Monday, August 31, 2015

Foundations of the International Legal Rights of the Jewish People and the State of Israel and Implications for the Proposed New Palestinian State - YJD

Foundations of the International Legal Rights
      of the Jewish People and the State of
      and Implications for the Proposed New
Palestinian State

European Coalition for Israel

New York, NY, November 26th 2012
Prepared for ECI by C. D. Wallace, PhD.


1        Part I: Foundations of the International Legal Rights of the
Jewish People and the State of Israel   1
1.1     The Balfour Declaration   1
1.2     Wilson’s "Fourteen Points" and the League of Nations     3
1.3     San Remo Sessions of the Paris Peace Conference 3
1.4     The Decision of the Principal Allied Powers Relating to the
Mandate for Palestine . . .          6
1.5     The League of Nations and the Mandate for Palestine . . . 10
1.6     The Mandate for Palestine as it Pertains to Jerusalem and
the Old City 12
1.7     Arab Opposition . . .       14
1.8     The 1921 Partition of Palestine . . .      14
1.9     The Treaty of Lausanne . . .      18
1.10   The UN Partition Plan—Resolution 181 (II) and Arab Rejection 18
2        Part II: The Question of a Unilateral Declaration of a Palestinian State   21
2.1     Israel’s War of Independence . . .       22
2.2     The Six-Day War   22
2.3     The "Palestinian" Identity 23
2.4     The "Refugee" Question  25
2.5     The "1967 Lines"   29
2.6     The Disputed Territories  32
2.7     The Settlements Question          35
2.8     The Question of Jerusalem        37
2.9     Commitments to "Permanent Status" Negotiations . . .      41
2.10   The Role of the United Nations 45
Appendices      51


A  The Balfour Declaration        51
B  Article 22 of the Covenant of the League of Nations     53
C The San Remo Resolution     55
D The Mandate for Palestine     57
E  Abstracts: English, French, German and Italian   65



There is perhaps no area in the world more sensitive or strategic to world
security and peace than the
Middle East, and arguably no country or city
more central to this sensitivity than
Israel and its capital and most Holy City
There are as many opinions on the corresponding issues—even legally
speaking—as there are proposed solutions. This is not only true of
itself and the territories it administers, but it extends to the city of
and the many different views concerning its legal status.1
Israel in general
and Jerusalem in particular represent unique circumstances and, in many ways, do not Fit into the normal legal parameters.
Taking Jerusalem, for example, there is no city anywhere that holds such
deep-seated roots of religious and spiritual heritage and emotional and cultural bonds.  These deep roots and the potential threats to their sanctity
play an extraordinarily vital role in that city’s significance and can seem to
"trump" even national and international law norms in terms of relevance.
Why is this so vitally significant?
The Jewish heritage reaches back more than three thousand years, Jerusalem itself having been established perhaps more than 2,000 years before it was captured from the Jebusites by King David about 1,000 BC The Temple Mount in the Old City (in now so-called "East Jerusalem") is the site of the First and Second Jewish sacred Temples, containing the "Holy of Holies"— the most hallowed of all spiritual sites for the Jews. As regards the whole of the Land, expressed in their own words:
The Land of Israel was the birthplace of the Jewish people. Here their spiritual, religious and political identity was shaped.
After being forcibly exiled from their land, the people kept faith
with it throughout their Dispersion (Diaspora) and never ceased to
1For "features" that may explain the reason for these many differences, and "why it is
such a thorny problem in the peace process", see Ruth Lapidoth, "
Jerusalem", in Rüdiger
Wolfram, ed., Max Planck Encyclopedia of Public International Law,, at p. 1.


pray and hope for their return to it and for the restoration in it of their political freedom.
Impelled by this historic and traditional attachment, Jews strove in every successive generation to re-establish themselves in their ancient homeland.2

Jerusalem is mentioned in the Bible by name more than six hundred times in the Old Testament alone, as well as throughout the New Testament, and has always been considered the "capital" for the Jewish people.
The Muslim connection dates back to the oral tradition of Mohammed’s
"miraculous night journey" ("Miraj"), in AD 621, on a "winged creature"
from Mecca to the Temple Mount, accompanied by the Angel Gabriel, thus
making it—with today’s Al-Aqsa Mosque and Dome of the Rock—for many
(though not all3) Muslims, the third holiest site of Islam, after Mecca and
Medina. At the same time, even this "night ride", as referenced in verse 1 of
Sura 17 of the Koran, does not mention Jerusalem at all, only "the farthest
[al-Aqsa] mosque". Since there was no mosque in
Jerusalem at that time, the
"farthest" mosque cannot have been the one now bearing that name on the
Temple Mount in the Old City of ("East") Jerusalem. Still, Islamic tradition
holds fast to this claim. In actual fact, early commentators interpreted the
further place of worship as heaven. The city of
Jerusalem is not once mentioned in the Koran, nor has Jerusalem ever served as the capital of Islam or
of Arab-controlled
Palestine,4 under that or any other name.
The Christians date their heritage from the time of Christ, the Jewish "Founder" of their faith, as well as reaching back to take in the entire history of the Jewish people, which was Christ’s own heritage and which Christians regard as their own, mutually with the Jews. For Christians, the Holy Land is "holy" because that is where Jesus Christ was born, grew up, performed His ministry, was crucified, resurrected and ascended from the Mount of Olives, to which He promised to return.
But while the Christians are "at home" in every land in which they choose
to dwell, and while the Arabs enjoy jurisdiction over vast areas of territory
(twenty-one sovereign Arab States), the Jews have only one area of territorial
2Declaration of the Establishment of the State of Israel, Official Gazette: No. 1, Tel Aviv, 5 Iyar 5708, 14.5.1948, at p. 1.
3This does not apply to the Shia Muslims who number some 150 to 200 million people
worldwide, since they revere Najaf, Karbalah,
Qum, Isfahan, etc., well ahead of Jerusalem.
(Appreciation to Salomon Benzimra, P.Eng., author of The Jewish People’s Rights to the
Land of
, Amazon Book, Kindle, 2011, for this observation, e-mail of 15 June 2011.)
4Arab Palestinians held control over Jerusalem for only twenty-two years, from 1948-


“homeland": the small State of Israel. For the Jewish people, Israel is their only national home and Jerusalem their only Holy City and proclaimed "indivisible" capital. The very term Wailing Wall —- as the Western Wall of the Temple was commonly called prior to the 1967 Jewish recapture of the Temple Mount, under Arab control since 1949—indicates the depth of the emotionally charged significance of this most sacred place for the Jewish people. As regards the whole of the Land, in the words of Dr. Chaim Weizmann (later president of the World Zionist Organization):

As to the land that is to be the Jewish land there can be no question. Palestine alone, of all the countries in which the Jew has set foot throughout its long history, has an abiding place in his national tradition.5

The recognition of the Jewish people’s singularly ancient historic, religious,
and cultural link with an ancestral home has more legal significance than it
may at First appear, and is easily bypassed in the current heated and polarized debate. These religious and spiritual claims are what have thus far
made attempted solutions to territorial and other questions of international
law in this area particularly delicate. The real issues are often lacking in clear
definition and consensual interpretation of the relevant "law", at times even
attributing to it a kind of sui generis (one of a kind, unique or "peculiar") character. International law, in itself, does not rely on religious or cultural ties but
rather on accepted international law norms and standards, which is why the
legal recognition of these historical aspects, in a binding international legal instrument, is so highly significant. It is precisely these age-old historic ties that remain
the most compelling reason for maintaining sovereignty over all the territory the Jewish people
are legally entitled to under international law.
The particular sacredness of this Land to such differing faiths is clearly
demonstrated by the ongoing dispute over the governance of the Holy City
of Jerusalem, from the
Vatican to the United Nations, including periodic
initiatives to give it a separate international legal status as a so-called corpus
separatum. Indeed, because of the delicate and sensitive nature of these "spiritual" connections, Jerusalem is frequently left out altogether from discussions
over other disputed territories such as the "West Bank"6 and (earlier) Gaza.
5Chaim Weizmann, "Essay on Zionism", reprinted in: B. Litvinoff, ed., The Letters and Papers of Chaim Weizmann, University of Israel Press, Jerusalem, 1983 [hereinafter Weizmann Papers], Series B, Vol. I, Paper 28, pp. 134-142, at pp. 139-140.
6The designation "West Bank" was First used by the Jordanians in 1950, after illegally (see Mandate for Palestine, Article 5) annexing the land, to differentiate it from the rest of the country on the east bank of the Jordan River.


The legal arguments will go on and on, with differing interpretations of-
ten even on the same side of the arguments. But the fundamental fact that the
historical claims of the Zionist Organization, based on centuries-old connections between the Jewish people and "Palestine", were given recognition in a
small town on the Italian Riviera named San Remo, in 1920, and confirmed
unequivocally by the terms of the League of Nations Mandate for Palestine
in 1922, takes on enormous significance when questions of territorial rights
The ongoing and never-ending legal arguments and political posturing
on both sides of the question of the "
Palestine" statehood issue will not be
resolved in these pages. Yet if the above basic truths with regard to ancestral
territory are ignored, all the legal arguments in the world will not bring about
an equitable solution. Thus it is important to see in what way(s) this most
significant factor of historical ties has been endowed with a legal character
and status that under gird Israel’s legitimate rights in its Land as it confronts
today’s territorial conflicts.
While there is no way that the complex current political issues, a culmination of centuries of conflict and legal ambiguities, can be adequately dealt
with in one brief exposé, one thing is certain: laws may change, perceptions
may vary, but historical fact is immutable. Therefore, for the special case
Israel and Palestine, we need to look at fact rather than opinion and seek
to avoid the promulgation of law that can result from persistent pressures of
often misguided, misinformed and/or skillfully manipulated public opinion.
Thus our mission here is not to attempt to pronounce legal judgments or to offer legal opinions, where even the best legal minds have not been able to achieve consensus, but rather to proclaim international legal truths in a largely political environment that is too frequently polluted with distortions of the truth and outright untruths.
A correlated intent here is to show where Israel’s age-old historic links with the land intersect
with legal parameters to give effect to its international legal status in the face of current political
Accordingly it should be understood from the outset that the following is in no way intended to present itself as an exhaustive coverage of the many-faceted and age-long disputed issues relating to this territory. It is meant primarily as a wake-up call and/or reminder of the fundamental international legal rights of the Jewish people that were conferred beginning at the San Remo Conference in 1920 and that had threatened to all but slip into obscurity in the current debate, despite the fact that these rights have never been rescinded.
To accomplish these aims, we have only to revert back to the milestone international legal
instrument, the Mandate for
Palestine of 1922, which emerged from the 1920 San Remo
sessions of the Paris Peace Conference of 1919 and in effect transformed the Balfour Declaration of           1917 (the “Magna Carta” of the Jewish people) into a legally binding international
agreement that changed the course of history forever for the Jewish people worldwide.


Part I: Foundations of the International Legal Rights of the
Jewish People and the State of

Before examining the all-important international legal decisions made at San
Remo in 1920, it is useful to trace back a few years to get a sense of the legal
and political environment that followed in the wake of the dissolution of the
Ottoman Empire in 1918, leading up to these significant legal and diplomatic
events that both emerged from historical roots and went on to shape Jewish
contemporary history.

1.1    The Balfour Declaration

The history of the international legal turning point for the Jewish people
begins in 1917. World War I was exposing a growing need of Jews dispersed
all over the world to have a "national home", and in 1917 Prime Minister
David Lloyd George expressed to the British War Cabinet that he "was convinced that a Jewish National Home was an historic necessity and that every


opportunity should be granted to re-create a Jewish State".7 This ultimately led to Great Britain issuing, on 2 November 1917, a political declaration known as the "Balfour Declaration". This Declaration stated that:

His Majesty’s Government view with favor the establishment in Palestine of a national home for the Jewish people, and will use their best endeavors to facilitate the achievement of this object, it being clearly understood that nothing should be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.

As confirmed by Lord Balfour to Prime Minister Lloyd George:

Our justification for our policy is that we regard Palestine as being
absolutely exceptional; that we consider the question of the Jews out-
side Palestine as one of world importance and that we conceive
the Jews to have an historic claim to a home in their ancient land; pro-
vided that a home can be given them without either dispossessing
or oppressing the present inhabitants
[emphasis added]8

This position was shared by the other Principal Allied and Associated Powers9 who, in the words of Lord Balfour, "had committed themselves to the Zionist program which inevitably excluded numerical self-determination".10 Still, a declaration is not law, and a British declaration is not international. So while it is arguable that certain obligations of the Balfour Declaration were attributable to the British Government, it was neither applicable to other States nor a binding instrument under international law.

7Abraham J. Edelheit, History of Zionism—A Handbook and Dictionary (Boulder, CO: Westview, 2000), at p. 309.
8Pro. Fo. 371/4179.
9See text accompanying notes 13 and 14, infra.
10Pro. Fo. 800/217. See also Documents on British Foreign Policy, 1919-1939, E.L. Woodward
and Rohan Butler, eds., Vol. IV, 1256-1278 (
Reprinted in: Walid Khalidi, ed., at pp. 195,


1.2    Wilson’s “Fourteen Points” and the League of

At the time, the territory known as "Palestine" was still part of the Turkish Ottoman Empire, with which Britain and her allies were at war. Although the British forces entered Jerusalem in December 1917, the war with Turkey in Palestine continued into 1918. Once Britain liberated Palestine from Turkish rule in 1918, it was in a position to implement its policy.
Meanwhile, on 8 January 1918, U.S. President Woodrow Wilson delivered a speech to a joint session of the United States Congress that was to
become known as his "Fourteen Points". Included in these points was the
statement that the "Turkish portion of the present Ottoman Empire should
be assured a secure sovereignty, but the other nationalities which are now
under Turkish rule should be assured an undoubted security of life and an
absolutely unmolested opportunity of autonomous development".11  These
Fourteen Points were accepted by some of the key Allied Powers and "in-
formed" (influenced and were incorporated in part into) certain principles
embodied in the Covenant of the League of Nations.
Thus the League of Nations was a direct result of the First World War, its Covenant or Articles of Organization being incorporated in the Treaty of Versailles, which entered into effect in January 1920.

