T. Belman. I recently posted On the Legitimacy of the Settlements: A Legal and Historical Perspective It contained an argument by Lorejnzo Kamel, a Harvard scholar, and a rebuttal by Salomon Benzimra, the author of The Jewish Peoples Rights to the Land of Israel,
This post by Wallace Brand, Harvard Law, is also in response.
One other thought. The beneficiary of the Palestine Mandate was the “Jewish people” rather than the Jews of Palestine. In part this was to enfranchise all the Jews, not just those in Palestine, thereby creating a majority.
By Wallace Brand (published on Dec 8, 2015)
A few months after the Ottoman Empire joined Germany in World War 1 in 1914 by attacking Russian ships, Herbert Samuel, a British Zionist, later appointed as the first Commissioner of the British Mandate in Palestine, recognized this was likely an opportunity to obtain a Jewish Palestine. But he decided that there were too few Jews in the population in Palestine at that time for immediate statehood to be practical. Although in the Jerusalem area the Jews were two thirds the total population, in the Palestine territory as a whole they only numbered about 100,000 or about one sixth the total of perhaps 600,000 Arab Muslims and Christians.
Herbert Samuel, a British Jew who had risen high in the British Labor Government wrote in a memo to the British War Cabinet entitled “The Future of Palestine”: If Palestine were to be open to unrestricted Jewish immigration, it might become a Jewish majority state. How could they become a Jewish majority state? It would need a majority to be able to command obedience from the Arab ethnic population; also a larger population to protect the state against Arabs or other enemies external to the state. A failed Jewish state might set back Zionism for 100 years.
After looking at what he conceived were the only alternatives, Samuel decided the way to go was to have Britain annex Palestine. The only alternatives to British annexation he thought of were: 1. Annexation by France, 2. Internationalization, 3. Annexation to Egypt, and 4. continued Turkish rule with guarantees permitting Jewish settlement.
https://en.wikisource.org/wiki/The_Future_of_Palestine
Nothing came of Samuel’s efforts. However several years later the British War Cabinet decided a Declaration favoring Zionism would be useful to the war effort to obtain the goodwill of Russian and American Jews. The Bolshevik government in Russia was thinking about ending its war efforts. That would release two or more divisions of German troops from their Eastern Front to travel to the Western Front where Britain and France were in a stalemate with German forces, bogged down in trench warfare. The US had been invited to join the Allies in the war against Germany but so far had not declared war.
David Lloyd-George had been introduced to Chaim Weizmann by C.P. Scott, the editor of the Manchester Guardian and Weizmann had met Lord Balfour in a garden party in Manchester. Through discussions with him about Zionism, all three had become very interested in it. Weizmann had helped England in the war by giving them free use of his intellectual property in the low cost manufacture of acetone that was used as a component of guncotton, an important explosive used in WWI. Lloyd-George thought that only when Jews once again ruled in Palestine would it be recovered from a malarial wasteland to a land of milk and honey. Lloyd-George, “The Jews and Palestine” (1923). An important consideration was that Palestine was on the British trade route to India and Asia. Becoming trustee would give Britain control over the territory.
But it was the influence of the War Cabinet that finally gave Britain the impetus to declare itself in favor of a Jewish Palestine. The Declaration did not prevent the Russian Bolsheviks from deciding to terminate their war with Germany nor did it help persuade the Americans to enter the war on the British side as the War Cabinet had thought. The US did enter the war because of the German submarine attack on US shipping and the Zimmerman telegram. Lloyd-George had become British Prime Minister and Balfour had become British Foreign Secretary.
In 1917 Balfour had asked Weizmann to provide a first draft of a declaration of British policy favoring Zionism that Weizmann thought would satisfy the Zionists and Weizmann turned to Harry Sacher who was a lawyer but then working for the Manchester Guardian as a political analyst. He was a member of a small British Palestine club in Manchester. Sacher wrote the first draft. The final version was published on November 2, 1917.
