negotiate with the vanquished to establish
new boundaries for it and keep all the territory outside the new
boundary. In this way the Ottoman Empire was reduced to Turkey. The remaining Turkish territory in Europe was
allocated by the Supreme Council at the 1919 Paris Peace Talks. Claims for territory in the Middle East –
Syria, Mesopotamia and Palestine -- were resolved at the reconvening of the
group at San Remo, the following year. At the Paris Peace talks the
Allies set up the League of Nations including Article 22 of its Covenant
that provided for “mandates”. These were combination trusts and
guardianships for countries that had been colonies of Turkey for 400
years. The Mandatory was to provide stability and tutelage for their
political development to become independent representative governments over
time.
2. The cestui que trust is the
beneficiary. The beneficiary has no right to go to a "law
court" to protect his rights. That is only the right of the
trustee. He has legal dominion over the trust res. For a tangible
piece of property, such as a Ming dynasty bowl, only the trustee has the right
of possession. If it is stolen, only the trustee can go into a court
of law to reclaim it. The beneficiary is limited to protecting
his rights against abuse by the trustee. He is entitled to go into a
court of equity. The beneficiary here was the Jewish People or World
Jewry. It was the Jewish people and the Arab people who had
submitted competing claims for collective political rights to Palestine at the
Paris Peace talks. Woodrow Wilson's Commission of Inquiry in searching for
those throughout the world having the right of self-determination had said
of the Jews that Palestine was "the
cradle and home of their vital race" and noted that the Jews were the only
people that had no other land.
An express term of the trust made the World
Zionist Association the formal advisor to the mandate
government. Another term required the trustee to facilitate only
Jewish immigration so the Jews could become a majority.
3. The mandate was based on English
law concepts of trusts and guardianships.
Britain volunteered to be trustee or “mandatory” and was selected.
4. The thing placed in trust, the “trust res”,
was an intangible, the collective right of a group to establish a government
and provide for its administration. This is referred to as "group
political rights”. An individual
political right, sometimes referred to as included in "civil
rights", is the right to one vote for each citizen.
5. The purpose of the trust was, in
the case of most of the mandates, providing a stable government until such time
as the majority of the people in the territory of the state developed
politically and could represent themselves - there having been no opportunity
in the last 400 years for the inhabitants of the former Turkish colonies to do
that. It was also, in the case of the Palestine Mandate, to avoid an
antidemocratic Jewish government. At the time the Jews were in the
minority in the entire territory of Palestine and if they had legal dominion
over the political rights, an antidemocratic government would be in
power. One purpose of the Palestine Mandate was to delay
representative self-government until the Jews were in the majority within the
area to be ruled.
6. The term of the trust -- it was
to end when the Jewish population in the area to be ruled was in the majority
and the Jews had the capability, just as any European Government to exercise
sovereignty. That would avoid an antidemocratic government such
as later was founded in Syria by the French, of a minority of Alawites that
under Hafez Assad and Bashir Assad has caused so much misery and
destruction.
Historical note:
In 1948 the Jewish population within the
Armistice Line in Palestine became the majority. The trust res partially
vested. In 1967 it became completely vested. Coincidentally,
1948 was also the year the UN Partition Resolution 181 was enacted and
when Israel proclaimed its independence. That is why many people
believe that Resolution 181 is the root of Israel’s sovereignty. But
the Arabs rejected this Resolution. By law it was only a recommendation that
must be approved by all involved before becoming international law. It died at birth when rejected by the Arabs.
In 1964 the PLO charter was drafted in
Moscow. This was the origin of the “Palestinian Arab People”. In
the ‘60s also the Soviet Diplomats at the UN promoted two International
Conventions dignifying the right of any “people” to have the right of political
self-determination not just under natural law, but also under international
law. These became effective in 1976. But
the drafters at the UN made sure that these rights under international law
were subordinate to the right of a preexisting state to territorial integrity
because since the new world order was established after the Peace of
Westphalia, national boundaries of sovereign states have been
inviolable.
So ends the Palestine Mandate in a
Nutshell. For the unshelled version see SSRN.com/abstract=2385304
Wallace E. Brand (Salubrius), JD is a graduate of Harvard and UCLA
Source: Middle East and Terrorism Blog
Copyright - Original materials copyright (c) by the authors.
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