1.3    San Remo Sessions of the Paris Peace Conference

The following sections on the San Remo Conference and its legacy borrow
heavily upon—in some places recording verbatim or virtually verbatim (with
the full agreement of the author)—Dr. Jacques Paul Gauthier
s monumental
work, Sovereignty Over the Old City of Jerusalem: A Study of the Historical, Religious, Political and Legal Aspects of the Question of the Old City, Thesis no. 725, University
11Woodrow Wilsons Fourteen Points were First outlined in a speech he delivered to a joint session of the U.S. Congress on 8 January 1918. The quote is from Point 12.

of Geneva, 2007.  Part I of the present work draws liberally on Dr.  Gauthiers thorough historical account. While some references to Gauthiers work are precisely cited, others are so interwoven, interchanged, interspersed and integrated with the authors own further research and formulations that it is virtually impossible to do proper justice to Dr. Gauthier in every instance. His indulgence is gratefully acknowledged.
The next important milestone on the road to international legal status
and a Jewish national home was the San Remo Conference, held at Villa
Devachan in San Remo, Italy, from 18 to 26 April 1920. This was a post-
World War I international reconvening of the Supreme Council of the Principal Allied Powers that had met together in Paris in 1919 with the powers of
disposition over the territories which, as a consequence of World War I, had
ceased to be under the sovereignty of the Ottoman Turkish Empire.
The Principal Allied Powers of World War I present at San Remo in 1920
were Great Britain, France, Italy and Japan. The United States had entered
the war as an "Associated Power", rather than as a formal ally of France and
Great Britain, in order to pursue its new policy of avoiding "foreign entanglements".13  Thus while the United States was a member of the "Supreme
Council of the Principal Allied and Associated Powers" of the Paris Peace
Conference, and was known as one of the Five "Great Powers", it is not to
be associated with the term "Principal Allied Powers", of which there were
four.14 These four Powers were represented in San Remo by the Prime Min
isters of Britain (David Lloyd George), France (Alexandre Millerand) and
Italy (Francesco Nitti), and by Japans Ambassador Keishiro Matsui. The
United States was present as an "observer", represented by Robert Johnson,
the U.S. Ambassador to Italy.
The San Remo Conference acted as an "extension" of the Paris Peace
Conference, for the purpose of dealing with some outstanding issues that
had not managed to be resolved in 1919, including certain claims and legal
submissions made by key claimants in Paris, among which Zionist and Arab
delegations. In San Remo, the aim of the Principal Allied Powers was to
consider the claims, deliberate and hand down decisions on the legal recognition of each claim. The fundamental objective of the San Remo Conference, then, was effectively to decide the future of the Middle East following
the collapse of the
Ottoman Empire. In accordance with President Wilsons
"Fourteen Points", it was not the intent of the victorious allies to acquire new
13See Spencer C. Tucker, ed., The European Powers in the First World War: An Encyclopedia (New York: Garland, 1999), at pp. 1232, 1264.
14Accordingly, it will be noted that the Paris Peace Treaties and other post-war peace settlements use the language: "Treaty of Peace between the Allied and Associated Powers and…[e.g. Germany or other treaty partner(s)]".


colonies in the area but rather to establish there new sovereign States, over the course of time.
The Principal Allied Powers in San Remo were charged, inter alia, with responding to the claims that the Zionist Organization had submitted in February 1919 at the Peace Conference in Paris, while taking into consideration the submissions of the Arab delegation. (The Arab and Zionist delegations had pledged to support each others claims.) The claims of the Zionist Organization included a demand for the recognition of "the historic title of the Jewish people to Palestine and the rights of the Jews to reconstitute their National Home in Palestine" (emphasis added).15
The boundaries of the "Palestine" referred to in these submissions included territories west and east of the Jordan River. The Zionist Organization
had requested the appointment of
Great Britain as Mandatory (or Trustee) of
the League in respect of the Mandate over Palestine. The submissions specified that the ultimate purpose of the Mandate would be the "creation of an
autonomous Commonwealth", with the clear understanding "that nothing
must be done that might prejudice the civil and religious rights of the non-
Jewish communities at present established in Palestine, nor the rights and
political status enjoyed by the Jews in all other countries".16
The policy to be given effect in the Mandate for Palestine was to be consistent with the Balfour Declaration in recognizing the historic, cultural and
religious ties of the Jewish people to the Holy Land and the fundamental
principle that Palestine should be the location of the re-established national
home of the Jewish people. It is particularly relevant to underline the inclusion in the terms of the Mandate (through Article 2) of the fundamental
principle set out in the Preamble of this international agreement that:
recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country…[emphasis added].
Similarly consistent with the Balfour Declaration, as reiterated in the sub-
missions to the Paris Peace Conference, the Mandates Preamble retained the
condition that: "nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights
and political status enjoyed by Jews in any other country". This conferred
no new rights on either the non-Jewish inhabitants of Palestine or the Jewish populations in other countries; it merely preserved existing rights in both
15Opening submission of the Zionist Organization, point (1), Reprinted in: Weizmann Papers, supra note 5, Paper 51, pp. 221-232, at p. 223.
16Ibid, point (4).


cases (see also Articles 2, 6, 9, and 13). The Mandate can nonetheless be regarded as affecting the Jewish people worldwide to the extent that it provided a national home for all Jews everywhere to return to, encouraging settlement in Palestine and therefore immigration (Article 6) and facilitating the acquisition of citizenship (Article 7). It was anticipated that non-Jews would live as a protected population within the Jewish national home.

1.4  The Decision of the Principal Allied Powers Relating
to the Mandate for Palestine

The Allied Powers, assembled in San Remo to deliberate this and other
submissions, recognized that not all areas of the
Middle East were yet ready
for full independence. So they agreed to set up Mandates for each territory,
with one of the Allied Powers to be in charge of implementing each Mandate,
respectively, "until such time as [the territories] are able to stand alone".17
Initially three Mandates were assignedone over both Syria and Lebanon, one over Mesopotamia (Iraq) and one over Palestine. In the First two Mandates, the native inhabitants were recognized as having the capacity to govern themselves, with the Mandatory Power merely serving to advise and facilitate the establishment of the necessary institutions of government. Accordingly, Article 1 of the Mandate for Mesopotamia states:

The Mandatory will frame within the shortest possible time, not exceeding three years from the date of the coming into force of this Mandate, an Organic Law for Mesopotamia. This Organic Law shall be framed in consultation with the native authorities, and shall take account of the rights, interests and wishes of all the populations inhabiting the mandated territory [emphasis added].

The language notably differed in the case of the Mandate for Palestine, in which it was specifically stipulated in Article 4 that:

17See San Remo Resolution, Appendix C, para. (c).


An appropriate Jewish agency shall be recognized as a public body
for the purpose of advising and co-operating with the Administration of Palestine: in such economic, social and other matters
as may affect the establishment of the Jewish national home and the
interests of the Jewish population in Palestine, and, subject always to the
control of the Administration, to assist and take part in "the development of the country". The Zionist organization, so long as its
organization and constitution are in the opinion of the Mandatory appropriate, shall be recognized as such agency [emphasis
So while the Preamble states that it is "clearly understood that nothing
should be done which might prejudice the civil and religious rights of existing non-Jewish communities in
Palestine", the political authority was explicitly vested in the Jewish people, with the ultimate objective of the establishment of the Jewish national home. The language of the Mandate persistently
refers specifically to the reconstituted "national home" for the Jewish people.
Although the Jewish people were part of the indigenous population of
Palestine, the majority of them at that time were not living in the Land. At the
same time, while the civil and religious rights of the Arab and other inhabitants were safeguarded, including voting rights, no sovereign political rights
were assigned to them. (It is of significance that the Mandate did not distinguish these non-Jewish inhabitants similarly as "a people" or as lacking a "national home".)
Thus the Mandate for Palestine differed significantly from those established for the other former Ottoman Asiatic territories, setting out how the
Land was to be settled by the Jewish people in preparation for their forming a viable
nation within the territory then known as "
Palestine".18 The unique obligations of the Mandatory to the Jewish people in respect of the establishment of their national home in Palestine thus gave a sui generis (one of a kind, unique) character to the Mandate for Palestine.
It is also important to note that, pursuant to Article 5 of the Mandate:
[N]o Palestine territory shall be ceded or leased to, or in any way placed under the control of the government of any foreign Power [emphasis added].
So having considered the claims, deliberated and reached a decision, the
parties to the San Remo Conference produced binding resolutions relating to the
recognition of claims to the Ottoman territories presented in
Paris. These
18It should be noted that the geographical area of Palestine was not identical to that which pertained when it was part of the Ottoman Empire, the borders being left undefined.


members of the Supreme Council thus reached an agreement that had the force of a legally binding decision of the Powers with the right to dispose of the territories in question.
Accordingly, the Principal Allied Powers, in conformity with the provisions of Article 22 of the Covenant of the League of Nations, decided to
entrust to Great Britain the Mandate for Palestine which involved a "sacred
trust of civilization" in respect of "the establishment in Palestine of a national home for the Jewish people",19 thus confirming the decision made a few months earlier by these same Powers at a conference in London in February of that year.
The decision made in San Remo was a watershed moment in the history of the Jewish people, who had been a people without a home for some
two thousand years. From the perspective of Dr. Chaim Weizmann, president of the newly formed Zionist Organization and later to become the First
President of the State of Israel, the decision made relating to the destiny of
Palestine at the San Remo sessions of the Paris Peace Conference was a turning point in the history of the Jewish people. In Weizmann’s own words:

[R]ecognition of our rights in Palestine is embodied in the treaty
Turkey,[20] and has become part of international law. This
is the most momentous political event in the whole history of our
movement, and it is, perhaps, no exaggeration to say in the whole
history of our people since the Exile. For this great declaration
of deliverance we have to thank the Allied and Associated Powers
To the Zionist Organization of America, the decision of the Supreme Council of the Principal Allied Powers "crown[ed] the British declaration[22] by enacting it as part of the law of nations of the world".23
There are a number of points that should be noted concerning the San Remo decision.24
19Minutes of Meeting of the Supreme Council of the Allied Powers in San Remo at the Villa Devachan—25 April 1920 (under "It was agreed-… (b) That the terms of the mandates article should be as follows:").
20The reference here is to the Treaty of Sèvres (see note 27, infra).
21From Weizmanns speech to the annual Zionist conference of July 1920, Reprinted in: Weizmann Papers, supra note 5, Paper 58, pp. 290-296, at p. 290.
22The reference here is to the Balfour Declaration (see Appendix A, infra).
23Statement of the Zionist Organization of America, PRO.FO, 371/5114.
24These points are derived from a lecture by Howard Grief in San Remo on 24 April 2010, as noted by Roy Thurley, "90 Years On: Legal Aspects of Jewish Rights in the Mandate for Palestine", CFI Communications, Eastbourne UK, 2010, at pp. 4-5.


1.       For the First time in history, Palestine became a legal entity. Hitherto it
had been just a geographical area.
2.       All relevant agreements prior to the San Remo Conference were superseded. (Although not all specifically named at the Conference, this
          would include both the Sykes-Picot agreement25 and the Feisal-Weiz   mann agreement.26)

3.       The Balfour Declaration, which had been given recognition by many
          Powers prior to
San Remo, achieved international legal status.
4.       Jewish people" were designated as beneficiaries of a sacred trust in the
          Mandate, the First step on the road leading to national sovereignty, even
          though most of the Jews had not yet returned to their Land.

5.       Henceforward, transfer of the title on Palestine could not be revoked,
          either by the
League of Nations or the United Nations as its successor,
          unless the Jewish people should choose to give up their title.

6.       The San Remo decisions were incorporated into the Treaty of Sèvres,27
          signed on 10 August 1920 by, inter alia, the four Principal Powers and
          Turkey. [Note: Although the treaty was never ratified by
          the same parties (including
Turkey) did sign and ratify the superseding
          Treaty of Lausanne in 1923.29]
7.       The Arabs gained even greater rights in Lebanon, Syria and Mesopotamia, as they were considered ready, or near ready, for autonomy.

25The Sykes-Picot Agreement of 1916 (in official terminology, "the 1916 Asia Minor
Agreement") was a secret agreement reached during World War I between the British and
French Governments, with the assent of imperial Russia, defining their respective spheres of
influence and control in Western Asia after the expected downfall of the Ottoman Empire
during World War I.
26The Feisal-Weizmann Agreement of 1919, signed by Emir Feisal (son of the King of
Hedjaz) and Chaim Weizmann (later president of the World Zionist Organization) was part
of the Paris Peace Conference of 1919, settling disputes stemming from World War I. It is
noteworthy that, although it was short-lived, the agreement was for Arab-Jewish cooperation
on the development of a
Jewish homeland in Palestine and an Arab nation in a large part of the Middle
, not in Palestine.
27The Treaty of Peace Between the Allied and Associated Powers and Turkey, signed at Sèvres, 10 August 1920, The Treaties of Peace 1919-1923, Vol. II, Carnegie Endowment for International Peace, New York, 1924.
28The Treaty of Sèvres was annulled in the course of the Turkish War of Independence. 29See Part I, section 9, infra.


8. The San Remo decision marks the end of the longest colonized period
in history, lasting around 1,800 years.
With reference to the historic connection of the Jews with Palestine, as recognized in the Mandate, Churchill wrote in his White Paper of 1922, shortly before the Mandates adoption by the League of Nations:
…it is essential that [the Jewish community in Palestine] should
know that it is in Palestine as of right and not on sufferance. That
is the reason why it is necessary that the existence of a Jewish National Home in Palestine should be internationally guaranteed,
and that it should be formally recognized to rest upon ancient
historic connection.30

1.5    The League of Nations and the Mandate for

The ultimate Mandate for Palestine approved by the Council of the League of Nations on 24 July 1922 explicitly refers back to the decisions of the
Supreme Council of the Principal Allied Powers of
25 April 1920. The Man-
date begins: "Whereas the Principal Allied Powers have agreed…". Upon
approval by the League Council, the Mandate became binding on all Fifty-one members of the League. Since the
United States officially endorsed the
terms of the Mandate but had not joined the League of Nations, special negotiations between Great Britain and the United States with regard to the
Palestine Mandate had been successfully concluded in May 1922 and approved by the Council of the League in July. The United States ultimately
signed a bilateral treaty with Britain (on 3 December 1924),31 actually incorporating the text of the Mandate for Palestine, thus completing its legal
alignment with the terms of the Mandate under the League of Nations.
30The Churchill White Paper of 1922, London: HMSO, Cmd 1700, "British Policy in Palestine", published June 1922, reprinted in: Weizmann Papers, supra note 5, Paper 80, pp. 415-420, at p. 417.
31The Anglo American Treaty of 1924, 44 Stat. 2184; Treaty Series 728.