The following month on December 19th the British Foreign Office published a memorandum explaining the Declaration responding to charges of anti-Zionists that the declaration provided for an undemocratic government. In a memo by Arnold Toynbee and Lewis Namier, the Foreign Office replied that a government ruled by a small section of the population would indeed be undesirable, but that was not contemplated. What was contemplated was that the [collective] rights to political self-determination in Palestine would be placed in trust, with Britain or the US as trustee having the rights to set up a government and administer it. Individual political rights were to be saved for the Arabs as “civil rights”. The collective rights were not to vest in the Jewish People until the Jews had attained a population majority where they would rule, and the capability to exercise sovereignty.
The Balfour Declaration expressly provided for immediate right of settlement in Palestine by the Jews and for the trustee to facilitate Jewish immigration, but deferred rule by the Jews until they had met majority of population and capability of exercising sovereignty standards.
Sacher agreed with Samuel that it would be unwise to seek immediate statehood for the Jewish People but disagreed with him on the best way to bring about an enduring Jewish Palestine — not by British annexation but by placing the collective political rights to self-determination of Palestine in trust until the Jews were ready for statehood. He wrote a short 23 page book listing five methods of attaining a Jewish Palestine, including British annexation of the territory, international control, Turkish suzerainty, immediate statehood, or trusteeship (by the US or Britain). He favored the latter. His book was entitled “A Jewish Palestine: the Jewish case for a British trusteeship.” World Zionist Organization, London Bureau (1919).
The United States also favored Sacher’s approach as shown by the American Proposal for Palestine, January 21, 1919 delivered to President Wilson and his plenipotentiaries in Paris for the Peace Conference by a committee of academics he had set up to help in peace negotiations. This group initially called “The Inquiry”, became the American Commission to Negotiate the Peace when he brought many of them to Paris with him. It exists today as the Council on Foreign Relations, but divorced from the government.
It recommended in pertinent part:
“1) That there be established a separate state of Palestine.
2) That this state be placed under Great Britain as a mandatory of the League of Nations.
3) That the Jews be invited to return to Palestine and settle there being assured by the Conference of all proper assistance in so doing that may be consistent with the protection of the personal (especially the religious) and the property rights of the non-Jewish population, and being further assured that it will be the policy of the League of Nations to recognise [sic] Palestine as a Jewish state as soon as it is a Jewish state in fact.”
http://www.eretzyisroel.org/~samuel/americandraft.html
This recommendation was not express in the Declaration nor the Mandate that copied the Declaration word for word. However it is well established that the intention of the settlors of a trust is the lodestar to its interpretation. It is likely the British carefully tailored the language of the Declaration and the Mandate to avoid unnecessary stirring up of the Arabs. See
Ingrams, Palestine Papers 1917-1922 Seeds of Conflict
The San Remo Resolution, in the second paragraph of subpart (b) shows that the Allied Principal War Powers adopted the method Sacher had recommended. The collective rights to political self-determination consist mainly of the right to set up a government and to administer it. The British had already formed a military government so the Palestine Mandate (the agreement for a trust to carry out the Balfour Declaration), entrusted the administration of government to the British. For how long? Until such time as the trust res was intended to be vested in the cestui que trust (beneficiary), the Jewish People, transferring legal dominion to them. How does one exercise legal dominion over an intangible such as collective political rights? For a tangible trust res, legal dominion is the right of possession. For collective political rights, legal dominion entitles the possessor to set up a government and administer it. The Palestine Mandate gave legal dominion over those rights to the British until the trust standards had been met.
The Partition Resolution of the UN General Assembly is commonly thought to be the roots of sovereignty of the Jewish State. Is it? No. It died at birth when the Arabs rejected it. The UN’s General Assembly has only the authority to recommend, not to legislate. The foundation of the Jewish State’s sovereignty has always been the San Remo Resolution and the Palestine Mandate. Stone, “Israel and Palestine: Assault on the Law of Nations.
Sacher had recommended that the authority of the trustee (Britain) be subject to the supervision of the League of Nations that was to have supervisory oversight. Why? Just in case Britain changed its mind. Structuring the Mandate in that way, as a trust supervised by the League, saved Palestine for the Jews. Had Britain annexed Palestine, its drastic change in policy in 1939 would have blocked Jewish immigration – keeping Jews as a minority and the change to self-government in 10 years proposed in the 1939 White Paper would have resulted in one more Arab state. The League’s Permanent Mandates Commission found the shift was ultra vires – completely outside the scope of the authority granted to the trustee by the Mandate.
