by Wallace Edward Brand, JD
The collective rights were not to vest in the Jewish People until the Jews had attained a population majority where they would rule, and the capability to exercise sovereignty.
A few months after the Ottoman Empire joined Germany in World War 1 in 1914 by attacking Russian ships, Herbert Samuel, a British Zionist, later appointed as the first Commissioner of the British Mandate in Palestine, recognized this was likely an opportunity to obtain a Jewish Palestine. But he decided that there were too few Jews in the population in Palestine at that time for immediate statehood to be practical. Although in the Jerusalem area the Jews were two thirds the total population, in the Palestine territory as a whole they only numbered about 100,000 or about one sixth the total of perhaps 600,000 Arab Muslims and Christians.
Herbert Samuel, a British Jew who had risen high in the British Labor Government wrote in a memo to the British War Cabinet entitled "The Future of Palestine": If Palestine were to be open to unrestricted Jewish immigration, it might become a Jewish majority state. How could they become a Jewish majority state? It would need a majority to be able to command obedience from the Arab ethnic population; also a larger population to protect the state against Arabs or other enemies external to the state. A failed Jewish state might set back Zionism for 100 years. After looking at what he conceived were the only alternatives, Samuel decided the way to go was to have Britain annex Palestine. The only alternatives to British annexation he thought of were: 1. Annexation by France, 2. Internationalization, 3. Annexation to Egypt, and 4. continued Turkish rule with guarantees permitting Jewish settlement.
Nothing came of Samuel's efforts. However several years later the British War Cabinet decided a Declaration favoring Zionism would be useful to the war effort to obtain the goodwill of Russian and American Jews. The Bolshevik government in Russia was thinking about ending its war efforts. That would release two or more divisions of German troops from their Eastern Front to travel to the Western Front where Britain and France were in a stalemate with German forces, bogged down in trench warfare. The US had been invited to join the Allies in the war against Germany but so far had not declared war.
David Lloyd-George had been introduced to Chaim Weizmann by C.P. Scott, the editor of the Manchester Guardian and Weizmann had met Lord Balfour in a garden party in Manchester. Through discussions with him about Zionism, all three had become very interested in it. Weizmann had helped England in the war by giving them free use of his intellectual property in the low cost manufacture of acetone that was used as a component of guncotton, an important explosive used in WWI.
Lloyd-George thought that only when Jews once again ruled in Palestine would it be recovered from a malarial wasteland to a land of milk and honey. (Lloyd-George, “The Jews and Palestine”, 1923). An important consideration was that Palestine was on the British trade route to India and Asia. Becoming trustee would give Britain control over the territory.
But it was the influence of the War Cabinet that finally gave Britain the impetus to declare itself in favor of a Jewish Palestine. The Declaration did not prevent the Russian Bolsheviks from deciding to terminate their war with Germany nor did it help persuade the Americans to enter the war on the British side as the War Cabinet had thought. The US did enter the war because of the German submarine attack on US shipping and the Zimmerman telegram. Lloyd-George had become British Prime Minister and Balfour had become British Foreign Secretary.
In 1917 Balfour had asked Weizmann to provide a first draft of a declaration of British policy favoring Zionism that Weizmann thought would satisfy the Zionists and Weizmann turned to Harry Sacher who was a lawyer but then working for the Manchester Guardian as a political analyst. He was a member of a small British Palestine club in Manchester. Sacher wrote the first draft. The final version was published on November 2, 1917.
The following month on December 19th the British Foreign Office published a memorandum explaining the Declaration responding to charges of anti-Zionists that the declaration provided for an undemocratic government. In a memo by Arnold Toynbee and Lewis Namier, the Foreign Office replied that a government ruled by a small section of the population would indeed be undesirable, but that was not contemplated. What was contemplated was that the [collective] rights to political self-determination in Palestine would be placed in trust, with Britain or the US as trustee having the rights to set up a government and administer it. Individual political rights were to be saved for the Arabs as “civil rights”.
The collective rights were not to vest in the Jewish People until the Jews had attained a population majority where they would rule, and the capability to exercise sovereignty. The Balfour Declaration expressly provided for immediate right of settlement in Palestine by the Jews and for the trustee to facilitate Jewish immigration, but deferred rule by the Jews until they had met majority of population and capability of exercising sovereignty standards.
Sacher agreed with Samuel that it would be unwise to seek immediate statehood for the Jewish People but disagreed with him on the best way to bring about an enduring Jewish Palestine -- not by British annexation but by placing the collective political rights to self-determination of Palestine in trust until the Jews were ready for statehood. He wrote a short 23 page book listing five methods of attaining a Jewish Palestine, including British annexation of the territory, international control, Turkish suzerainty, immediate statehood, or trusteeship (by the US or Britain). He favored the latter. His book was entitled "A Jewish Palestine: the Jewish case for a British trusteeship.” (World Zionist Organization, London Bureau,1919).