This act of the League Council enabled the ultimate realization of "the
long cherished dream of the restoration of the Jewish people to their ancient
land" and validated “the existence of historical facts and events linking the Jewish people to
Palestine. For the members of the Supreme Council, these historical facts were
considered to be accepted and established" (emphasis added).32 In the words of
Neville Barbour, "In 1922, international sanction was given to the Balfour Declaration by the issue of the Palestine Mandate".33
In actual fact, the Mandate went beyond the Balfour Declaration of 1917.
The incorporation, in the Preamble of the Mandate, of the principle that
Palestine should be reconstituted as the national home of the Jewish people rep-
resented a deliberate broadening of the policies contained in the Balfour Declaration, which did not explicitly include the concept of reconstitution. It is of
some interest that, while the word "reconstitute" was absent from the Balfour
Declaration, it was actually Lord Balfour himself who ensured the inclusion
of this concept in the Final, legally binding Mandate. Thus it was not a new
idea, "grafted on" at the last moment, but was well deliberated. The ultimate
effect was that the rights of the Jewish people under the Mandate for Pales-
tine were thereby greater than the rights contemplated in its source document,
the Balfour Declaration. According to Abraham Baumkoller:
[T]he choice of the term "reconstitute" clearly indicates that in the
eyes of the Council, it was not a question of creating something
new, but of admitting the reconstitution of a situation that already
existed ages ago. This idea coincides, if you will, with the notion of "historic ties", even if these are not altogether identical
[emphasis added].34
In addition to the insertion of the "reconstituting" language, the phrase in the Mandates Article 2: "…will secure the establishment" (of the Jewish national home, as laid down in the Preamble of the Mandate) could equally be said to go beyond the Balfour Declaration which uses the considerably milder language: "…view with favor the establishment in Palestine of a national home for the Jewish people" and "will use their best endeavors to facilitate the achievement of this object".
Looking beyond the details, the important point is that the primary objective of the Mandate to provide a national home for the Jewish people—including Jewish people dispersed worldwide—in their ancestral Land, had been fulfilled.
32Gauthier, supra note 12, at p. 824; see also ibid., Chapter IV, Section III.5.
33Neville Barbour, Nisi Dominus— A Survey of the Palestine Controversy (London: George G. Harrap, 1946), at p. 5.
34Abraham Baumkoller, Le mandat sur la Palestine (Paris: Rousseau, 1931), at p. 150 [translated into English from the original French by the present author].


The Arab people, who already exercised jurisdictional sovereignty in a large number of States,35 were guaranteed protection of their civil and religious rights under the Mandate as long as they wished to remain—even after the State of Israel was ultimately formed in 1948—including citizenship if they so chose. Moreover, for the Arab population, Trans-Jordan had meanwhile been added as a territory under Arab sovereignty, carved out of Palestine itself, the very mandated territory at issue, prior to the actual signing of the Mandate in 1922 under the League of Nations.
In sum, the Mandate for Palestine, approved by the Council of the League of Nations in July 1922, was an international treaty and, as such, was legally binding. The International Court of Justice (I.C.J.) has since confirmed that the Mandate instrument "in fact and in law, is an international agreement having the character of a treaty or convention".36

1.6    The Mandate for Palestine as it Pertains to Jerusalem
and the Old City

The rights granted to the Jewish people in the Mandate for Palestine relating to the establishment of the Jewish national home were to be given effect in all parts and regions of the Palestine territory. No exception was made for Jerusalem and its Old City, which were not singled out for special reference in either the Balfour Declaration or the Mandate for Palestine, other than to call for the preservation of existing rights in the Holy Places. As concerns the Holy Places, including those located in the Old City, specific obligations and responsibilities were imposed on the Mandatory.
It follows that the legal rights of the claimants to sovereignty over the Old
City of Jerusalem similarly derive from the decisions of the Principal Allied Powers in San Remo and from the terms of the Mandate for Palestine approved
by the Council of the
League of Nations. In evaluating the validity of the

35The Arab people have twenty-one sovereign States.
36See International Court of Justice, South West Africa Cases (Preliminary Objections),
I.C.J. Reports (1962), at pp. 319, 330-332.


claims of Israel relating to the Old City, the Council decision is of great significance from the perspective of the rights and obligations that it created under international law. In the view of Oxford international law professor Ian Brownlie, "in many instances the rights of parties to a dispute derive from legally significant acts, or a treaty concluded very long ago".37 As a result of these "legally significant acts", there are legal as well as historical ties between the State of Israel and the Old City.
The intellectual ties were further solidified by the official opening of the Hebrew University on 1 April 1925 in Jerusalem, attended by many dignitaries, including the Universitys founding father, Dr.  Chaim Weizmann, Field Marshall Allenby, Lord Balfour, Professor William Rappard and Sir Herbert Samuel, among many other distinguished guests. According to Dr. Weizmann, addressing the dignitaries and some twelve thousand other attendees at this memorable event, the opening of the University in Jerusalem was "the distinctive symbol, as it is destined to be the crowning glory, of the National Home which we are seeking to rebuild"38
In addition to the legal, historical and intellectual heritage, in the words of
Jerusalem scholar Dr.  Jacques Paul Gauthier: "To attempt to solve the
Jerusalem / Old City problem without taking into consideration the historical and religious facts is like trying to put together a ten thousand piece puzzle
without the most strategic pieces of that puzzle"39 In his monumental work
Sovereignty Over the Old City of Jerusalem: A Study of the Historical, Religious,
Political and Legal Aspects of the Question of the Old City,40 Dr. Gauthier offers an
exhaustive review of these historical/spiritual/political/legal bonds,41 emphasizing the "extraordinary meaning" of the Old City of Jerusalem and the
temple to the Jewish people.42
Indeed, with respect to the question of the Old City, the historical facts
and the res religiosae (or things involving religion) are rendered legally relevant
by the decisions taken at the San Remo sessions of the Paris Peace Conference, together with the terms of the Mandate for Palestine. Notwithstanding
the fact that historical, religious or other non-legal considerations may not be
considered relevant or sufficient to support a legal claim normally in interna
tional law cases, these aspects of the issue of the city of Jerusalem are relevant
in evaluating the claims of
Israel and the Palestinians relating to sovereignty

37Ian Brownlie, Principles of Public International Law, 5th ed (Oxford: Clarendon Press, 1998), at p. 129.
38Reprinted in: Weizmann Papers, supra note 5, Paper 87, pp. 442-445, at p. 445. 39Gauthier, supra note 12, at p. 806.
40See ibid.
41See ibid., Chapter II, Section II, at p. 812.
42See ibid., Chapter II, Section I.


over the Old City, just as much or perhaps even more than over the entire State of Israel and the Holy Land, as noted in the Introduction.

1.7    Arab Opposition

The Arabs of Palestine did not want to give up any of the land and, among
other objections, generally took the position that the terms of the Mandate
Palestine relating to the establishment of a Jewish national home there
contravened the provisions of Article 22 of the Covenant of the League of
(setting up the Mandates). This argument is, however, not valid regarding the Mandate for Palestine, since the Principal Allied Powers who
were the founders of the League of Nations and the authors of its Covenant
had specifically approved the inclusion of the policies of the Balfour Declaration in the Mandate for Palestine in San Remo in April 1920. The members
of the
League of Nations did not challenge the validity of this Mandate after
it was approved by the Council of the League in July 1922. The Council was
very much aware of the objections of the Arabs of Palestine when it decided
to approve the terms of the Mandate.

1.8    The 1921 Partition of Palestine

One possible exception regarding the Mandatorys obligations was that
relating to the "territories lying between the Jordan and the eastern boundary
of Palestine" (Article 25). In March 1921, in Cairo, Great Britain decided
to partition the mandated
territory of Palestine, for international political


reasons of its own.43  Article 25 of the Mandate gave the Mandatory Power
permission to "postpone or withhold" most of the terms of the Mandate in
the area of land east of the Jordan River ("Trans-Jordan"), if it did not consider them to be applicable. Great Britain, as Mandatory Power, exercised
that right.
The Palestine partition proposal was approved by the Council of the League of Nations on 16 September 1922. Thus from 1921-1922 there was not yet any effective "partition", only a separate administration. The Zionist Organization presented its objections to this partition decision because part of the "Promised Land" was located on the east bank of the Jordan River (referred to in Hebrew as Everhayarden). Therefore,

…to all intents and purposes [Trans-Jordan was] an integral part of
Palestine. We do not differentiate in our sentimental and historical
relation between west and east of the Jordan [emphasis added].44

Sir Hersch Lauterpacht—one-time Cambridge international law professor and ad hoc judge at the International Court of Justice, and considered
one of the leading international lawyers of the twentieth century—expressed
the opinion that this fundamental modification of the Mandate for Pales-
tine made by Great Britain and later approved by the Council of the League
of Nations contravened the terms of the Mandate for Palestine, which was
international treaty concluded between the Principal Allied Powers and the
Mandatory Power. For Lauterpacht, the consent of the Principal Allied Powers should have been obtained prior to modifying one of the material terms
of the Mandate agreement. Furthermore, the modification failed to protect
the rights of
non-Arabs in Trans-Jordan, in marked contrast to the protection
of the rights of non-Jews in the rest of (Jewish) Palestine (later, Israel).
In actual fact, the language of Article 25 ("postpone or withhold") suggests that this provision was meant to be temporary. Whatever the case, once
the territory of Palestine was partitioned, Winston Churchill—British Colonial Secretary at the time—reaffirmed the commitment of Great Britain to
give effect to the policies of the Balfour Declaration in all the other parts of the
territory covered by the Mandate for Palestine west of the Jordan River. This
pledge included the area of Jerusalem and its Old City. In Churchills own words:

43See text accompanying note 48, infra. See also Gilbert, Churchill and the Jews, infra note 48, at pp. 47-51.
44From address by Chaim Weizmann of 21 November 1926 in Boston, reprinted in: Weizmann Papers, supra note 5, Paper 95, pp. 484-498, at p. 491, as quoted by Gauthier, infra note 12, Chapter V, Section II.2.


It is manifestly right that the Jews who are scattered all over the world should have a national centre and a national home where some of them may be reunited. And where else could that be but in the land of Palestine, with which for more than 3000 years they have been intimately and profoundly associated?45

The effect of the partition of the territory covered by the Palestine Mandate was that 90,000 square kilometers out of a total area of about 117,000 square kilometers—representing about 78 percent of the territory under the Mandate granted to Great Britain in Palestine—was placed under partial control of an Arab government.
The increasing tensions during the next decades between Jews and Arabs in the remnant of the territory covered by the Mandate was, according to Chaim Weizmann, partially attributable to the fact that:

…in the dead of the night Trans-Jordan had been separated from
Palestine. When the policy of the National Home was framed, eastern and
western Palestine were considered a unit. Suddenly, more than half [in
fact over three quarters of] the territory was cut off and an embargo
laid on it as far as Jewish colonization was concerned [emphasis

There was no new Mandate for Trans-Jordan.  It was still covered by
the Mandate for Palestine. Thus Great Britain continued as the Mandatory
Power over both Jewish and Arab portions. The real partition was Finally
consummated only in 1946 when, on 25 May, Trans-Jordan achieved independence, relying on the support of Great Britain and the endorsement of
the Council of the League of Nations. For former Israeli Ambassador to the
UN, Professor Yehuda Zvi Blum, the rights vested in the Arab people of Palestine with
respect to the principle of self-determination were fulfilled as a result of this initial partition
of Palestine approved by the Council of the League of Nations in 1922. According to
Professor Blum:

The Palestinian Arabs have long enjoyed self-determination in their own state -
the Palestinian Arab State of Jordan [emphasis added].47

45PRO. CO. 733/2.
46Reprinted in: Weizmann Papers, supra note 5, Paper 116, pp. 590-593, at p. 591.
47On behalf of Israel, in submissions to the UN General Assembly on 2 December 1980, United Nations General Assembly Official Records (GAOR), XXXVth Session, Plenary Meetings, 77th Meeting, 1318, para. 108.


Worth mentioning here, Colonel T.E. Lawrence ("Lawrence of Arabia"),
in a letter apparently written on 17 January 1921, informed Churchills private secretary that he had reached an "agreement" with Emir Feisal, the
eldest son of King Hussein (internationally recognized King of Hedjaz and
self-proclaimed King of all Arabs). Feisal—a man said by Lawrence to be
known for keeping his word—had agreed that in return for Arab sovereignty
in Iraq, Trans-Jordan and Syria, he would abandon all claims of his father to Pales-
tine.48 While such an agreement cannot be enforced under international law,
Great Britain would seem to have accepted this condition in good faith and
acted upon it in a way that had legally binding consequences. As recently as 1981,
King Hussein of Jordan himself exclaimed: "The truth is that Jordan is Palestine
and Palestine is Jordan".49
This is apart from the fact that, before the dissolution of the League
of Nations on 17 April 1946, all the so-called Class A mandates (i.e. those
mandated territories that had been deemed ready or near ready for self-
government), including the Hashemite50 Kingdom of Trans-Jordan, had be-
come autonomous or gained their independence—all except for the territory
covered by the Mandate for Palestine located west of the Jordan River. It
should be remarked that the partition of
Palestine by Great Britain did not
remove the rights under the terms of the Mandate for Palestine of the Arab
inhabitants of the territory of Palestine located west of the Jordan River.

48See Sir Martin Gilbert, Churchill and the Jews, Simon and Schuster, 2007, at pp. 45-46.
This agreement should be taken into account when objections arise that pledges made in
1915 through the so-called "McMahon-Hussein Correspondence" with regard to support by
the British for independence of the Arabs in return for Arab support of the British against the
Turks in World War I were not kept. Although the British position that the area of Palestine
was never included is disputed by the Arabs, the Arabs of that particular region did not in
fact rise up in support of the British against the Ottoman Turks and thus did not in any
case fulfill the conditions. In any event, all formal and informal agreements were ultimately
superseded when territorial arrangements initiated by the Balfour Declaration were raised
to the level of a legally binding instrument by the League of Nations in the Mandate for
49King Hussein, 1981. Further similar statements:            "We are the government of Pales-
tine, the army of Palestine and the refugees of Palestine". Prime Minister of Jordan, Hazza
al-Majali, 23 August 1959. "Palestine and Transjordan are one". King Abdullah, Arab
League meeting in Cairo, 12 April 1948. "Palestine is Jordan and Jordan is Palestine;
there is one people and one land, with one history and one and the same fate". Prince
Hassan, brother of King Hussein, addressing the Jordanian National Assembly, 2 February 1970. "Jordan is not just another Arab state with regard to Palestine, but rather,
Jordan is Palestine and Palestine is Jordan in terms of territory, national identity, sufferings, hopes and aspirations".  Jordanian Minister of Agriculture, 24 September 1980,
quotes assembled by Melanie Phillips, "Jordan is Palestine", The Spectator, 21 June 2010,
50The Hashemites were the most powerful Arab tribe of that time.


History is left to judge how Britain carried out the "sacred trust" vested in her by the League of Nations.