The Mandate was a legal instrument that was self-executing. When the legal standards had been met, the beneficial interest was to change into a legal interest. That occurred in 1948 in the area later defined by the Green Line Armistice Boundary and in 1967 for the remainder of the territory defined in the Mandate as Palestine west of the Jordan River. The abandonment of its trusteeship by Britain in 1948 did not end the trust. Resignation of a trustee never does.
Rostow, Historical Approach to the Issue Of Legality of Jewish Settlement Activity, New Republic (April 23, 1990) If a new trustee is needed, the supervising authority will appoint one as did the UN in the case of Namibia. International Court of Justice, Legal Consequences for States of the continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 (1970) Advisory Opinion of 21 June, 1971.
Arab claimants to sovereignty have never accepted recognition of the Jewish state. The recognition of a state may be express or tacit. The latter results from any act that implies the intention of recognizing the new state. Approval of the League of Nations Mandate is such an act based on the the summaries shown in the Memo of the British Foreign Office of December 19, 1917 and that of the American summary circulated at the Paris Peace Talks and approved at San Remo.
The Arabs have expressed their dissatisfaction by threats of violence, actual violence and by fraud. The usual fraud is carried out by publication of bogus legal opinions claiming to show the illegality under international law of Jewish settlements and occupation outside the Green Line and claiming the unilateral right to secede from the Jewish state. Why arguments based on international law? How many people who pass you on the street know anything at all about international law. Repeated often enough to them it becomes a “poetic truth” that can’t be dented by facts, reason or logic. Judea, Samaria, and East Jerusalem may be occupied, but it is not a “belligerent occupation” as defined in the Regulations under the Hague Convention, nor does voluntary settlement of Jews in these areas, impose the obligations on Israel that it would if they had been deported or transferred. These are areas that were liberated in 1967 to fulfill the status intended for them at San Remo in 1920 as a part of a Jewish People’s State.
It is difficult to find a copy of Rifkind, “The Basic Equities of the Palestine Problem written by eight distinguished jurists; Simon H. Rifkind, Chairman, Judge of the United States District Court, New York; Jerome N. Frank, Judge of the United States Circuit Court of Appeals, Second Circuit; Stanley GH. Fuld, Judge of the Court of Appeals of the State of New York; Abraham Tulin, member of the New York Bar, Milton Handler, Professor of Law, Columbia University; Murray I. Gurfein, member of the New York Bar; Abe Fortas, former Undersecretary of the Interior of the United States (and later Justice of the US Supreme Court) Lawrence R. Eno, member of the New York Bar.
It reached the same conclusion I did from the facts and law this distinguished group found relevant. It concludes the purpose of the Palestine Mandate was to facilitate Jewish immigration until there was a majority of Jewish population and ultimately a reconstituted Jewish Commonwealth.
Wallace Edward Brand
JD Harvard 1957
See also, SSRN.com/abstract=2385304
I often communicated with the author, Wallace Brand. Also mentioned in another of his articles is Solomon Benzimra. They both are deceased now. Solomon was a close friend of mine from Toronto.
@ bernard ross:
Another reference to a “Jewish Commonwealth” to ultimately exist.
Mr. Loyd George, who was the Prime Minister of the Government which issued the Declaration has said, quoting what Lord Balfour said when he submitted the [Balfour] Declaration to the Cabinet for its approval: “It was not their idea that a Jewish State should be set up immediately without reference to the wishes of the majority of the inhabitants. On the other hand it was contemplated that when the time arrived for according representative institutions to Palestine, if the Jews meanwhile responded to the opportunity afforded them by the idea of a National Home and had become a definite majority of the inhabitants, then Palestine would become a Jewish Commonwealth.”
David Loyd George “The Truth about the Peace Treaties (London, 1938) Vol II, p. 1137
@ bernard ross:
Great to hear you are still a constructive positive supporter of Israel.
