Monday, October 10, 2016

Several Paths from a 1920 Jewish National Home to a 2016 Jewish State - Wallace Edward Brand, JD




by Wallace Edward Brand, JD

A must read to understand the legal foundations for Israel's existence as a Jewish state.

Enacting UN Resolution 181 (the Partition Resolution) was NOT one of the logical paths to Jewish statehood in Palestine because the UN General Assembly has no authority to do more than recommend. 

In the 1920s the British in the Balfour Declaration had developed a policy to favor the Jewish goal of Zionism in Palestine if the Allies were successful in WWI against the Ottoman Empire, that had joined the war in 1914 as one of the European Central Powers.  In April, 1920, the Allies met in San Remo and adopted that policy.  The British had volunteered to be trustees over a trust designed to permit the Jewish People first to settle in Palestine west of the Jordan River and ultimately to attain sovereignty if and when it became the majority population in that territory and became capable of exercising sovereignty. 

Between 1920 and 1948 British interests changed.  It found that meeting the obligations of trusteeship over a trust res for the Jewish People by maintaining law and order in Palestine was no longer its goal and that maintaining law and order in Palestine was costing it much in treasure and military manpower.  It gave notice to the UN that it would resign as trustee in 1948. 

The UN formed a Special Committee on Palestine  (UNSCOP) that held hearings on what to do following the British withdrawal.  It enacted a Resolution 181 entitled The Partition Resolution because the resolution divided the Palestine territory between the Jewish People and the Arab People.  The Resolution was no more than a recommendation because the UN General Assembly has no authority to legislate and Article 80 of the Charter was careful to maintain existing rights to territory.. 

A careful reading of the UN Charter shows that the General Assembly can only recommend.  Its recommendations become international law only if those affected by the recommendation agree to it.  These are usually ratified by a treaty.

As noted by Caroline Glick in her recent book The Israel Solution, Elihu Lauterpacht, a judge on the International Court of Justice says “’the coming of Israel into existence does not depend legally upon Resolution [181].  The right of a state to exist flows from its factual existence, especially when that existence is prolonged, shows every sign of continuance and is recognized by the generality of nations.” 

Amplifying Lauterpacht’s position, in 1981 the legal scholar Julius Stone wrote “The State of Israel is . . .not legally derived from the partition plan, but rests (as do most other states in the world) on assertion of independence by its people and government, on the vindication of that independence by arms against the assault by other states and on the establishment of orderly government within territory under its stable control. Stone, Israel-Palestine: Assault on the Law of Nations Baltimore Johns-Hopkins (1981).

And Judge Stephen Schwebel, who later became the President of the International Court of Justice, explained in a 1970 article in the American Journal of International Law that “where the prior holder of territory [in this case Jordan] had seized the territory unlawfully, the state which lawfully takes the territory in the exercise of self-defense [that is Israel in the 1967 Six Day War] has better title. ‘’ What Weight Conquest, April 1970 pp. 346.

My own path to the Jewish People’s sovereignty is somewhat different. 

The Palestine Mandate is a trust agreement. I find this, as did Dean Eugene Rostow in Historical Approach to the Issue of Legality of Jewish Settlement Activity in New Republic, April, 1990 and  Duncan Campbell Lee, in a book entitled Mandate for Mesopotamia and the Principles of Trusteeship under British Law containing his lecture in May, 1921 at University College, London. Both are correct in finding that the Palestine Mandate is nothing more than a trust agreement. 

Harry Sacher who penned the first draft of the Balfour Declaration also wrote a short booklet in 1919 published by the Zionist Organization in London in which he recommended that the collective rights to political self-determination be placed in a trust in which the trustee would be Great Britain, under the supervision of the League of Nations.  His book is entitled A Jewish Palestine, the Jewish case for a British Trusteeship

This conclusion is confirmed by the very first sentence of the Palestine Mandate which “entrusts” Britain with the right to administer the government within Palestine.

This trust lasted at least until 1967 as the British resignation of their voluntary undertaking as trustees did not have the effect of ending the trust according to Dean Rostow.  Exercising legal domain over collective political rights to self-determination (national rights) would give a group the right to set up a government and administer it.  By 1922 the British had already converted its military government to a civilian one.

Evidence of the intention of the settlors of the trust is the lodestar (guiding light) to interpreting the terms of the trust if it is judicially admissible.  This is a recognized legal principle. 

There are three pieces of evidence that appear to be relevant.  One is the British Government’s explanation of the Balfour Declaration issued by the British Foreign Office on December 19, 1917.  In an official memorandum Arnold Toynbee and Lewis write that the contention the Jewish government would be anti-democratic was "imaginary" because the national rights, the collective political rights to self-determination would be placed in trust until the Jews attained a population majority. This memo was published the month after the publication of the Balfour Declaration which was copied into the San Remo Agreement and the Palestine Mandate word for word.