The United States also favored this approach as shown by the American Proposal for Palestine, January 21, 1919 delivered to President Wilson and his plenipotentiaries in Paris for the Peace Conference by a committee of academics he had set up to help in peace negotiations. The group initially called “The Inquiry”, became the American Commission to Negotiate the Peace when he brought many of them to Paris with him. It exists today as the Council on Foreign Relations, but divorced from the government.
It recommended in pertinent part:
“1) That there be established a separate state of Palestine.
2) That this state be placed under Great Britain as a mandatory of the League of Nations.
3) That the Jews be invited to return to Palestine and settle there being assured by the Conference of an 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 recognise [sic] Palestine as a Jewish state as soon as it is a Jewish state in fact.”
This recommendation was not express in the Declaration nor the Mandate that copied the Declaration word for word. However it is well established that the intention of the settlors of a trust is the lodestar to its interpretation. It is likely the British carefully tailored the language of the Declaration and the Mandate to avoid unnecessary stirring up of the Arabs.
The San Remo Resolution, in the second paragraph of subpart (b) shows that the Allied Principal War Powers adopted the method Sacher had recommended. The collective rights to political self-determination consist mainly of the right to set up a government and to administer it. The British had already formed a military government so the Palestine Mandate (the agreement for a trust to carry out the Balfour Declaration), entrusted the administration of government to the British. For how long? Until such time as the trust res was intended to be vested in the cestui que trust (beneficiary), the Jewish People, transferring legal dominion to them. How does one exercise legal dominion over an intangible such as collective political rights? For a tangible trust res, legal dominion is the right of possession. For collective political rights, legal dominion entitles the possessor to set up a government and administer it. The Palestine Mandate gave legal dominion over those rights to the British until the trust standards had been met.
The Partition Resolution of the UN General Assembly is commonly thought to be the roots of sovereignty of the Jewish State. Is it? No. It died at birth when the Arabs rejected it. The UN’s General Assembly has only the authority to recommend, not to legislate. The foundation of the Jewish State’s sovereignty has always been the San Remo Resolution and the Palestine Mandate (Stone, “Israel and Palestine: Assault on the Law of Nations).
Sacher had recommended that the authority of the trustee (Britain) be subject to the supervision of the League of Nations that was to have supervisory oversight. Why? Just in case Britain changed its mind. Structuring the Mandate in that way, as a trust supervised by the League, saved Palestine for the Jews. Had Britain annexed Palestine, its drastic change in policy in 1939 would have blocked Jewish immigration – keeping Jews as a minority and the change to self-government in 10 years proposed in the 1939 White Paper would have resulted in one more Arab state. The League’s Permanent Mandates Commission found the shift was ultra vires – completely outside the scope of the authority granted to the trustee by the Mandate.
The Mandate was a legal instrument that was self-executing. When the legal standards had been met, the beneficial interest was to change into a legal interest. That occurred in 1948 in the area within the Green Line Armistice Boundary and in 1967 for the remainder of the territory defined in the Mandate as Palestine west of the Jordan River. The abandonment of its trusteeship by Britain in 1948 did not end the trust. Resignation of a trustee never does. (Rostow, Historical Approach to the Issue Of Legality of Jewish Settlement Activity, New Republic, April 23, 1990)
If a new trustee is needed, the supervising authority will appoint one as did the UN in the case of Namibia. International Court of Justice (Legal Consequencees for States of the continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970) Advisory Opinion of 21 June, 1971).
Arab irredentists have never accepted recognition of the Jewish state. The recognition of a state may be express or tacit. The latter results from any act that implies the intention of recognizing the new state. Approval of the League of Nations Mandate is such an act based on the the summaries shown in the Memo of the British Foreign Office of December 19, 1917 and that of the American summary circulated at the Paris Peace Talks and approved at San Remo.
The Arabs have expressed their dissatisfaction by threats of violence, actual violence and by fraud. The usual fraud is carried out by publication of bogus legal opinions claiming to show the illegality under international law of Jewish settlements and occupation outside the Green Line and claiming the unilateral right to secede from the Jewish state.
Why arguments based on international law? How many people who pass you on the street know anything at all about international law. Repeated often enough to them it becomes a “poetic truth” that can’t be dented by facts, reason or logic. Judea, Samaria, and East Jerusalem may be occupied, but it is not a “belligerent occupation” as defined in the Regulations under the Hague Convention, nor does voluntary settlement of Jews in these areas, impose the obligations on Israel that it would if they had been deported or transferred.
These are areas that were liberated in 1967 to fulfill the status intended for them at San Remo in 1920 as a part of a Jewish People’s State.
Wallace Edward Brand, JD
Copyright - Original materials copyright (c) by the authors.