Now I am awaiting for the announcement of your aliyah to Israel, as more of your true Zionist fulfillment.
Yes to one of the open areas of Judah / Samaria and start an outpost. Make sure to take a few Canadian JDL members with some high powered weapons to protect you.
In Judah / Samaria I personally prefer Mallah Adumin or Ariel a lot more desirable lifestyle. Then you are the pioneering type I assume. so some of the open spaces would be a great challenge or perhaps not for a Zionist pioneer such as yourself.
Yesha Council says ‘thank you’ to Peace Now
Judea-Samaria leader thanks Peace Now for continually losing in High Court, gaining legal precedent recognizing new communities.
http://www.israelnationalnews.com/News/News.aspx/204959#.VnBWjr9Gh2A
The Palestinians still refuse to accept the reality of the Jewish State and constantly are finding ways to kill Jews and try and drive them out.
Israel has two rational choices to the conflict. No one is not a two state solution for two people as the Palestinians do not accept the permanence of the Jews.
One is try and minimize damage caused by the Palestinians and keep fighting with one hand tied behind its back when the Palestinians try their various forms of attack periodically as advocated by Prime Minister Netanyahu and Defense Minister Ya’alon.
The second option is drive out forcibly all terrorists and their supporters. Allow Arabs who demonstrate loyalty (such as the Druze and many Bedouin) to keep enjoying full civil rights. Palestinian polls say 78% of the population of East Jerusalem, Gaza and Judah/Samaria (West Bank) would like to emigrate to the west. Assistance (including financial) to these people should be extended to fulfill their desire to emigrate. This would allow for actual peace between Israel and the remaining Arabs.
Bear Klein Said:
state your facts.. what have I written which leads anyone to beleive that I do not support Israel? I submit that my positions are in support of israel and world Jewry and I have submitted facts to prove that the current GOI and specific individuals have warped the interests of Israel and Jews. State your facts
@ Bear Klein:
See, you are at it again, trying to defame me when i criticize BB, rebut my criticisms, I notice you avoided my questions on whether you agree with the gov… I do not agree with incarcerating Jews without evidence in order to appear equal handed; I do not consider the muslim arab enemy equal to Jews;I do not agree with the muslim abuse of Jews on the Mount and the GOI limiting of Jews there; I do not agree with, and accuse of inciting murder, the lynch mob declarations of BB, Yaalon, rivlin and Erdan
Notice that I never even mentioned all the past BS announcements that never happened or the recent ones like deportation of terrorists.
Apparently your support of BB fakery has now become synonymous with supporting Israel. Deal with the facts I put to you on your support of BB’s actions towards YS. If you had an argument supporting him you would have stated it… why has he NEVER mentioned the legality and legitimacy of Jewish settlement in YS…. is it VERBOTEN!!!!!!!
@ Bear Klein:
can one settle anywhere in YS, outside of designated towns or are permits restricted “informally” in a “non existent” freeze?
Salubrious Said:
Did the “Jewish people” ever decide that or is it assumed that the Jewish agency in collaboration with the state of Israel are the Jewish people? As there appears to be only one remaining right left unfulfilled to world Jewry… Jewish settlement in YS…. I do not see any engagement with that goal by the GOI or the Jewish agency. My assumption is that all nations, including Israel, signed on to the obligation to settle Jews in the mandate and that this legal obligation continues to be illegally obstructed by the state of Israel with the collusion of the Jewish agency. I would think that both could be sued by any member of the collective class of “world jewry”.
However, none of this deals with my repeated claim that a good legal tactic for Israel would be to settle Jews directly from the diaspora in YS and that in such circumstances there is no legal argument under international law…. that all argument against jews settling in YS is based on the Geneva conventions in regard to citizens of the state of israel. That although the GC arguments are incorrect they serve as a red herring obfuscation and that by settling non Israeli jews, without conferring Israeli citizenship immediately, the arguments of the opposition lose their legal basis. Furthermore, Israel could claim that it has a legal obligation under international law to settle jews there as it is the current administrator of the territory and is bound by the relevant law. In fact, I have suggested an affirmative action program to mitigate the damage of past obstruction by giving free land grants to state lands in YS to diaspora Jews in order to achieve a massive and speedy settlement. This would be justified in order to “heal” the past legal injustices of obstructing settlement and could be based on US Homestead Act.