This is relevant because at San Remo on April 25, 1920, the Allied Principal War Powers of WWI agreed that the terms of the British Policy would govern the terms of the trust authorized to be created and the terms of the Balfour Declaration were adopted word-for-word. 

Also of relevance is an excerpt from the tentative proposal of the US drafted by “The Inquiry,” a group of academics assembled at the request of President Woodrow Wilson to have an academic approach to settlement terms for the war.

“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.

(1. David Hunter Miller, My Diary at the Conference of Paris, Vol. iv, pp. 263-264. Full text.2. J.C. Hurewitz (ed.), The Middle East and North Africa in World Politics: A Documentary Record, Vol.2, British-French Supremacy, 1914-1945 (New Haven: Yale University Press, 1979), p. 103. 3. www.eretzyisroel.org/~samuel/americandraft.html)

Both the British Foreign Office Memo and the tentative proposal of The Inquiry of January 21, 1919 provide for statehood following the Jewish National Homeland when the Homeland meets the conditions discussed by the settlers. 

A third piece of evidence is the memorandum of Herbert Samuels at the time the Ottoman Empire entered into warfare joining the Central Powers, Germany, The Austro-Hungarian Empire, Bulgaria, et al.  These indicate that they wanted a state but that a state would be impractical to create when the ruling bloc was smaller than other ethnic groups whose obedience must be commanded.  And the Jewish population would also need to be large enough demographically to be able to protect their citizens  from foreign aggressors.  One need only look at what happened later to the French Mandate in Syria when these same principles were ignored and a 2% Alawite ethnic group was recognized by the French as sovereign.  Under Hafez Assad, some 100,000 civilians were killed and under his son Bashir, another 450,000 civilian casualties are believed to have been sustained. 

On the evening before the adoption of the San Remo Resolution France had wanted to amend the savings clause applicable to non-Jewish communities, to save the political rights of the non-Jews.  The others at the table objected to this change as the non-Jewish communities had never exercised any collective political rights and therefore had none to save.  The French were satisfied with a “side agreement” written in French that the savings clause did not require that these non-Jewish communities to surrender any of their existing rights.

The terms of the Palestine Mandate were approved and confirmed by 52 States who were members of the League of Nations and by the U.S. in June, 1922 in a joint congressional resolution and in 1925 in a treaty.  The tentative proposal of the U.S. at the Paris Peace talks contained the provision:

`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.

The phrase on the intended policy of the League of Nations shows that the act of the League of Nations recognizing Palestine as a Jewish state was intended only to be a ministerial act once the trust res vested.  These trust conditions vested partly in 1948 and partly in 1967. 

The terms of a trust agreement typically are self-executing.  If I place a Ming vase in trust for my daughter to vest when she is 35 years of age, it would be self-executing.  The trust res would vest on her 35th birthday unless the trustee disagreed she should have it.  In that case it would have to be litigated.  The League of Nations had set up a Permanent Mandates Commission to take the place of a court of equity. The conditions of this trust were that if the Jewish people had attained a majority in the area and the capability of exercising sovereignty, they would rule.  These conditions were attained in 1948 for the first area in which both were met.  This was the area now described as being within the Green Line. 

According to Article 7 of the 1933 Montevideo Convention on duties and obligations of statehood, “The recognition of a state may be express or tacit. The latter results from any act which implies the intention of recognizing the new state.”  Both Presidents Harding and Coolidge executed the US confirmation and approvals.  They had the power to authorize recognition of a foreign state.

I think the foregoing will help any person who wants to understand all the support for the proposition that the Jewish People have sovereignty over all of Palestine west of the Jordan.  I do not suggest that this result should supersede the reasoning of others such as the respected Lauterpacht, Stone or Schwebel but seem to be a simpler and reasonable approach to the question.  Also, it seems to be supported by the opinions of several highly regarded jurists in United States shown in Rifkind, et al., The Basic Equities of the Palestine Problem.

Question: Why was the draft Mandate for Palestine redrafted to expressly avoid discussing that its second step was to recognize the Jewish People’s Statehood? 

Because the British had published the Declaration at a time when the war was ongoing.  Calling troops away from the main fight with the Central Powers, to keep order in Palestine if the Arabs were stirred up, was at all costs to be avoided.  Communications showing that the British knew it was providing for ultimate statehood for Palestine are collected in Doreen Ingrams, Palestine Papers 1917 — 1922:Seeds of Conflict.


Wallace Edward Brand, JD

Source: http://www.israelnationalnews.com/Articles/Article.aspx/19588

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