by Eldad Beck
Canadian legal scholar Dr. Jacques Gauthier has devoted 20 years to the thorny question of the ownership of Jerusalem, and has concluded that Israel has unquestionable sovereignty not only over the whole city, but over Judea and Samaria as well.
On Aug. 20, 1980,
the United Nations Security Council passed Resolution 478, which
condemned a law passed three weeks earlier by the Knesset declaring
Jerusalem Israel's "complete and united" capital.
The U.N. resolution said that declaring all
of Jerusalem the capital of Israel was in violation of international
law, canceled the validity of any steps by Israel as an "occupying
power" to change the character of the "holy city of Jerusalem," and
called on all countries that maintained embassies in Jerusalem to
relocate them. The law passed by a margin of 14 votes and without the
U.S. exercising its veto.
The resolution forms the basis of the
"international consensus" that keeps most of the countries that have
diplomatic ties with Israel from moving their embassies back to
Jerusalem.
But Dr. Jacques Gauthier, a Canadian expert
in international law, says there is a problem with that consensus: He
says it is a blatant violation of the international law on which it is
supposedly based.
Gauthier devoted his doctoral thesis to the
issue of ownership and legal rights over Jerusalem. He has devoted 20
years to investigating the complicated legal questions and has made many
visits to the city, as well as to other places where historic decisions
were made that anchored in law Israel's legal right to sovereignty over
all of Jerusalem, as well as Judea and Samaria.
"To understand it, one must go back to
historical events that led to the Jewish people being granted the rights
[over Jerusalem]," Gauthier tells Israel Hayom.
"The final decision by the League of
Nations, the international entity that predated the U.N., which was made
in April 1946, emphasized that member nations that still had a mandate
over territories that had been transferred to them to manage should
continue to remain in charge of them for the benefit of the people
living there, in accordance with the obligations they undertook as part
of that same mandate.
"When the League of Nations disappeared,
the obligations of the Mandate over Palestine remained in effect. That's
highly relevant for the Jewish people. The U.N. Charter, which is an
international agreement binding for all nations, stresses that none of
its articles can alter the rights given to any nations before it was
ratified. That article was intended to protect the rights to the Land of
Israel given to the Jews too. So that article obligates everything that
is done in the U.N."
Gauthier stresses that according to the
U.N. Charter, resolutions passed by the General Assembly – including the
1947 Partition Plan, which created the basis for the modern state of
Israel – are non-binding, except for internal U.N. matters.
"Still, the Security Council was influenced
by the General Assembly adopting resolutions that condemned Israel.
Only a very small number of Security Council decisions are considered
binding under international law. So my position is that Resolution 478
is not binding under international law," Gauthier says.
While forming his legal opinion, Gauthier
sought out the historical documents that set down the ownership of
Jerusalem, as well as "Palestine" as a whole.
"The Syke-Picot Agreement that divided up
the Middle East was a secret deal between France and Britain that went
against the Balfour Declaration, which had been announced publicly. We
must not forget the principle that one cannot give away what one doesn't
own. So neither France nor Britain had the ownership or the rights to
these territories – it was the Ottoman Empire," Gauthier says.
"As a legal scholar, I needed to find out
at what point in time these powers made decisions that they had a right
to make. The Balfour Declaration is, no doubt, a very important moment.
In the midst of the war [World War I] in November 1917, the British were
worried about how it was going and decided to support the establishment
of a Jewish national home in Palestine. That was a very important
political decision, even if it has no legal validity. In 1917, there was
no country named 'Palestine.' The Holy Land was part of the Ottoman
Empire and divided into districts. Palestine was seen as the Holy Land
for the Jews. The British only conquered Jerusalem later on. So the
Balfour Declaration does not serve as a basis for the Jews' right [to
Jerusalem]."
In January 1919, peace talks were held in
Paris. Among other things, the conference was supposed to settle the
matter of who would control the countries defeated in the war. Arab and
Zionist delegations appeared before representatives of the victors and
laid out their demands for territory in the defeated Ottoman Empire.
"This was after the deal that [Chaim] Weizmann and Emir Faisal struck in January 1919," Gauthier says.
"Faisal the Hashemite made it clear he
would support the Jews' claim to Palestine. He tried to gain the support
of the Jews for him to control vast swathes of the Ottoman Empire –
Iraq, Syria, Lebanon. But no decisions on the Middle East were made in
the Paris talks. Germany and Austro-Hungary gave us their rights to any
of the territories. This is the key development in international law I
was looking for, the moment at which the victorious powers [in World War
I] gave up their claims."
A historic turning point for the Jews took place in San Remo in April 1920.
"For two days, representatives of the
victorious nations discussed what to do with the Ottoman Empire's land
and how to respond to the demands from the Arabs and the Jews. On April
25, they made the decision: Britain, France, Italy, Greece, Belgium, and
Japan agreed that the Jews could establish a national home in
Palestine. The most fervent supporter was David Lloyd George of Britain.
The French representative asked him why Palestine should be given to
the Jews. He responded by pulling out a map that showed the boundaries
of the Holy Land in the time of King David and King Solomon," he says.
Q: In other words, including Jerusalem, Judea, and Samaria?
"Indeed. San Remo was the first time that
the Jews' historical right to the Land of Israel was recognized. The
powers that had all the authority recognized that historical connection.
The San Remo decision is anchored in the Treaty of Sevres that was
signed with Turkey in the summer of 1920, which was not ratified by the
Turks. But in 1923, in the Treaty of Lausanne, the Turks gave up
ownership of territory in the Middle East, and the content of the Treaty
of Sevres wasn't changed at all. That agreement clearly states that the
rights [to the land] are transferred to the winning powers.
"The only difference between Jerusalem and
Judea and Samaria is that Israel, the Jewish state, has adopted its
right to Jerusalem. When the U.N. publishes resolutions referring to
'occupied Palestinian territories,' the term has no validity when it
comes to international law, since these territories were never
Palestinian. The term 'occupied' might be correct, if it is used to
indicate that their status will be determined in the future."
Gauthier makes it clear that he is not taking a political stance.
"As a legal scholar, I have determined that
it is not just to claim that Jews/Israelis anywhere in Jerusalem are
thieves or settlers who illegally took over something that isn't
theirs," he says.
"The rights [to Jerusalem] were given to
the Jews at a specific point in history. That is relevant to every
negotiation and any future agreement about the status of Jerusalem. The
problem is that a certain political narrative has taken the place of
legal arguments."
Eldad Beck
Source: http://www.israelhayom.com/2018/11/30/international-consensus-on-jerusalem-is-baseless/
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