1.9    The Treaty of Lausanne

One year after the approval of the Mandate for Palestine by the Council
of the League of Nations, on 24 July 1923, the Treaty of Lausanne51 was
signed by Turkey. While this Treaty contained no specific reference to Pales-
tine, by its Article 16 Turkey renounced "all rights and title whatsoever over
or respecting the territories" which implicitly included Palestine, "the future
of these territories and islands being settled or to be settled by the parties
Turkey thereby relinquished all rights and title over the region
Jerusalem and its Old City). This paved the way for the entry into
force of the Mandate for Palestine on 29 September 1923, when the British
officially assumed control of the Palestine Mandate.52

1.10    The UN Partition Plan—Resolution 181 (II) and
Arab Rejection

After the Second World War, the League of Nations was disbanded and a
new international peacekeeping body, the United Nations Organization, was
51Treaty of Peace with Turkey Signed at Lausanne, 24 July 1923, The Treaties of Peace 1919-
1923, Vol. II, New York: Carnegie Endowment for International Peace, 1924.
52See League of Nations Official Journal, November 1923, 4th Year, No. 11, Twenty-
Sixth Session of the Council, paras. 1087 and 1092, at pp. 1349, 1355.


set up. This new body inherited all the agreements made by its predecessor, including the Mandate for Palestine. In 1947 Britain decided to terminate her stewardship of the Mandate and notified the United Nations accordingly. It should be noted that the Mandate itself was not terminated but only Britains stewardship of it. In a similar way, Britains stewardship of the Trans-Jordan portion of the Mandate had been terminated the previous year by virtue of that territory gaining its independence.
In November 1947, the United Nations proposed a Partition Plan for
Palestine (Resolution 181 (II)), recommending the setting up— in the remaining 22 percent of the original Palestinian Mandate— of another Arab State, a
Jewish State and an international zone to include Jerusalem. This Resolution
to consider partition, as is the case with all UN General Assembly Resolutions, was only a recommendation.53 It was accepted by the Jewish leadership
but rejected by the Arabs. This important fact is often left out of the debate.
It should also be noted that if UN Resolution 181 were valid today (which it is
not), then so would be the provision in Part III-D that stipulates that after ten
years, Jerusalems international status could be subject to a referendum of all
Jerusalem residents as to a change in the status of the city—a decision that
today, as in the past, would have been made by Jerusalems decisive Jewish
Around the time of the reconstitution of Israel as a State, in May 1948, there was some talk of reviving the Partition Plan, but by the end of Israels forced 1948 War of Independence and the conclusion of the 1949 armistice agreements, Resolution 181 had become largely moot, as the establishment meanwhile of a military armistice-line (the "Green line") had created the expectation of an ensuing negotiation of peace treaties.
A July 1949 working paper of the UN Secretariat entitled "The Future of Arab Palestine and the Question of Partition" noted further that:
The Arabs rejected the United Nations Partition Plan so that any
53Security Council Resolutions are legally binding only where international peace and
security are threatened, as specified in Chapter VII of the Charter ("Action with Respect to
Threats to the Peace, Breaches of the Peace, and Acts of Aggression"). Resolutions made
under Chapter VI ("Pacific Settlement of Disputes") are not legally binding, primarily be-
cause there is no international enforcement mechanism. (See e.g. Hillier, Timothy, Taylor
& Francis Group. Sourcebook on Public International Law, London: Cavendish Publishing, 1998,
at p. 568; Philippe Sands, Pierre Klein, D. W. Bowett, Bowett’s Law of International Institutions,
London: Sweet & Maxwell, 2001, at p. 46; et alia.) Exceptions are made by certain States
that give constitutional or special legal status to the UN Charter and Security Council res
olutions. (See generally, e.g., National Implementation of United Nations Sanctions: A Comparative
Study, Vera Gowlland-Debbas, Djacoba Liva Tehindrazanarivelo, The Hague: Brill, 2004;
John Dugard,
Recognition and the United Nations, Cambridge UK: Cambridge University Press,


comments of theirs did not specifically concern the status of the Arab section of Palestine under partition but rather rejected the scheme in its entirety.54
Israel was ready to declare its independence when it felt it was able to meet all the criteria and international prerequisites of statehood and assume full international legal responsibility.  The actual declaration of statehood was somewhat hastened by the earlier than anticipated withdrawal of British forces, resulting in the State of Israel being born at midnight on 14 May 1948.55  This event basically fulfilled the ultimate aim of the drafters of the San Remo decision nearly thirty years before.
While the primary objective of the Mandate for Palestine had been achieved, the State established in 1948 was not exactly what was contemplated in San Remo in 1920, where the Jewish national home was First envisaged as including Palestinian territory on both sides of the Jordan (as was the case in Eretz Yisrael). In any case, Israels new status as a nation-state, essentially west of the Jordan River, was effectively confirmed and "officially" recognized by the United Nations upon its acceptance of Israel into membership on 11 May 1949, one year after Britains termination of the Mandate and Israels simultaneous declaration of independence.
Thus, Israels statehood does not rely, as many suppose, on the United
Nations Partition Plan of 1947 (Resolution 181). In a word, the primary foundations in international law for the “legal” claim based on “historic rights” or “historic title”
of the Jewish people in respect of Palestine are the San Remo decisions of April 1920, the
Mandate for Palestine of July 1922 and the Covenant of the League of Nations (Article 22).
These instruments alone constitute the "Charter of Freedom" of the Jewish

54UN document A/AC.25/W.19.
55The British had notified the UN of their intent to terminate the Mandate for the remaining part of Palestine (outside of Trans-Jordan) no later than 1 August 1948. Then early in 1948, they announced their resolve to end the Mandate on 14 May. The Jewish leadership, under future Prime Minister David Ben-Gurion, accordingly declared independence on the afternoon of Friday, 14 May 1948, with the declaration to become effective from the end of the Mandate at midnight of that day.


Part II: The Question of a
Unilateral Declaration of a
Palestinian State

In order to get the proper perspective in considering the international legal
framework surrounding the question of a unilaterally declared Palestinian
with the Old City of Jerusalem as its capital, we need First to go to some
of the sources of contention.  As this involves making reference to highly
controversial "core" issues, the main aim here is not to presume to cover all
aspects of each issue and/or offer cursory or facile legal opinions. Indeed,
as mentioned at the outset—and, if anything, far more applicable here— it
should be emphasized that the following is in no way intended to be any-
thing like an exhaustive coverage of the many-faceted and age-long disputed
issues relating to this contested territory. The objective is rather to provoke
some new thinking beyond the current clich
és and to raise awareness over
(innocent or intentional) (miss)usages of language to influence and manipulate public opinion and potentially culminate in ill-founded legally binding
decisions with long-term consequences.

As in Part I, in order to gain a better understanding of the roots of the
current heated debate, a brief look at the historical setting out of which to-
s issues arise is needed. This will help to make sense out of the following
efforts at connecting the historical legal foundations with the current debate.


2.1    Israel’s War of Independence

On 15 May 1948, one day after the creation of the State of Israel, the new
Jewish State was invaded by Five Arab armies (Egypt, Syria, Jordan, Iraq and
Lebanon), afterward reinforced by other Arab forces. By the time hostilities
ceased in January 1949, Israel had lost a significant part of its mandated territory to the invading forces—namely, Judea and Samaria (including the eastern part of Jerusalem) to Trans-Jordan, and the Gaza Strip to Egypt. Such an
invasion, unilaterally or collectively, for the purpose of acquiring territory, is
contrary to international law. Whereas
Egypt only occupied its captured territory, Trans-Jordan illegally annexed Judea and Samaria and called the combined entity the "west bank" in order to link the territory with the east bank
of the
Jordan. This annexation was only recognized by two nations, namely,
Britain and Pakistan. It should be noted that, in any case, recognition of annexation, however limited or general, has no bearing upon the question of
legality under international law.
The areas captured by the surrounding Arab countries by the time of the 1949 Armistice Agreements continued under Arab control until the Six-Day War of June 1967.

2.2    The Six-Day War

The Six-Day War, fought from 5 to 10 June 1967 between Israel on the
one hand and Egypt, Jordan and Syria on the other, was a swift and decisive
victory for Israel, allowing it to reclaim those territories it had lost in 1948.
From Israels perspective, this was a defensive war, since, for example, on
15 May, Israels Independence Day, Egyptian troops had begun moving into
the Sinai and massing near the Israeli border, and by 18 May, Syrian troops
as well were positioned for battle along the Golan Heights. Egypt had also
paved the way for war by ordering the removal of special UN peacekeeping
forces in the Sinai as of 16 May, a withdrawal that, absent any consultation


with the UN General Assembly, was completed within three days.56 Then on
22 May, Egypt had effectively declared war by blocking the Straits of Tiran
in the Gulf of Aqaba, Israels vital trading and supply link to the rest of the
world; and by 31 May, Egypt had moved one hundred thousand of its own
troops plus one thousand tanks and Five hundred heavy guns into the Sinai
"buffer zone".57 The avowed objective was the "extermination of Zionist
existence"58 and the "annihilation" of the "Zionist presence"59 in Israel.
Shortly after the outbreak of war, Jordan also declared war on Israel. These declarations of war gave rise to the right of military self-defense and legitimized the recapture of the territories Israel had lost in 1948. First, Israel was not acquiring territory as an aggressor, but rather in a defensive war which, like its War of Independence nineteen years earlier, had been forced upon it by the surrounding Arab nations desiring to annihilate it. Secondly, the recaptured areas were a part of the territory rightfully restored to Israel in fulfillment of the Mandate for Palestine.
In fact, after returning the Sinai to Egypt in the peace agreement of 26
March 1979
, the territory under Israeli control was almost identical to that
which comprised the Mandate for
Palestine allotted to it west of the River
Jordan in 1922.  Israel ultimately also withdrew from the Gaza Strip, on
12 September 2005, but did not transfer control to any other State. Thus,
legally, the Gaza Strip remains part of Israels territory, even though it is not
occupied by it at this time.

2.3    The “Palestinian” Identity

Something that is largely overlooked in the current debate is the point to
which equitable resolutions to the issues of today
s Israeli / Arab Palestinian

56See Martin Gilbert, Israel, A History (London: Black Swan, 1998), at pp. 366-367.
57See Martin Gilbert, Atlas of the Arab-Israeli Conflict, 6th ed.                                    (Oxford: Oxford University
Press, 1993), at p. 67.
58The Voice of the Arabs radio station, 18 May 1967, as recorded in Isi Leibler, The Case For Israel (Australia: The Globe Press, 1972), at p. 60.
59Syrian Defense Minister Hafez Assad, 20 May 1967, as recorded in ibid.


conflict is exacerbated by linguistic hyperbole, factual distortion or pure political maneuvering and calculated rhetoric.
Take for example the word "Palestinians" itself.               "Palestine" is actually a
land the Jews have called "Eretz-Israel" (the "Land of Israel") for over three
thousand years. The name "Palestine" was actually First applied in Greek
and Roman texts. At the time of the
San Remo decision and the resulting
Mandate for Palestine, the territory then known as "Palestine" was attributed
exclusively to the Jewish people for the "reconstitution" of their national home.
Indeed, this was the very purpose of the Mandate for Palestine and its pre-
cursor the Balfour Declaration. While care was taken to protect the rights
of Arab inhabitants, the Jews alone were the people singled out for the creation of a national home within the territory then known as Palestine. This
fact is seriously clouded by the linguistic extension of the name "Palestinian"
solely to the present-day remnant and descendants of those Arabs who Fled or
otherwise left the territory of the former greater
Palestine (see next section).
"Palestine" was the name applied to the entire mandated territory at the time that Israel came under the League Mandate (i.e.  all Jewish inhabitants of that territory were equally "Palestinians"). This means that when the Mandate was created there were effectively both "Palestinian Jews" and "Palestinian Arabs", as well as other inhabitants of the territory.
At the time of the Mandate, it would have been more accurate to refer
to "Palestinian Jews" and "Palestinian Arabs" (along with the various other
non-Jewish inhabitants). But owing to the creation of the State of Israel, the
Palestinian Jews reclaimed their ancient name of "Israelis" while the non-
Jews (mainly but not all Arabs) continued under the name "Palestinians",
with the foreseeable result that they are now viewed as being the rightful
inhabitants of the Land.
Thus by virtue of word association, the strong and distinct but erroneous impression is created that it is the (Arab) "Palestinians" who are the real "titleholders" to the territory and that they have been displaced by an aggressive foreign occupying power with no natural or historical claim to the land. In actual fact, the Land called "Palestine" covers territory that the Jews have called the "Holy Land" since well before the name "Palestine" was First used by the Greeks and Romans.
The truth is that the territory once known as "Palestine" has never—
either since this name was applied or before—been an Arab nation or been
designated to become a sovereign Arab nation. Yet this nomenclature carries with it great psychological impact, with the inference that it is the former
Arab inhabitants of Palestine that are the true "Palestinians", that they there-
fore uniquely belong in "Palestine" as a distinct "people", and that they have
been displaced from territory that was
their ancestral heritage (although they

controlled territory there for only twenty-two years), rather than that of the Jewish "Palestinians" who in actual fact inhabited the Land for thousands of years and had no other "home".

2.4    The “Refugee” Question

A simple but long-accepted legal definition of refugee is "a person who Flees
or is expelled from a country, esp. because of persecution, and seeks haven in
another country"60 It must be recalled that the principal 1948 "refugee problem" was the direct result of the invasion of ultimately all the Arab League
nations61 upon the termination of the British Mandate and the resulting declaration of independence creating the modern State of Israel,62 not as a result
of any policy or practice of systematic persecution of Palestinian Arabs by
Palestinian Jews / Israelis.
The new Jewish State had been quickly recognized by the Soviet Union,
the United States and many other countries, but not by the surrounding Arab
States, which immediately attacked the newborn State of Israel, resulting in
the predictable outflow of Palestinian refugees—both Jewish and Arab. The
Arab States provided little help to Palestinians who became refugees as the
result of their own invasion. It was only Jordan, with understandably the
largest Palestinian refugee community in the world, that early on extended
full citizenship to all Palestinians who Fled across the river into Jordan or
who remained in the western areas of
Palestine controlled by Jordan. Yet
even Jordan—itself, after all, former Palestine and already home to many
Palestinians—later revoked many Palestinian refugee citizenships, regarded
by many to be in contravention of international law and human rights.
Further, it should be emphasized that Arab Palestinians were not the only
ones forced to Flee the nascent State of Israel under the multi-pronged Arab
attack. Jewish inhabitants themselves were forced to Flee from their long-
desired and at-last-acquired national home. From Jerusalem alone, 25 per-
60Bryan Garner, ed., Black’s Law Dictionary, 8th ed. (Thomson West, 2004). 61See Part II, section 1, supra.
62See Part I, section 10, note 55 and accompanying text, supra.


cent (c. 25,000) of the Jewish population Fled, and their synagogues were destroyed by the invaders. The latter act actually constitutes Arab persecution
of Jews in their own land, in addition to the threat to Jewish lives. Families of
all inhabitants of the land, independent of race, religion or language, Fled to
escape the ravages of war. (Some of the wealthier Arab inhabitants actually
left the country
prior to the outbreak of war, on the inside knowledge of what
was about to occur.63  Indeed, "[m]any Arabs were encouraged to leave by
their own political leaders, who promised them that they would soon be able
to return to their homes, once Israel had been destroyed".64)
In addition to refugees of whatever description Fleeing a newly reborn Israel under siege, the Jewish people suddenly found themselves subject to a
new wave of persecution in Arab and other Muslim lands where there was
no war waging. On 16 May 1948, two days after statehood was declared
by Israel, the New York Times quoted a UN Economic and Social Council re-
port as revealing that: "The very survival of the Jewish communities in certain Arab
and Moslem countries is in serious danger, unless preventive action is taken without delay".
Indeed, Israels declaration of independence caused a surge of "premeditated state-sponsored" persecution of Jewish populations in Arab countries
on such a scale that some nine hundred thousand Jews were obliged to Flee
from their homes in Arab nations "from Casablanca to Karachi",65 thus be-
coming "refugees" to the full "letter" of the definition—
a Fleeing or expelled persecuted people. This side of the refugee question is rarely heard of.
The point here is not one-upmanship. The point here is that these thou-
sands of Jewish refugees, reportedly more numerous than their Arab coun
terparts,66 have long since reintegrated, been reabsorbed into society and
resumed normal and productive lives. This is apart from the fact that since
that time, Jordan (i.e. Arab Palestine) has actually
expelled Jews, which not
only makes them true refugees by definition but which is in direct contravention to Article 15 of the Mandate for Palestine. Yet these are never heard
mentioned in the refugee rhetoric. Article 25, which enabled the establishment of Trans-Jordan for the Palestinian Arabs and ultimately the sovereign
State of Jordan, provides that "no action shall be taken which is inconsistent
with the provisions of Articles 15, 16, and 18". Article 15 reads in part:
No discrimination of any kind shall be made between the inhabitants of Palestine on the ground of race, religion or language. No
63See Letter 1355 from Howard Grief to Donna Bank of 23 January 2011. 64See Gilbert, Atlas of the Arab-Israeli Conflict, supra note 57, at p. 47.
65See Eli E. Hertz, "UN Resolution 194:  Arab Leaders Point to Resolution 194 as
Proof that Arab Refugees Have a Right to Return—False", 13 August 2009, http://www.
66See Grief, Letter 1355, supra note 63.


person shall be excluded from Palestine on the sole ground of his religious belief.