I would love to hear any legal arguments against my 2 suggestions.
Funny Bernard you claim to be a supporter of Israel but as time goes on you sound like something other than that.
The Jews of Israel or new immigrants may move to any Jewish Town in Area C, including those outside of the settlement blocks. One site showing in English most real estate sites are in Hebrew.
Type Area City Neighborhood Price Bed. Image Details
Apartment Judea & Samaria Adam Adam $262,000 4 Photos Details
Villa Judea & Samaria Bet El Aleph $467,000 4.5 Photos Details
Apartment Judea & Samaria Beitar Beitar Elite $455,000 5 Photos Details
Apartment Judea & Samaria Bet El Bet El $254,000 4 Photos Details
Villa Judea & Samaria Ma’ale Adumim Mitzpe Nevo $896,000 Photos Details
Apartment Judea & Samaria Tel Tzion $200,000 Photos Details
Apartment Judea & Samaria Adam $279,000 Photos Details
Apartment Judea & Samaria Adam $283,000 4 Photos Details
Apartment Judea & Samaria Adam $315,000 Photos Details
Cottage Judea & Samaria Adam $330,000 5 Photos Details
Cottage Judea & Samaria Adam $340,000 4 Photos Details
Apartment Judea & Samaria Tel Tzion $386,000 4 Photos Details
Cottage Judea & Samaria Adam $513,000 Photos Details
Cottage Judea & Samaria Beit Horon $564,800 5 Photos
If you wish to buy property Ross one site to look at http://www.buypropertyinisrael.com/search?r=0&a=6&c=&t=&fp=&tp=&b=
Bear Klein Said:
Isnt it odd that your PM never says that jewish settlement in YS is legal and legitimate? He appears to disagree with your legal analysis which in itself is an odd position for a leader of the Jewish people beyond those of the state of Israel. His position completely ignores the sole interest of world Jewry in Judea Samaria… the right of settlement. He has decided that the interests of the Jewish people in Judea samaria are NOT the interests of the state of Israel. In fact, his only excuse for remaining in YS is for security for his state. However, even with such a perspective there would be nothing for him to support the rights of world jewry to settle YS… there is no reason for him to agree that Jewish settlement there is illegal and illegitimate.
Bear Klein Said:
Is that a fact, can they live in YS outside the existing settlement blocks or does the GOI restrict them from that option?Bear Klein Said:
you appear to have missed my point which was not about the French but about the gov of israel which does everything to prevent Jews from living in YS outside of the boundaries of the euro designated Jewish ghetto which BB says everyone knows Israel will keep. It appears that everytime there is a criticism of BB you take the approach to throw in a red herring and particularly to obliquely criticize the messenger in order to avoid discussion of the point. You say Israel needs Aliyah while at the same time the GOI obstructs Jewish settlement in YS and appears to be on a transparent campaign to demonize Jewish settlers. This perspective is reinforced by the fact that the same PM of the last 3 terms, who just recently quickly came up with a law to demonize and incarcerate Jews like the enemy muslims, has never once during those terms ever declared that jewish settlement in YS is legitimate and legal. Do you agree with the demonization of BB, Yaalon, Rivlin and Erdan, do you agree with the speedy Jewish incarceration law, do you agree with the continuing allowance of muslim anti semitism and incitement by the GOI?
I notice that you often call for annexation of C but I do not see how you can expect any such thing from BB who cannot even mouth the factual words that Jewish settlement is legal and legitimate in YS….. the very same words mouthed by the non jews who came up with balfour, san remo and the LON; the very same words which enabled the birth of modern Israel. The silence from BB is deafening. I fear your apologetics for BB are misplaced.
I wonder if those french jews making aliya are aware that there are more jews harassed and stabbed by muslims in Israel than in France; that their gov who is supposed to represent and protect jews is demonizing Jewish settlers falsely; that unlike France, Jews are incarcerated without evidence; that when the IDF sends their son to war it is likely that he will die unnecessarily in order to protect the lives of muslims “civilians” who train their toddlers to kill Jews and teach them that Jews are sons of apes and pigs?
