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."
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