This applies to all of former Palestine.
The present plight of all those living in refugee camps is truly pitiable and rightfully arouses the compassion of the world. As recently as August of 2011, a refugee camp in Syria came under sustained assault from Syrian Government forces. An UNRWA spokesperson said that "many people around the world were shocked by the images of unarmed refugees being shot at as they Fled from their homes, amid the Firing on their refugee camp".67  This was Arabs Firing on Arab refugees.
The fact is that most of the Palestinians identified as "refugees" are well over a generation away from the events that caused the foregoing generation to Flee. Reportedly some 90 percent of the "refugees" now living as such never, themselves, inhabited or Fled the Land of Israel.68  For the most part, the latest generation of those "refugees" situated outside of the Land does not even know Israel; it was never their home.69
There are twenty-one sovereign Arab nations, most of which have already
enjoyed statehood for generations, with the collective capacity and resources
to have long since welcomed their Arab brothers to be reabsorbed into their
own vast homelands, particularly those lands carved out for them at the same
moment in history that Palestine was being set apart for the Jewish national
home. Indeed, in addition to the other San Remo mandated territories that
gained statehood before
Israel and could have absorbed their Arab brothers,
Trans-Jordan was partitioned off specially for the Palestinian Arabs, and in territory originally envisaged for the Jewish national home. This already furnished
a legitimate “new State” for the Arabs within the very territory of Palestine” as it was then
The "refugees" are in effect being inhumanely "used" for a political cause
that is not inherently their own. Their plight has been "high-profiled" for
over six decades, and prolonged interminably as a symbol and silent weapon
for political and territorial gain in the interest of a further incursion into the
Jewish mandated territory. This is not mere supposition. Arab leaders over
the years have expressly stated that the Palestinian refugees are maintained as
a weapon against
Israel. These statements and corresponding policy moves
67See UN News Service, 19 August 2011, "UN provides emergency help to Palestinian
refugees displaced by Fighting in Syria",
68See Grief, Letter 1355, supra note 63.
69Regions with significant "1948 refugee" populations outside of Israel (sometimes known
as "present absentees") and the Gaza Strip and "West Bank" are Jordan, Lebanon and Syria.


speak very powerfully for themselves. For example:70
• In April 1949, at the UN Palestine Conciliation Commission at Lausanne, Israel offered to repatriate one hundred thousand Arab refugees within the framework of a general settlement. The Arab delegations rejected the offer.
• In 1950 the United Nations Relief and Works Agency (UNRWA) proposed resettling the Arab refugees in Sinai, Jordan and Syria, but the Arab Governments rejected this proposal.
• In 1952 the UN Refugee Rehabilitation Fund offered the Arab States $200 million to Find "homes and jobs" for the refugees. The Arab States used some of the money for relief work, but did not even apply for the greater part of the fund.
• Al Siyyad, Beirut, 6 April 1950: "The return of the refugees…forming a powerful Fifth column for the day of revenge and reckoning".
• Abd Allah Al-Yafi, Lebanese Prime Minister, 29 April 1966: "The day of realization of the Arab hope for the return of the refugees to Palestine means the liquidation of Israel".[71]
• Radio Cairo, 19 July 1957: "The refugees are the cornerstone in the Arab struggle against Israel. The refugees are the armaments of the Arabs and Arab nationalism".
The use of "refugees" as political pawns—innocent victims of the deliberate perpetuation of their refugee status, generation after generation, while
their numbers and the related Financial burden on the international commu
nity continue to increase exponentially—is unique in human history. The
1948 refugees and their descendants now reportedly number into the 5 to 6
millions,72 and the issue is being kept alive through simply prolonging the use
of the term "refugees" into every succeeding generation. It is UNRWA and
70The following bulleted quotes are found in Gilbert, Atlas of the Arab-Israeli Conflict, supra note 57, at p. 54.
71On the Right of Return as applied to the Arab Palestinians, see Eli E. Hertz, "UN
Resolution 194: Arab Leaders Point to Resolution 194 as Proof that Arab Refugees Have
a Right to Return—False", 13 August 2009,
72These Figures come from Benny Morris, "Exposing Abbas—Why Israel?", 23 May
. In general, refugee Figures are unreliable, since persons in need of support who be-
came refugees as a result of the 1967 conflict have been added to the roles by UNRWA.
Moreover, deaths are often not reported so as not to reduce aid for the family of the de-


not international law that has conferred refugee status on the descendants of the 1948 refugees. International law has never had to grapple with the question of the perpetual "inheritance" of refugee status.

2.5    The “1967 Lines”

As a point of reference for a new Palestinian State, there is constant mention of withdrawal to the "1967 borders". Firstly, this terminology is legally
incorrect. The word "borders" is generally used in international law to mean
"national boundaries", which the "1967 lines" most decidedly are not. The
definition of a "border" under international law is "a boundary between one
nation (or a political subdivision [of that nation]) and another".73 No such
national boundaries have ever been established for the reborn State of Israel. The 1967 so-called "boundaries" are purely military no-cross lines, expressly repeated in numerous Israeli-Palestinian agreements to neither represent
national borders nor prejudice the future bilateral negotiation of same.
The term "1967 lines" is used to indicate the lines from which the Israeli
military moved into territory to counter the attacks that initiated hostilities on
5 June 1967 (the Six-Day War). They do not—nor did they ever—represent
national boundaries, nor have they ever even been defined as national borders in any legal document pertaining to "Palestine" or Israel. Thus such
"lines" construed as "borders" can be derived from neither "history, law nor
These "lines" (also called the "Green Line" because they were originally
marked out on a map with a green marker) are armistice demarcation lines,
resulting from the armistice agreements signed between
Israel and its Arab
ceased. Other refugees are from time to time registered with the Palestinian refugees, as well as other needy individuals who have never been refugees, at the discretion of UNRWA. (See e.g. UNGA doc. A/2171 of 30 June 1952, General Assembly Official Records (GAOR): Seventh Session, Supp. No. 13 (A/2171), New York, 1952.)
73Black’s Law Dictionary, supra note 60.
74See Alan Baker, "The Fallacy of the 1967 Borders—No Such Borders Ever Existed",
Jerusalem Issue Brief, Vol.            10, No.        17,21 December 2010, at p.                       1.    (Amb. Allen Baker is
former Legal Advisor to Israels Foreign Ministry.)


neighbors Egypt, Jordan, Syria and Lebanon in 1949, following the 1948
War of Independence. These 1949 armistice lines were no more than lines
separating armies and were dictated exclusively by military considerations.
They were never intended to do more than delimit the lines that the military
forces of each affected party were committed not to cross "during the transition to permanent peace in Palestine"75 and until permanent borders could
eventually be negotiated between the respective parties. This transitional, pro-
visional character of the cease Fire lines was emphasized in all of the respective armistice agreements. They remained valid only until the outbreak of
the 1967 Six-Day War.  Accordingly, the most accurate, appropriate and
transparent term for the "Green Line" would be the "pre-1967 armistice lines".
Falsely linking them with the 1967 war—where lost territory was recovered
by the Israeli Defense Forces—by calling them "1967 borders" instead of
1949 armistice lines, fosters the erroneous notion that these are ill-gotten
national "borders", thus highly prejudicing the issue and its outcome.
The exact language of the Israel-Jordan Armistice Agreement, signed on 13 April 1949 and typifying all the respective agreements, reads:

The basic purpose of the Armistice Demarcation Lines is to delineate the lines beyond which the armed forces of the respective Parties shall not move.76 … [as] agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto [emphasis added].77
All of the 1949 armistice agreements expressly provide that such lines
have no political or legal significance that could in any way prejudice future arrangements or agreements under international law. Nothing has ever
changed this. On 28 May 1967 Professor Mughraby wrote in the Beirut Daily
Israel is the only State in the world which has no legal boundaries except the natural one the Mediterranean provides. The rest are nothing more than armistice lines [and] can never be considered political or territorial boundaries.78
In the aftermath of the Six-Day War, even the United Nations was forced
to recognize that the armistice lines were not appropriate for the assurance of
75See UN Security Council Resolution 62 of 16 November 1948.
76Israel-Jordan Armistice Agreement, Article IV(2). 77Ibid., Article VI(9).
78See Baker, supra note 74, at p. 4.


protection against aggression. Accordingly, UN Security Council Resolution 242 of 22 November 1967, which formed the "conceptual foundation"79 for an eventual peace settlement, is aimed at guaranteeing that all States in the region have "safe and secure" borders. Even Resolution 242, which has been interpreted in many different ways, did not seek to determine where those boundaries should be drawn.
The U.S. ambassador to the UN at the time, former Supreme Court Justice Arthur Goldberg, pointed out in 1973 that the fact that the resolution
omitted to call for total withdrawal is in recognition of the fact that "Israel’s
prior frontiers had proven to be notably insecure". Even the Soviet delegate to the
UN, Vasily Kuznetsov, who fought against the Final text, conceded that the
resolution gave Israel the right to "withdraw its forces only to those lines it
considers appropriate".80
Lord Caradon, the British UN Ambassador at the time and the resolutions principal drafter, who introduced it to the Council, stated unequivocally in 1974 that:
It would have been wrong to demand that Israel return to its positions of June 4, 1967, because those positions were undesirable and artiFIcial.81
Eugene V. Rostow, U.S. Undersecretary of State for Political Affairs in 1967 and one of the drafters of the Resolution, stated in 1990 that it and subsequent Security Council Resolution 338:
…rest on two principles, Israel may administer the territory until
its Arab neighbors make peace; and when peace is made, Israel
should withdraw to "secure and recognized borders", which need
not be the same as the Armistice Demarcation Lines of 1949.82
Even the "Road Map",83 initiated by the "Quartet" (the European Union,
the United Nations, the Russian Federation and the United States) in 2003
refers to the still outstanding need to negotiate permanent borders. This document not
only puts off the "borders" question until the second and third phases of
79Eli E. Hertz, "No Return to the 1967 Borders", Myth and Fact, 29 April 2011.
80As excerpted and edited from and cited in Danny Ayalon, "Israels Right in the Disputed Territories", Wall Street Journal, Opinion Europe, 20 May 2011. (Amb. Daniel Ayalon is the Deputy Foreign Minister of Israel.).
83"Performance-Based Roadmap to a Permanent Two-State Solution to the Israeli Palestinian Conflict" of 30 April 2003.


implementation (and only then if a responsible Arab Palestinian leadership has been elected) but it calls initially for only "provisional borders" pending a permanent settlement with "Final status" borders in the third stage, and requiring international recognition.
In a word, the 1967 lines are not "borders" at all, and this word should
not be used to create and perpetuate the impression that Israel has illegally
transgressed the borders of another State, when this is clearly not the case.

2.6    The Disputed Territories

Any discussion of the so-called "occupied territories" has become all but
politically "taboo". Nonetheless, one or two points need to be borne in mind
in the ongoing debate. Suffice it to say that the sentiment and political and
even legal rhetoric is very strong here.  Positions taken on both sides are
adamant. But it must be acknowledged that the widespread use of the words
"occupied territory" with an implied sense of "belligerent occupation" rather
than simply "disputed territory" (which in fact it is) has a major psychological
impact that can result in real and even legal ramifications.
Furthermore, this language and what it (falsely) tends to connote (i.e. "belligerent occupation") totally ignores the international treaty language of "reconstituted", as contained in the Mandate for Palestine. Reconstituted territory precludes "belligerent occupation", even if permanent national borders have yet to be negotiated. A State cannot, by definition, be a "belligerent occupying power" in a territory that is being "reconstituted" in its name, according to the provisions of a legally binding instrument of international law. The territory in question is occupied Israeli territory, not occupied Palestinian territory. This is a perfectly acceptable status under international law and brings with it certain legal responsibilities, on the part of the occupier, toward the inhabitants of the occupied territory.
The definition of "occupied territory" in international law is given in Article 42 of the Hague Regulations:
Territory is considered occupied when it is actually placed under
the authority of the hostile army. The occupation extends only to


the territory where such authority has been established and can be exercised.84
It could be argued that Israels "occupation" of the disputed territories
does not fall under the classic definition of military occupation at all, in that
such "occupation occurs when a belligerent State invades the territory of an-
other State with the intention of holding the territory at least temporarily".85
The territory that Israel reclaimed in 1967 was never rightfully "the territory of another State", nor did Israel obtain it by war of aggression, as noted
above. Indeed, it was territory that had been specifically designated for a
Jewish national home, under the legally binding League of Nations Mandate
Palestine in 1922. Despite the eastern three quarters of the territory then
known as "Palestine" being partitioned off (from territory originally designated in 1920 by the San Remo resolution for the Jewish national home,
with borders to be determined), in order to form the Arab territory of Trans-
Jordan, nothing has altered the Final 1922 League approved Mandate west of
the Jordan or assigned that territory to any State other than Israel.
Under international law, the applicability of the legal regime on "belligerent occupation" (often popularly but erroneously assumed to be the meaning here) enters into effect "as soon as the armed forces of a foreign power have secured effective control over a territory that isn't its own".86 Again, the territory in question here—with exact borders still to be delineated—is that which was set apart for the national home of the Jewish people by the Supreme Council of the Principal Allied Powers at San Remo in 1920.
It is the Regulations of the Hague Conventions of 1907 together with the
1949 Fourth Geneva Convention87 that form the international legal regime
relating to military occupation.  Under these Conventions, the occupying
power assumes, for a limited period, responsibility for the security and well-
being of the occupied territorys inhabitants. The military authorities have
the obligation under international law to maintain public order, respect private property, and honor individual liberties.  Particularly with regard to
the maintenance of public order, armed forces are the normal enforcement
84Hague Convention Number IV Respecting the Laws and Customs of War on Land, 18 October 1907, Regulations, Article 42.
85Wests Encyclopedia of American Law, 2nd ed., c. 2008, The Gale Group, Inc.
86Amnesty International (AI), …While this
definition of "belligerent occupation" as articulated by AI refers to "Iraq: Responsibilities
of the occupying powers", it is of some interest to note that when referring to Israel and
"Occupied Palestinian Territories" in a number of position papers, AI has no regard to this
87Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949 (International Committee of the Red Cross, Geneva).


requisite. In the language of Article 4 of the Geneva Convention (IV), all civilians in occupied territories are the "protected persons" whose rights are to be safeguarded.
Under the current circumstances, it is the responsibility of the Israel Defense Forces (IDF) to maintain peace and order and to assure the safety and
security of both the Jewish and non-Jewish populations, the 1949 armistice
lines serving as temporary "borders" having proved to be insecure and indefensible.
Article 43 of the Hague Regulations states that:

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.88

Note that occupation takes place when "the authority of the legitimate power
[has] in fact passed into the hands of the occupant". It is quite clear that there was
no "legitimate power" in the "West Bank" from 1949 to 1967, since this
territory was illegally annexed by Jordan, with no international recognition
(other than Britain and, possibly, Pakistan) and with no recognition even from
other Arab countries.89
The Deputy Foreign Minister of Israel, Danny Ayalon, points out that the
land now known as the "
West Bank" cannot be considered "occupied" in the
legal sense of the word, as it had not attained recognized sovereignty before
Israels conquest. He goes on to recall that, contrary to some beliefs, there
has never been a Palestinian State, and no other nation has ever established
Jerusalem as its capital, despite its once having been under Islamic control
for hundreds of years.90
While clear "title" to the "West Bank" is adamantly contested on both sides, referring to it as "[belligerent] occupied territory" overtly prejudices the just resolution of the conflict.