@ bernard ross:
Bernard when people move to Israel they have freedom of choice of where they want to live. Many of the French are moving to places where other French Jews also live. Some not but that is freedom of choice.
These French Jews are choosing to move to Israel and where in Israel they want to live. They are actually doing something concrete. They should be applauded as actually doers!
@bernard ross Comment 2
In their explanation of the Balfour Declaration in the month following its publication, the British Foreign Office, in a memo written by Arnold Toynbee and Lewis Namier on December 19, 1917, said that it was intended to place the political rights to self-determination in Palestine in trust so that there would not be a government run by one sixth of the population. Their would only be the British trustee running the Government until such time as the Jews were a majority population and they had as much capability to exercise sovereignty as any modern European state. The same method was approved by the Americans in a Report of January 21, 1919 delivered to President Wilson and American plenipotentiaries at the Paris Peace Talks You will see that in the San Remo Resolution the first paragraph of subpart (b) gave the Mandates of Syria and Mesopotamia provisional statehood. They could not do that with the Palestine Mandate because the Jews were to get a state only if and when they had a population majority and the capability to exercise etc. In the second paragraph they agreed to create a trust. The Palestine Mandate was that Trust Agreement. The British resigned as trustee on May 14, 1948 (to my aging recollection). Resignation of a trustee does not end a trust., Rostow, Historical Approach to the Issue Of Legality of Jewish Settlement Activity, New Republic (April 23, 1990) The trust document was a legal instrument that was self-executing. When a part of the trust res met the terms of the trust standards, it vested, giving the Jews legal dominion over the collective political rights to self-determination. Up to that time it was only a cestui que trust. The remainder of the trust lived on and vested in 1967. If the Jewish People were beneficial owners of Judea and Samaria, I see no obligation under the Montevideo Convention to exercise sovereignty until they wanted to. That was the very purpose of Harry Sacher’s recommendation of creation of a trust so that the Jews would not gain statehood until they could practically use it. In the Palestine Mandate you will see that Britain was “entrusted” with the administration of government. See: Sacher, “A Jewish Palestine: the Jewish case for a British Trusteeship”. That is what you do when you have legal dominion over an intangible trust res such a the collective political rights to self-determination. They didn’t need the right to set up a government because by that time they had already set one up.
The Jewish People have delegated the administration of government to the State of Israel. They have no obligation to do so with respect to all of the territory over which they own the collective political rights.
@ bernard ross 3 The only obligation the Jews had under the Palestine Mandate was to ensure the non-Jewish Communities were not required to surrender existing rights. The only rights these non-Jewish Communities had was the right to form tribes. They were living for 400 years under Ottoman rule. They were not a tributary or vassal state. The Arabs in Palestine weren’t ANY state — nor did they even claim to be until 1964 when they drafted the first PLO Charter in Moscow. Before that they were tribes in an Ottoman province. The existence of a unique Palestinian Arab People was posited in the preamble of the Charter, corroborated only by the first 422 members of the Palestine National Council each hand picked by the KGB according to Major General Ion Pacepa. This was at the same time that Soviet diplomats at the UN were promoting the International Convention on Civil and political Rights which elevated the collective political right of self-determination of any “people” from a natural right enforceable only by philosophers to an right under international law. Julius Stone suggested that what the Arabs were pushing for was equivalent to giving any group calling itself a “people” the right to empower the UN to redraw state lines. Unthinkable since 1648 when a new world order under the Peace of Westphalia that been set up providing for state sovereignty.
The sovereignty of the Ottoman Empire over Palestine was virtually undisputed except for one temporary Egyptian incursion. Netanyahu was trying to negotiate a peace that would give the Arabs internal autonomy. If he had used the method suggested by Mordecai Khedar he would have fulfilled that obligation — i.e. by recognizing the right of the major tribes to govern themselves separately.
The British and the Jews were right to form a trust when the Jews did not have a majority population and could find it difficult to command obedience from the Arabs and protect the state from foreign aggression. Look what happened in Syria when the Alewives were given sovereignty over that population in which the Alewives were a small fraction. The death and destruction commenced by Hafez Assad was continued by Bashir Assad. I don’t know how many lives were sacrificed because of that stupidity that the Jews and British avoided.
@bernard ross Comment 2
In their explanation of the Balfour Declaration in the month following its publication, the British Foreign Office, in a memo written by Arnold Toynbee and Lewis Namier on December 19, 1917, said that it was intended to place the political rights to self-determination in Palestine in trust so that there would not be a government run by one sixth of the population until such time as the Jews were a majority population and they had as much capability to exercise sovereignty as any modern European state. The same method was approved by the Americans in a Report of January 21, 1919 delivered to President Wilson and American plenipotentiaries at the Paris Peace Talks You will see that in the San Remo Resolution the first paragraph of subpart (b) gave the Mandates of Syria and Mesopotamia provisional statehood. They could not do that with the Palestine Mandate because the Jews were to get a state only if and when they had a population majority and the capability to exercise etc. In the second paragraph they agreed to create a trust. The Palestine Mandate was that Trust Agreement. The British resigned as trustee on May 14, 1948 (to my aging recollection). Resignation of a trustee does not end a trust., Rostow, Historical Approach to the Issue Of Legality of Jewish Settlement Activity, New Republic (April 23, 1990) The trust document was a legal instrument that was self-executing. When a part of the trust res met the terms of the trust standards, it vested, giving the Jews legal dominion over the collective political rights to self-determination. Up to that time it was only a cestui que trust. The remainder of the trust lived on and vested in 1967. If the Jewish People were beneficial owners of Judea and Samaria, I see no obligation under the Montevideo Convention to exercise sovereignty until they wanted to. That was the very purpose of Harry Sacher’s recommendation of creation of a trust so that the Jews would not gain statehood until they could practically use it. Sacher had written the first draft of the Balfour declaration. In the Palestine Mandate you will see that Britain was “entrusted” with the administration of government. See: Sacher, “A Jewish Palestine: the Jewish case for a British Trusteeship” (1919). That is what you do when you have legal dominion over an intangible trust res such a the collective political rights to self-determination. They didn’t need the right to set up a government because by that time they had already set one up.
The Jewish People have delegated the administration of government to the State of Israel. They have no obligation to do so with respect to all of the territory over which the the Jewish People own the collective political rights.
@ bernard ross 3 The only obligation the Jews had under the Palestine Mandate was to ensure the non-Jewish Communities were not required to surrender existing rights. The only rights these non-Jewish Communities had was the right to form tribes. They were living for up to 400 years under Ottoman rule. They were not a tributary or vassal state. The Arabs in Palestine weren’t ANY state — nor did they even claim to be until 1964 when they drafted the first PLO Charter in Moscow. Before that they were tribes in an Ottoman province. The existence of a unique Palestinian Arab People was posited in the preamble of the Charter, corroborated only by the first 422 members of the Palestine National Council each hand picked by the KGB according to Major General Ion Pacepa, the highest ranking defector from the Soviet bloc during the Cold War. This was at the same time that Soviet diplomats at the UN were promoting the International Convention on Civil and political Rights which elevated the collective political right of self-determination of any “people” from a natural right enforceable only by philosophers to an right under international law. Julius Stone, a venerated international lawyer in his book Israel and Palestine: an Assault on the Law of Nations.” suggested that what the Arabs were pushing for was equivalent to giving any group calling itself a “people” the right to empower the UN to redraw state lines. Unthinkable since 1648 when a new world order under the Peace of Westphalia that been set up providing for state sovereignty.
The sovereignty of the Ottoman Empire over Palestine for the 400 years preceding Allied victory was virtually undisputed except for one temporary Egyptian incursion. Netanyahu was trying to negotiate a peace that would give the Arabs internal autonomy. If he had used the method suggested by Mordecai Khedar he would have fulfilled that obligation — i.e. by recognizing the right of the major tribes to govern themselves separately.