88Hague Convention, supra note 84, Article 43.
89Appreciation to S. Benzimra, note 3 supra, e-mail of 15 June 2011.
90This and the following para. are excerpted from Ayalon, supra note 80.


2.7    The Settlements Question

Of course an immediate corollary to the issue of claims to the disputed
territory is that of "settlements". The issue of the legality of the Israeli policy
on settlements is arguably the most high-profile and contentious issue calling
for resolution in the overall Israeli Palestinian debate.  There are as many
opinions as there are sides to the issue, and—as in all areas of the delicate
questions surrounding this highly valued land— there is no "cut and dried"
legal solution.
Beginning after the 1967 war, when Jews started returning to their historic
heartland in the "West Bank"—or Judea and Samaria as the territory had
been known around the world for two thousand years prior to its renaming by
the Jordanians—the issue of settlements arose. U.S. Undersecretary of State
Rostow found no legal impediment to Jewish settlement in these territories,
maintaining that the original Mandate for
Palestine still applies to the "West
". Rostow stated:
[T]he Jewish right of settlement in Palestine west of the Jordan
, that is, in Israel, the West Bank, Jerusalem, was made
unassailable. That right has never been terminated and cannot
be terminated except by a recognized peace between
Israel and
its neighbors. There is no subsequent legally binding instrument
pertaining to the territory at issue that has nullified this right of
Jewish settlement.91

The sensitivities surrounding this question are exacerbated by the very fact that the legality/illegality of such settlements is based on factors that may not follow prescribed international law norms but rather are complicated by the unique nature of the Israeli settlements in particular.
For example, while it is often claimed that such settlements violate Article
49 of the Geneva Convention (IV), the inclusion of this Article in the Convention had a different purpose altogether than to govern circumstances such
as those existing in present-day Israel. Specifically, the intent of the drafters
was to prevent belligerent occupying powers from deporting civilian populations, against their will and for political purposes, into a territory they were
belligerently occupying.
According to the International Committee of the Red Cross:
91See ibid.


It is intended to prevent a practice adopted during the Second
World War by certain Powers, which transferred portions of their
own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories.
Such transfers worsened the economic situation of the native population and endangered their separate existence as a race.
Thus the drafters intent was that of protecting vulnerable civilians in times of armed conflict by creating an international legal instrument that would declare as unlawful all coerced deportation such as that suffered by more than forty million Germans, Soviets, Poles, Ukrainians, Hungarians and others, immediately after the Second World War.
The exact wording of the relevant paragraph (6) of Article 49 reads:
The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.
In the case of Israel, under international law as embodied in the Mandate for Palestine, Jews were permitted and even encouraged to settle in every part of Palestine; they were not deported or forcibly transferred. Accordingly, calling the "East Jerusalem", Judea and Samaria Israeli settlements "illegal" is not an apt application of the Fourth Geneva Convention.
The fact that the original intent of Article 49 of the Convention was not
applicable to the Israeli case for settlements is demonstrated by the perceived
need to insert into the text of the Article—at the initiation of the Arab States,
during the negotiations of the 1988 Rome Statute of the International Criminal Court— of the language "directly or indirectly" (making into a war crime
the "transfer, directly or indirectly, by the Occupying Power of parts of its own
civilian population into the territory it occupies" (emphasis added).92
the continued reference to the Geneva Convention (IV) by the international
community, when it comes to judging the legal status of the Israeli settlements
under international law, ignores the history, legal framework and negotiating
environment surrounding Judea and Samaria (the so-called "West Bank").
In 2010, Palestinian delegates at the United Nations drafted a resolution declaring that Israeli settlements are "illegal and constitute a major obstacle to the achievement of peace". The very fact that it was deemed necessary to articulate this in a resolution, itself implies that this fact is not clearly established under the conventional international legal order.
This sensitive and highly contentious question of settlements is specifically among those slated for the "permanent status" negotiations called for in
92Article 8, para. 2(b)(viii).


the Interim Agreement concluded at Oslo on 28 September 199593 and still
to be held between Israelis and Arab Palestinians. Such negotiations on this
all-important item should not be circumvented by transferring them to the
arena of UN General Assembly resolutions, or by bypassing all organizational channels to directly engage the public forum and the international
community at large, thus evading and ignoring international legal responsibility.

2.8    The Question of Jerusalem

In considering the implications of a possible unilateral declaration of a
Palestinian State with "East Jerusalem" as its capital, of utmost significance
is the fact that, to the Jewish people, "East Jerusalem" is Jerusalem. The
walls of Jerusalem in AD 100, in Crusader times and in the mid-nineteenth
century are virtually the same as the boundaries of the Old City (within
"East Jerusalem") today.  This means that if "East Jerusalem" were to be
partitioned off to become the capital of a Palestinian State, the Jewish people would actually lose their eternal capital and sovereign control over their
eternally sacred holy sites, including their most holy Temple.
Under Israeli control, every area of the country, including the Temple
, is open to all "races, religions or languages". If Jerusalem were to
be incorporated into a Palestinian State, the large Jewish population of "East
Jerusalem" (including the Old City, which is virtually equivalent to the "City
of Jerusalem" up to the mid-nineteenth century) would be forced to leave their
homes, since the Palestinian Authority (PA) chairman Abbas, has stated that
he will not allow Jews to live in a Palestinian State. In a July 2010 news item
we read:
Almost no notice was taken of [a pre-peace-negotiations] decision 93The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip of 28 September 1995, known variously as the "Interim Agreement", or "Oslo II", or the "Taba accord", was the second phase of the process that had begun with the establishment of the Palestinian Authority in Gaza and Jericho in May 1994, setting the stage for the permanent status talks to begin by May 1996.


that the PA chairman Mahmoud Abbas revealed, as he announced clearly that if a Palestinian Authority state is created in
Judea and Samaria [the so-called "West Bank"], no Israeli citizen
will be allowed to set foot inside. The PA chairman also stated
that he would block any Jewish soldiers from serving with an international force stationed on PA-controlled land. "I will never
allow a single Israeli to live among us on Palestines land", Abbas

This would be reminiscent of 1948 when, upon the collective Arab invasion, some 25,000 Jews were forced to Flee Jerusalem. That, at the time,
represented 25 percent of the Jewish population living in Jerusalem. Today
there are reportedly an estimated 225,000 Jews living in eastern Jerusalem.95
The apartheid policy of a new Palestinian State with "East Jerusalem" as
its capital would force all Jews to evacuate their homes in that part of the
This is not unprecedented. Jews have not been allowed to buy land or
even to live in
Jordan, a land originally carved out of the Palestine that was
designated by the Principal Allied Powers in 1920 to provide a national home
for the dispersed Jewish people. Moreover, the current stated policy in the bid
for an additional State for Arab Palestinians within the legally founded Jewish mandated territory west of the river Jordan likewise vehemently excludes
Jewish inhabitants—even those who are already well-established there. This
is in direct contravention to Article 15 of the Mandate for Palestine, still in
effect to this day in these relevant parts. Furthermore, any such discrimination/persecution and outright expulsion would make true Jewish refugees out of legitimate homeland inhabitants by replacing them with the Arab "refugee" descendants, whose "refugee" status is quite overtly perpetuated
for this very purpose, as outlined above.
Throughout history, whenever Jerusalem has been under Jewish or Christian control, it has always been the capital for the Jewish people. Conversely,
whenever Jerusalem hasn't been under Jewish or Christian control, Jerusalem
never been the capital (for the foreign occupants). Other cities have always
been named the capital under Islamic control. Indeed, when Muslims bow

94"Arab League Tries to Score Points for Abbas,Endorses Talks", Arutz Sheva, 29 July
95Chaim Silberstein, MBA, founder and president of "Keep Jerusalem", a public advocacy organization, speaking at "Together for the Sake of Jerusalem" conference on the recognition of the international legal rights of the Jewish People and the State of Israel to the city of Jerusalem, 29-31 August 2011, Musiksaal, Basel, Switzerland.
96See text accompanying note 94, supra.


to pray, they face Mecca, even if that means turning their hind parts toward
Jerusalem, and, if in Jerusalem, to the Temple Mount, which is their practice
irrespective even of the presence there of the Al-Aqsa Mosque and the Dome
of the Rock.
There are many differing opinions—even among international lawyers—
on the legal status, or proposed legal status, of the city of Jerusalem.97 It is
arguably the most desired piece of "real estate" on the face of the earth, owing to the sanctity of its Holy Places and to age-old rivalries for control. This situation is further complicated by the fact that it is frequently exploited for political objectives.
It is of some note that neither the Balfour Declaration nor the Mandate
for Palestine made separate reference to Jerusalem. This in itself would indicate that the Mandate does not single out this city for special treatment, other
than for the "Holy Places". It is in fact the universally recognized sanctity
and "common heritage" of the Holy Places that gave rise to Part III of Resolution 181(II) of 29 November 1947 (the "Partition Resolution"), as concerns
Jerusalem. This Resolution recommended in the relevant provisions that a
"governor" be appointed by the United Nations to administer the Holy City
as a
corpus separatum.  This recommendation was accepted by the national
leadership of the Jewish community of Palestine but categorically rejected by
the Arabs, who responded by initiating attacks on Jewish towns and villages,
including the Jewish communities in Jerusalem.98
In 1949, following renewed debate in the UN General Assembly on the
question of Jerusalem, Israeli Prime Minister David Ben-Gurion announced
in the Knesset that Jerusalem was an "inseparable part of the State of Israel" and
its "Eternal Capital".99 His pronouncement was approved by the Israeli Parliament. Similarly, following the Camp David conference, Israeli Prime Minister Menachem Begin pronounced that "Jerusalem is one city, indivisible, the cap-
ital of the State of Israel", while Egyptian President Anwar Sadat proclaimed
that "Arab Jerusalem is an integral part of the West Bank… and should be under Arab
sovereignty". Note that, for the sovereign State of Israel, Jerusalem is the indivisible capital of the State of Israel, whereas in the counter statement with
reference to the "West Bank", which is not sovereign territory belonging to
the Arabs, it is not a case of "
is" but a concept of "should be". There is no valid
or justifiable legal claim to separating this portion of Jerusalem from Israeli
territory granted under the Mandate for Palestine. (Every nation has the
right to designate its own national capital within its own sovereign territory.)
97See e.g. Lapidoth, supra note 1, from which the following factual details are also largely
98See ibid.
99See Record of Knesset Proceedings, December 1949, Vol. 3, at pp. 220-226, 281-287.


While Jerusalem was mentioned in several declarations/agreements in
1993-1995,100 it was not on the agenda of the 1991 Madrid Middle East
Peace Conference, nor was it mentioned in the controversial UN Security
Council Resolution 242 of 22 November 1967 calling for the withdrawal of
Israeli armed forces from territories occupied in June 1967,
conditional on Arab
belligerence coming to an end. Nor was it named in the Framework for Peace in the
Middle East, agreed in the 1978 Camp David Accords between Israel and
Egypt. In the latter case, Jerusalem was indeed on the agenda, but was left
out of the actual Accords, owing to the inability of the two parties to resolve
their fundamental differences on the highly loaded issue.
In 1980, a new law concerning Jerusalem was adopted by the Knesset:
the Basic Law: Jerusalem, Capital of Israel.101 The Basic Law in fact contains
no new principles; it only codifies the situation as it has long existed and has
persistently been declared and effectuated: (1) that "Jerusalem, complete and
united, is the capital of Israel" (sect. 1); (2) that it is "the seat of the President
of the State, the Knesset, the Government, and the Supreme Court" (sect.
2); and (3) that the Holy Places shall be protected (sect.                3). It additionally
commits to the "development" and "prosperity" of the city (sect. 4). There is nothing in this language, content or actuality that runs contrary to the international legal rights of a sovereign State.
Finally, as expressed by Jerusalem scholar Dr. Gauthier, "the failure of the
Camp David Summit of July 2000 very much underlined the significance of
the question of Jerusalem and its Old City. It was evident that the positions
Israel and the Palestinians regarding the Old City were irreconcilable".102
Pending a resolution of this volatile issue, the non-Jewish residents of the
eastern part of Jerusalem (so-called "East Jerusalem") have, since the birth of
the State of Israel, enjoyed the status of permanent residents of Israel, guaranteeing
the protection of their existing rights and endowing them with social and
cultural benefits, consistent with the Mandate for Palestine that provided for
the safeguarding of civil and religious rights of non-Jews in all of the territory
designated at that time as "Palestine". This has ongoing application in the
modern State of Israel. In fact, upon achieving statehood, Israeli citizenship
was also made available to such residents, through the normal legal process
of "naturalization".

100See e.g. the 1993 Declaration of Principles on Interim Self-Government Arrangements ("Declaration of Principles"), the 1995 Interim Agreement [supra note 93], and the 1994 Israel-Jordan Peace Treaty.
101Passed by the Knesset on the 17th Av, 5740 (30 July 1980), published in: Sefer HaChukkim No. 980 of the 23rd Av, 5740 (5 August 1980), at p. 186.
102See Gauthier, supra note 12, at p. 848; see also ibid., Chapter XIII, Section I.


2.9    Commitments to “Permanent Status” Negotiations

After the Six-Day War, as noted above, UN Security Council Resolution 242 affirmed the right to "secure and recognized boundaries".103 Although there was no provision calling for a return to the 1949 armistice demarcation lines, the intention was that a peace settlement would follow that would include the negotiation of recognized and defensible national borders to supplant the old provisional armistice lines.
While this was not realized at the time, the basic reciprocal undertaking by the Palestinian and Israeli leaderships to negotiate borders between
their respective territories was given formal confirmation by Yasser Arafat,
and in turn by his deputy and later replacement Mahmoud Abbas, as well as
by Saeb Erekat, during the groundbreaking Declaration of Principles on
Interim Self-Government Arrangements (signed inter alia by Abbas) of 13
September 1993. On this date the Palestine Liberation Organization (PLO)
and the Government of Israel acknowledged that the negotiations on the
"permanent status" of the relationship between them would cover:

…remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest.104

In a word, the PLO leadership pledged in 1993 to commit virtually all
the important issues of permanent status to resolution by negotiations only. On
the eve of the signature of the above declaration, Arafat made the following
solemn commitment in a letter to Israeli Prime Minister Yitzhak Rabin:

The PLO commits itself to the Middle East peace process, and to a peaceful resolution of the conflict between the two sides and declares that all outstanding issues relating to permanent status will be resolved through negotiations [emphasis added].105

103UN Security Council Resolution 242, 22 November 1967, para. 1(ii).
104Declaration of Principles on Interim Self-Government Arrangements, 13 September
, Article V, para. 3, Jewish Virtual Library,
105Exchange  of  letters  between  Yasser  Arafat  and  Yitzhak  Rabin,         9  July              1993,


References to "permanent status negotiations" on borders were contained in a series of agreements concluded between the PLO and the Israeli Government over the period of 1993 to 1999. Particularly significant in this respect is the 1995 Interim Agreement (Oslo II)106 by which the parties undertook to not act unilaterally to alter the status of the territories prior to the results of permanent status negotiations:
neither side shall initiate or take any step that will change the status of the West Bank and the Gaza strip pending the outcome of the permanent status negotiations [emphasis added].107
This language was repeated in the 1999 Sharm el Sheikh Memorandum108 (Article 9).
The 1995 Interim Agreement also stipulates that:
…the [Palestinian] Council will not have powers and responsibilities in
the sphere of foreign relations, which sphere includes the establishment
abroad of embassies, consulates or other types of foreign missions
and posts or permitting their establishment in the West Bank or
the Gaza Strip, the appointment of or admission of diplomatic
and consular staff, and the exercise of diplomatic functions [emphasis added].109
A unilaterally declared Palestinian State would therefore be in breach of commitments embodied in an international legal instrument as well as in publicly declared and published official statements and documents.
Moreover, there must be a formal peace treaty between two legally empowered negotiating partners who mutually recognize one anothers existence as legitimate States or international legal entities with all the powers
required to exercise diplomatic functions. Accordingly, the members of the
Quartet (the EU, Russia, the UN and the U.S.) insist that Israel
s negotiating
partner meet three basic undertakings prior to statehood talks: (1) to recognize the State of Israel, (2) to renounce the use of terrorism and violence,
106The Interim Agreement, supra note 93.
107Ibid., Article XXXI (7)
108The Sharm el Sheikh Memorandum on Implementation Timeline of Outstanding
Commitments of Agreements Signed and the Resumption of Permanent Status Negotiations, 4 September 1999, Jewish Virtual Library,
jsource/Peace/sharm0999.html. The aim of this Memorandum was the implementation of
the Interim Agreement (
supra note 93) and of all other agreements between the PLO and Israel since September 1993.
109The Interim Agreement, supra note 93, Article IX (5.a.).


and (3) to recognize the validity of previously negotiated Israeli-Palestinian agreements.
Were it not for the above pre-conditions set by the Quartet, Israeli negotiators would Find themselves sitting across the negotiating table in the
shadow of two extreme antagonists committed to their ultimate if not hasty
demise. The (Fattah) PLO Charter110 calls for the "total liberation" of Pales-
tine and declares that "the struggle will not end until the elimination of the
Zionist entity and the [total] liberation of Palestine". (For "total liberation"
read: "total takeover of control".) The "liberation" of "Palestine" (including
the mandated Jewish territory of the State of Israel) is mentioned twenty-
seven times in the thirty-three articles of the PA Charter/Covenant.
In addition, Article 20 of the Charter reads:

The Balfour Declaration, the Mandate for Palestine, and every-
thing that has been based upon them, are deemed null and void.

The (Hamas) Charter of the Islamic Resistance Movement111 states that
"Israel will exist and will continue to exist until Islam will obliterate it."…112
Thus it would appear that, "rhetorically", Fattah "recognizes" a "Zionist en
tity" and "rhetorically" Hamas "recognizes" the "existence" of Israel. But
the rhetoric is not a civil one. Neither of these pronouncements bodes well
for amicable bilateral negotiations leading to territorially contiguous States
living peaceably behind shared national borders. Moreover, the two major

110The Palestinian National Charter:  Resolutions of  the Palestine National Council, 1-17 July 1968, as translated and reproduced in: "The Avalon Project:  Documents
in Law, History and Diplomacy", Yale Law School, Lillian Goldman Law Library,
online: From  time  to  time
there is talk of having abrogated certain provisions of the Charter, although it is not
clear that the relevant legal requirements for such Charter amendments have been
fulfilled. (See  Recently,
the PA chairman called for the Charter to be amended by September 31 [sic] 2011.
—post UN General Assembly Annual Session earlier that month where the PA chairman anticipated a vote and Security Council approval to recognize a unilateral declaration of Palestinian statehood. But this would seem to be little more than a superficial appeasement of the outspoken criticisms of this volatile language as contained in a national Charter. It appears that there have been no formal Charter amendments at the time of writing, and, in any case, without a clear change of internal rhetoric and of policy and political practice, a change of words only would tend to ring hollow.
111The Covenant of the Islamic Resistance Movement, 18 August 1988, as translated and reproduced in: ibid.
112Ibid., Preamble.


rival Arab ruling factions, Fattah and Hamas, would have to come into a viable and lasting unity government that could effectively represent the Arab Palestinians.

As recently as 26 August 2011, on the occasion of the Iranian "international Quds Day", an annual show of support for the Palestinian Authority, Iranian President Mahmoud Ahmadinejad, restating the position he outlined after taking office in 2005, proclaimed that Israel is a "tumor" to be wiped off the map and urged Arabs in PA-administered areas not to accept a two-State solution, but to strive for a complete "return" of "Palestine". Ahmadinejad declared to worshipers: "Recognizing the Palestinian State is not the ultimate goal. It is only one step forward towards liberating the whole of Palestine”. “A ‘Palestinian State’ is only the First step in the destruction of Israel".113

In addition, while the Israeli Government has even offered citizenship to
all eligible non-Jewish inhabitants, in addition to the safeguards to the "civil
and religious rights of the non-Jewish communities" living in former Pales-
tine, as guaranteed by the Mandate for
Palestine, the reverse is not true. It has
been openly declared by Arab leaders that a Palestinian State would countenance no Jewish inhabitants whatsoever. This reflects what has become a totally
apartheid policy nurtured by such statements as that of Mahmoud Abbas,
chairman of the Palestinian Authority, who has declared: "
I will never allow a
single Israeli to live among us on Palestinian land".114 Not only is such a declaration in
Flagrant violation of this same international treaty (the Mandate) governing
all the territory formerly known as Palestine—and perhaps most particularly
that which was ultimately designated as the Jewish national home, west of the
Jordan River, now challenged by the prospect of a yet further reduction of
Israeli territory—but the Jews would once again become refugees from their
own Land.

113Virtual Jerusalem,; posted:                     26
August 2011.
114Mahmoud Abbas, speaking to Egyptian media on 28 July 2010. See also text accompanying note 94, supra.


2.10    The Role of the United Nations

Prior to the 2011 Annual Session of the United Nations General Assembly in New York, Palestinian Authority chairman Mahmoud Abbas announced his plan to formally request that a UN resolution be presented to
the Security Council and assembled national delegations to "recognize" a
unilaterally declared Palestinian State, with "East Jerusalem" as its capital,
along with UN membership. The end result was that the Security Council, after extended consultations, was unable to reach a common position.
Threats of a veto on the part of the United States and of abstentions on
the part of Britain and France were based on grounds that recognition of a
Palestinian state at this time would undermine the prospects for a bilaterally
negotiated settlement (as called for in the Oslo Accords). Absent the needed
support from these key representatives of the community of nations, the issue
was not pressed to a vote—either in the Security Council or in the General
Assembly—at the UNs 66th Session in 2011. The issue, however, is still very
much alive.
It should be pointed out that, had there been or were there ever to be such "recognition" of the "Palestinians" as a political/statal entity, this would not, in and of itself, constitute the creation of a State of Palestine under international law, any more than the 1947 Resolution 181 (II) (the UN Partition Plan) created the State of Israel.115
Neither does membership in the United Nations per se create, confer or confirm statehood. UN membership requires nomination by the UN Security Council, with the unanimous support of the Five Permanent Members (China, France, the Russian Federation, the United Kingdom and the United States). A contemporary example is that of Kosovo, which is recognized by at least seventy-Five sovereign nations, yet its membership in the UN is precluded by the absence of the support of only one Permanent Member of the Security Council, namely, the Russian Federation.
According to the UN Charter, the General Assembly (GA) does not have
the power to create legally binding decisions. It has only the power to recommend. UNGA resolutions are therefore not legally binding and the General Assembly lacks any and all competence to enact international law. In
fact, the Charter does not authorize even the International Court of Justice
(I.C.J.)—the principal judicial organ of the UN—to create, enact or amend
international law.
115See Part I, section 10 (esp. Final para.) and Part II, section 1, supra.


According to one illustrious former president of the International Court, Professor Judge Schwebel:
The General Assembly of the United Nations can only, in principle, issue "recommendations" which are not of a binding character, according to Article 10 of the Charter of the United Na-
The venerable Judges Sir Hersch Lauterpacht and Sir Gerald Fitzmaurice similarly confirmed the lack of "legislative effect" or "legal power to legislate or bind its members by way of recommendation". Professor Arangio-Ruiz, who wrote what was considered "perhaps the most comprehensive" treatise ever compiled on the normative role of the UN General Assembly, went so far as to conclude that:
[T]he General Assembly lacks legal authority either to "enact"
or to "declare" or "determine" or "interpret" international law
so as legally to bind states by such acts, whether these states be
members of the United Nations or not, and whether these states
voted for or against or abstained from the relevant vote or did not
take part in it.117
At least on one point, then—that of the non-binding character of UNGA resolutions—there is no room for interpretation.
In the Final analysis, there is categorically no practicable solution other
than two legitimate governing entities that recognize and respect one an-
others rightful and legal existence, coming to the negotiating table and dis-
cussing all unresolved outstanding issues on permanent status, as per the relevant international legal commitments and binding instruments, with the aim
of achieving a durable peace with secure and defensible borders.

116See Eli E. Hertz, "ICJ—Bypassing the UN Security Council", Myth and Fact, 5 April
117See ibid.



It is widely assumed that the State of Israel was born as a result of UN Resolution 181 (the UN Partition Plan) of 1947. The truth is that the legal rights of the Jewish people and Israel as a nation Find their foundations solidly embedded in international law well before the very existence of the United Nations, dating back to international legal instruments agreed by the Principal Allied Powers of World War I, meeting in San Remo in April of 1920 as a follow-up to the 1919 Paris Peace Conference.
It was at this place and time that the historical claim of the Jewish delegation to a "national home", as presented to the Supreme Council of the Principal Allied and Associated Powers in Paris, became "essentially legal in character".118 This legal character was codified in a binding international legal instrument in the form of the San Remo Resolution of April 1920, as reconfirmed and strengthened in July 1922 by the adoption of the Mandate for Palestine by the League of Nations.
Despite the fulfillment in May of 1948 of one of the Mandates fundamental objectives, namely, the reconstitution of the Jewish national home,
the Mandates relevant provisions remain valid and legally binding to this
day. Such provisions are, for example, applicable to the determination of
the "core issues" to be negotiated between the two parties on the "permanent status" (or "Final status") of Jerusalem and remaining disputed territory.
Certain clauses regarding
Jerusalem are even explicitly stated to be secured
"in perpetuity".119
In sum, the conflict is not essentially a dispute over "borders" per se; that
is not even really the issue, as demonstrated by the fact that national boundaries have gone so long undetermined. It is a dispute rather over control
of "disputed territory", in the near term, and permanent sovereignty over
legitimate territorial jurisdictions, including the Old City of Jerusalem, in
the long term. The sovereign jurisdiction rests with Israel, in the absence
118Gauthier, supra note 12, with reference to the classification of territorial claims elaborated by Professor Norman Hill.
119See Mandate for Palestine, Appendix D, Article 28.


of some legally defensible cause for abrogating the Mandate for Palestine which contains no provisions for further carving up the territory designated in 1920/1922 by the Supreme Council of the Principal Allied Powers as the sole and unique national home for the Jewish people.




The Balfour Declaration


Article 22 of the Covenant of the
League of Nations

Article 22
To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilization and that securities for the performance of this trust should be embodied in this Covenant.
The best method of giving practical effect to this principle is that the
tutelage of such peoples should be entrusted to advanced nations who by
reason of their resources, their experience or their geographical position can
best undertake this responsibility, and who are willing to accept it, and that
this tutelage should be exercised by them as Mandatories on behalf of the
The character of the mandate must differ according to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances.
Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory.
Other peoples, especially those of Central Africa, are at such a stage that
the Mandatory must be responsible for the administration of the territory
under conditions which will guarantee freedom of conscience and religion,
subject only to the maintenance of public order and morals, the prohibition


of abuses such as the slave trade, the arms traffic and the liquor traffic, and the prevention of the establishment of fortifications or military and naval bases and of military training of the natives for other than police purposes and the defense of territory, and will also secure equal opportunities for the trade and commerce of other Members of the League.
There are territories, such as South-West Africa and certain of the South Pacific Islands, which, owing to the sparseness of their population, or their small size, or their remoteness from the centers of civilization, or their geographical contiguity to the territory of the Mandatory, and other circumstances, can be best administered under the laws of the Mandatory as integral portions of its territory, subject to the safeguards above mentioned in the interests of the indigenous population.
In every case of mandate, the Mandatory shall render to the Council an annual report in reference to the territory committed to its charge.
The degree of authority, control, or administration to be exercised by
the Mandatory shall, if not previously agreed upon by the Members of the League, be explicitly defined in each case by the Council.
A permanent Commission shall be constituted to receive and examine the
annual reports of the Mandatories and to advise the Council on all matters relating to the observance of the mandates.