The British and the Jews were right to form a trust when the Jews did not have a majority population and could find it difficult to command obedience from the Arabs and protect the state from foreign aggression. Look what happened in Syria when the Alewives were given sovereignty over that population in which the Alewives were a small fraction. The death and destruction commenced by Hafez Assad was continued by Bashir Assad. I don’t know how many lives were sacrificed because of that stupidity that the Jews and British avoided.
@ bernard ross:
As the Paris Peace Conference entered its third month, Woodrow Wilson said:
I am…persuaded that the allied nations, with the fullest concurrence of our own Government and people, are agreed that in Palestine shall be laid the foundations of a Jewish Commonwealth.1
(Reaction to the Balfour Declaration) He later tried to walk back that remark, likely at the request of the British who did not want to stir up the Arabs.
There are many other instances in which the term Jewish Commonwealth was used but I don’t have the time to look them up . The term is also used in “Equities” pp. 29-30 where Judge Simon Rifkind, et al. said: ” In summary, the historical purpose of the Balfour Declaration was clearly to give the Jews the right yo immigrate into Palestine, create a majority there and ultimately reconstitute their ancient Commonwealth.”
Bear Klein Said:
but they are not being settled in YS in new settlements.. only in the existing ghettos determined by the euros. New aliyah should be sent to settle the vacant lands of YS
Moderation???????????
Historically and legally Israel has a right to all of the Land of Israel.
Israel needs more aliyah to settle the Land of Israel. French Jews are now coming, as are others.
Folks keep arguing the legality of Israeli annexation when the state of Israel shows no sign of seeking that goal. Even if the argument was won in a court it is meaningless and irrelevant if the state does not want it. Focus must be on Jewish settlement rights NOT Israeli state rights. In such a scenario even the state of Israel can be sued to fufill the proven settlement rights of Jews, not israelis. It is possible for the occupying power of Israel to fulfill its legal obligation to settle Jewry while NOT seeking to extend present or future sovereignty. If they settle Jews there the Jews can pursue their rights of self determination separate from the state of Israel, or join. So far the GOI has not been sued for mandamus and estoppel wrt Jewish rights of settlement in the land under their occupation and administration. The same obligations of British mandate fall on the state of Israel in the land they occupy.
iNterestingly, this article is also about the rights and sovereignty of the state of Israel as opposed to the rights of immigration and settlement of the Jewish people in all the mandate territory..
Hence we continue to see the red herring, the elephant in the room, which has been the basis of all legal arguments against the settlement of Jews in the mandate. These collective rights preceded the state of Israel, which state has elected NOT to represent nor pursue the only interest of collective Jewry in YS. there is nothing in the LON which stated that the collective Jewry can only be represented in the future by one state or entity NOR is their anything which says the collective Jewry rights may be legally squandered by a Jewish state. The collective rights of non Israeli diaspora Jews to settle in YS cannot be legally cancelled by the state of Israel especially since they seek no soveriegnty over YS. The collective diaspora jewish rights continue to exist apart from the state of Israel. Israel and the Jewish people are considered to be two separate entities and therefore the rights conferred on the Jewish people are not fulfilled by the state of Israel but remain separate. The rights of those Jews now in Israel were aquired, derived and fulfilled in the establishment of the Jewish state BUT that did not account for the remainder of Jews whose rights are still unfullfilled and whose rights to settle in YS is not restricted by any legal basis …. it is, and has been, restricted physically, de facto, by the UK, JOrdan and the GOI…illegally.
If one separates the Jewish people from the state of Israel in the legal analysis the solutions achieve clarity. Law does not confuse and merge 2 separate entities. There remains a basic assumption that Israel and the Jewish people are legally interchangeable with respect to the settlement rights of the Jewish people in ALL the mandate territory. I submit that this is an error in analysis and judgement as law tends to allow 2 seemingly contradictory scenarios if they cannot be deemed mutually exclusive. I beleive that the focus should be place on Jewish settlement as a tactic rather than Israel annexation, that such a tactic has a much greater possibility of success in legal defense and thus far has produced no legal argument against it.
why the sudden use of the term commonwealth which appears nowhere prior in any legal documents or declarations?