The San Remo Resolution

It was agreed—
(a)   To accept the terms of the Mandates Article as given below with reference to Palestine, on the understanding that there was inserted in the
ès-verbal an undertaking by the Mandatory Power that this would
      not involve the surrender of the rights hitherto enjoyed by the non-Jewish
      communities in Palestine; this undertaking not to refer to the question of
      the religious protectorate of France, which had been settled earlier in the
previous afternoon by the undertaking given by the French Government
that they recognized this protectorate as being at an end.
(b)   that the terms of the Mandates Article should be as follows:
The High Contracting Parties agree that Syria and Mesopotamia shall, in accordance with the fourth paragraph of Article 22, Part I (Covenant of the League of Nations), be provisionally recognized as independent States, subject to the rendering of administrative advice and assistance by a mandatory until such time as they are able to stand alone.  The boundaries of the said States will be determined, and the selection of the Mandatories made, by the Principal Allied Powers.
The High Contracting Parties agree to entrust, by application of the pro-
visions of Article 22, the administration of
Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory, to be selected by the said Powers. The Mandatory will be responsible for putting into effect the declaration originally made on November
8,1917, by the British Government, and adopted by the other Allied
Powers, in favor of the establishment in Palestine of a national home for
the Jewish people, it being clearly understood that nothing shall be done
which may prejudice the civil and religious rights of existing non-Jewish
communities in Palestine, or the rights and political status enjoyed by Jews
in any other country.


La Puissance mandataire sengage à nommer dans le plus bref délai une Commission spéciale pour étudier toute question et toute réclamation concernant les différentes communautés religieuses et en établir le règlement. Il sera tenu compte dans la composition de cette commission des intérêts religieux en jeu. Le Président de la Commission sera nommé par le Conseil de la Société des Nations.
The terms of the mandates in respect of the above territories will be formulated by the Principal Allied Powers and submitted to the Council of the League of Nations for approval. Turkey hereby undertakes, in accordance with the provisions of Article [132 of the Treaty of Sèvres] to accept any decisions which may be taken in this connection.
(c)  Les mandataires choisis par les principales Puissances alliées sont: la Fran-
ce pour la Syrie, et la Grande-Bretagne pour la Mésopotamie et la Pales-
In reference to the above decision the Supreme Council took note of the following reservation of the Italian Delegation:
La Délégation italienne en considération des grands intérêts économiques que lItalie en tant que puissance exclusivement méditerranéenne possède en Asie Mineure, réserve son approbation à la présente résolution, jusquau règlement des intérêts italiens en Turquie dAsie.


The Mandate for Palestine

The Council of the League of Nations
Whereas the Principal Allied Powers have agreed, for the purpose of giving effect to the provisions of Article 22 of the Covenant of the League of Nations, to entrust to a Mandatory selected by the said Powers the administration of the territory of Palestine, which formerly belonged to the Turkish Empire, within such boundaries as may be Fixed by them; and
Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country; and
Whereas recognition has thereby been given to the historical connection
of the Jewish people with Palestine and to the grounds for reconstituting their
national home in that country; and Whereas the Principal Allied Powers have
selected His Britannic Majesty as the Mandatory for Palestine; and
Whereas the mandate in respect of Palestine has been formulated in the
following terms and submitted to the Council of the League for approval;
Whereas His Britannic Majesty has accepted the mandate in respect of Palestine and undertaken to exercise it on behalf of the League of Nations in conformity with the following provisions; and
Whereas by the afore-mentioned Article 22 (paragraph 8), it is provided
that the degree of authority, control or administration to be exercised by the
Mandatory, not having been previously agreed upon by the Members of the
League, shall be explicitly defined by the Council of the League of Nations;
Confirming the said mandate, defines its terms as follows:


Article 1.
The Mandatory shall have full powers of legislation and of administration, save as they may be limited by the terms of this mandate.
Article 2.
The Mandatory shall be responsible for placing the country under such
political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the
development of self -governing institutions, and also for safeguarding the civil
and religious rights of all the inhabitants of
Palestine, irrespective of race and
Article 3.
The Mandatory shall, so far as circumstances permit, encourage local autonomy.
Article 4.
An appropriate Jewish agency shall be recognized as a public body for the
purpose of advising and co-operating with the Administration of Palestine in
such economic, social and other matters as may affect the establishment of
the Jewish national home and the interests of the Jewish population in Pales-
tine, and, subject always to the control of the Administration, to assist and
take part in the development of the country. The Zionist organization, so
long as its organization and constitution are in the opinion of the Mandatory
appropriate, shall be recognized as such agency. It shall take steps in consultation with His Britannic Majestys Government to secure the cooperation
of all Jews who are willing to assist in the establishment of the Jewish national
Article 5.
The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any way placed under the control of, the Government of any foreign Power.
Article 6.
The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate
Jewish immigration under suitable conditions and shall encourage, in co-
operation with the Jewish agency. referred to in Article 4, close settlement
by Jews, on the land, including State lands and waste lands not required for
public purposes.
Article 7.
The Administration of Palestine shall be responsible for enacting a nationality law. There shall be included in this law provisions framed so as to


facilitate the acquisition of Palestinian citizenship by Jews who take up their permanent residence in Palestine.
Article 8.
The privileges and immunities of foreigners, including the benefits of consular jurisdiction and protection as formerly enjoyed by Capitulation or usage in the Ottoman Empire, shall not be applicable in Palestine. Unless the
Powers whose nationals enjoyed the aforementioned privileges and immunities on August 1st, 1914, shall have previously renounced the right to their
re-establishment, or shall have agreed to their non-application for a specified period, these privileges and immunities shall, at the expiration of the
mandate, be immediately re-established in their entirety or with such modifications as may have been agreed upon between the Powers concerned.
Article 9.
The Mandatory shall be responsible for seeing that the judicial system
established in
Palestine shall assure to foreigners, as well as to natives, a complete guarantee of their rights. Respect for the personal status of the various
peoples and communities and for their religious interests shall be fully guar-
anteed. In particular, the control and administration of Wakf's shall be exercised in accordance with religious law and the dispositions of the founders.
Article 10.
Pending the making of special extradition agreements relating to Palestine, the extradition treaties in force between the Mandatory and other foreign Powers shall apply to Palestine.
Article 11.
The Administration of Palestine shall take all necessary measures to safe-
guard the interests of the community in connection with the development
of the country, and, subject to any international obligations accepted by the
Mandatory, shall have full power to provide for public ownership or control
of any of the natural resources of the country or of the public works, services
and utilities established or to be established therein. It shall introduce a land
system appropriate to the needs of the country, having regard, among other
things, to the desirability of promoting the close settlement and intensive cultivation of the land. The Administration may arrange with the Jewish agency
mentioned in Article 4 to construct or operate, upon fair and equitable terms,
any public works, services and utilities, and to develop any of the natural re-
sources of the country, in so far as these matters are not directly undertaken
by the Administration. Any such arrangements shall provide that no profits
distributed by such agency, directly or indirectly, shall exceed a reasonable
rate of interest on the capital, and any further profits shall be utilized by it for


the benefit of the country in a manner approved by the Administration.
Article 12.
The Mandatory shall be entrusted with the control of the foreign relations of Palestine and the right to issue exequaturs to consuls appointed by foreign Powers. He shall also be entitled to afford diplomatic and consular protection to citizens of Palestine when outside its territorial limits.
Article 13.
All responsibility in connection with the Holy Places and religious buildings or sites in Palestine, including that of preserving existing rights and of
securing free access to the Holy Places, religious buildings and sites and the
free exercise of worship, while ensuring the requirements of public order and
decorum, is assumed by the Mandatory, who shall be responsible solely to the
League of Nations. in all matters connected herewith, provided that nothing
in this article shall prevent the Mandatory from entering into such arrangements as he may deem reasonable with the Administration for the purpose of
carrying the provisions of this article into effect; and provided also that noth
ing in this mandate shall be construed as conferring upon the Mandatory
authority to interfere with the fabric or the management of purely Moslem
sacred shrines, the immunities of which are guaranteed.
Article 14.
A special Commission shall be appointed by the Mandatory to study, define and determine the rights and claims in connection with the Holy Places and the rights and claims relating to the different religious communities in Palestine. The method of nomination, the composition and the functions of this Commission shall be submitted to the Council of the League for its approval, and the Commission shall not be appointed or enter upon its functions without the approval of the Council.
Article 15.
The Mandatory shall see that complete freedom of conscience and the free exercise of all forms of worship, subject only to the maintenance of public order and morals, are ensured to all. No discrimination of any kind shall be made between the inhabitants of Palestine on the ground of race, religion or language. No person shall be excluded from Palestine on the sole ground of his religious belief. The right of each community to maintain its own schools for the education of its own members in its own language, while conforming to such educational requirements of a general nature as the Administration may impose, shall not be denied or impaired.
Article 16.


The Mandatory shall be responsible for exercising such supervision over
religious or eleemosynary bodies of all faiths in Palestine as may be required
for the maintenance of public order and good government. Subject to such
supervision, no measures shall be taken in Palestine to obstruct or interfere
with the enterprise of such bodies or to discriminate against any representative or member of them on the ground of his religion or nationality.
Article 17.
The Administration of Palestine may organize on a voluntary basis the
forces necessary for the preservation of peace and order, and also for the
defense of the country, subject, however, to the supervision of the Mandatory,
but shall not use them for purposes other than those above specified save with
the consent of the Mandatory, Except for such purposes, no military, naval
or air forces shall be raised or maintained by the Administration of Palestine.
Nothing in this article shall preclude the Administration of Palestine from
contributing to the cost of the maintenance of the forces of the Mandatory
Palestine. The Mandatory shall be entitled at all times to use the roads,
railways and ports of Palestine for the movement of armed forces and the
carriage of fuel and supplies.
Article 18.
The Mandatory shall see that there is no discrimination in Palestine against the nationals of any State Member of the League of Nations (including companies incorporated under its laws) as compared with those of the
Mandatory or of any foreign State in matters concerning taxation, commerce
or navigation, the exercise of industries or professions, or in the treatment of
merchant vessels or civil aircraft. Similarly, there shall be no discrimination
Palestine against goods originating in or destined for any of the said States,
and there shall be freedom of transit under equitable conditions across the
mandated area. Subject as aforesaid and to the other provisions of this man-
date, the Administration of Palestine may, on the advice of the Mandatory,
impose such taxes and customs duties as it may consider necessary, and take
such steps as it may think best to promote the development of the natural
resources of the country and to safeguard the interests of the population. It
may also, on the advice of the Mandatory, conclude a special customs agree
ment with any State the territory of which in 1914 was wholly included in
Asiatic Turkey or Arabia.
Article 19.
The Mandatory shall adhere on behalf of the Administration of Palestine
to any general international conventions already existing, or which may be
concluded hereafter with the approval of the League of Nations, respecting
the slave traffic, the traffic in arms and ammunition, or the traffic in drugs,


or relating to commercial equality, freedom of transit and navigation, aerial navigation and postal, telegraphic and wireless communication or literary, artistic or industrial property.
Article 20.
The Mandatory shall co-operate on behalf of the Administration of Palestine, so far as religious, social and other conditions may permit, in the execution of any common policy adopted by the League of Nations for preventing and combating disease, including diseases of plants and animals.
Article 21.
The Mandatory shall secure the enactment within twelve months from this date, and shall ensure the execution of a Law of Antiquities based on the following rules. This law shall ensure equality of treatment in the matter of excavations and archaeological research to the nations of all States Members of the League of Nations.
1.  Antiquity means any construction or any product of human activity
earlier than the year AD 1700.
2.   The law for the protection of antiquities shall proceed by encourage
ment rather than by threat. Any person who, having      discovered an
antiquity without being furnished with the authorization referred to in
paragraph 5, reports the same to an official of the competent Department, shall be rewarded according to the value of the discovery.
3.   No antiquity may be disposed of except to the competent Department,
unless this Department renounces the acquisition of any such antiquity.
No antiquity may leave the country without an export license from the
said Department.
4.   Any person who maliciously or negligently destroys or damages an antiquity shall be liable to a penalty to be Fixed.
5.   No clearing of ground or digging with the object of Finding antiquities
     shall be permitted, under penalty of Fine, except to persons authorized
     by the competent Department.
6.   Equitable terms shall be Fixed for expropriation, temporary or permanent, of lands which might be of historical or archaeological interest.
7.   Authorization to excavate shall only be granted to persons who show
sufficient guarantees of archaeological experience. The Administration
of Palestine shall not, in granting these authorizations, act in such a way
as to exclude scholars of any nation without good grounds.


8. The proceeds of excavations may be divided between the excavator and
the competent Department in a proportion Fixed by that Department.
If division seems impossible for scientific reasons, the excavator shall
receive a fair indemnity in lieu of a part of the Find.

Article 22.
English, Arabic and Hebrew shall be the official languages of Palestine. Any statement or inscription in Arabic on stamps or money in Palestine shall be repeated in Hebrew, and any statement or inscription in Hebrew shall be repeated in Arabic.
Article 23.
The Administration of Palestine shall recognize the holy days of the respective communities in Palestine as legal days of rest for the members of such communities.
Article 24.
The Mandatory shall make to the Council of the League of Nations an annual report to the satisfaction of the Council as to the measures taken during the year to carry out the provisions of the mandate. Copies of all laws and regulations promulgated or issued during the year shall be communicated with the report.
Article 25.
In the territories lying between the Jordan and the eastern boundary of Palestine as ultimately determined, the Mandatory shall be entitled, with the consent of the Council of the League of Nations, to postpone or withhold application of such provisions of this mandate as he may consider inapplicable to the existing local conditions, and to make such provision for the administration of the territories as he may consider suitable to those conditions, provided that no action shall be taken which is inconsistent with the provisions of Articles 15, 16 and 18.
Article 26.
The Mandatory agrees that, if any dispute whatever should arise between the Mandatory and another Member of the League of Nations relating to the interpretation or the application of the provisions of the mandate, such dispute, if it cannot be settled by negotiation, shall be submitted to the Permanent Court of International Justice provided for by Article 14 of the Covenant of the League of Nations.
Article 27.
The consent of the Council of the League of Nations is required for any modification of the terms of this mandate.


Article 28.

In the event of the termination of the mandate hereby conferred upon
the Mandatory, the Council of the League of Nations shall make such arrangements as may be deemed necessary for safeguarding in perpetuity, under guarantee of the League, the rights secured by Articles 13 and 14, and
shall use its influence for securing, under the guarantee of the League, that
the Government of Palestine will fully honor the Financial obligations legitimately incurred by the Administration of Palestine during the period of the
mandate, including the rights of public servants ,to pensions or gratuities.
The present instrument shall be deposited in original in the archives of the
League of Nations and certified copies shall be forwarded by the Secretary-
General of the League of Nations to all Members of the League. 

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