By Maurice Ostroff
As my blog titled "The 1967 map is less relevant to Israel''s future borders than the 1920 map" provoked some serious comments which deserve considered replies I am responding in this blog rather than in separate talkbacks.
"There are several very serious errors in this article.
1) The SanRemo communique was simply a statement given at the end of a conference by the victorious Allied Powers of WW1 (i.e. it was a statement of intent from those Allied, it was not a "treaty").
2) Even if the SanRemo communique had been intended as a "treaty" it would have been invalid, precisely because at the time that it was issued Turkey was still the sovereign power in Palestine and had not (and never did) ratify the Treaty of Sevres (you can''t make a "binding law" when you aren''t the sovereign).
3) Those two above mean that you have to go to the League of Nations Covenant and the Mandate for Palestine to find the legally-binding agreements, and note in particular Article 25 and 27 (Article 25 clearly excludes Transjordan from the Jewish National Home, and Article 27 sets out the mechanism by which the Articles of Mandate can be changed)"
Victor Friedlander''s talkback raises several important and interesting aspects. He maintains that the San Remo Resolution on Palestine was not abrogated but superseded by the 1947 UN GA partition resolution 181 and by the Camp David accords of 17 September 1978.
Another reader wrote directly to me as follows
"Firstly, the wording of the Balfour Declaration was particularly (and I believe for several reasons) intentionally unclear as to what exactly was being promised to the Jews. For example, a homeland did not necessarily mean a state or even a Jewish majority
Secondly the U.N. was and is the successor in title to the League of Nations, yet when in 1947 it came to proposing and agreeing a partition plan, the binding and limiting restriction in the San Remo agreement 25 years earlier (to which you referred) was hardly discussed or became a relevant issue, either because it was too contentious to be considered or because it had out-lived any statute of limitations period that could possibly be imagined, so that in effect, and I''m sure you agree, its validity had been overtaken by events, it was and is dead in the water, but still remembered - and avoided - as an insoluble possibility!"
As I am neither a lawyer nor historian, but a simple engineer, I would very much appreciate comments and criticism by professionals on my responses which will address all the above points though not seriatim as follows.
The claim that the April 1920 San Remo conference merely issued a communiqué or non-binding statement is incorrect. The conference passed BINDING RESOLUTIONS for administration of the former Ottoman-ruled lands in the Middle East. Regarding Palestine, "The High Contracting Parties" AGREED to entrust the administration to a Mandatory which became responsible for putting into effect the Balfour declaration 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.."
The resolution was BINDING between the parties namely Britain, France, Italy and Japan and subsequently became binding on all 52 members of the League of Nations when they confirmed it unanimously on July 24, 1922.
The overly harsh Treaty of Sèvres to which Johnny Boy refers, took place in August 1920 i.e. after, not before the April San Remo conference. It is correct that Turkey refused to ratify the former which was replaced by the July 1923 treaty of Lausanne that was more favorable to Turkey. Neither treaty affects the validity of the San Remo resolutions.
It is also mistaken to state that Article 25 excludes Transjordan from the Jewish National Home. It does not do so. It states
"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".
The above wording clearly indicates that while Britain was entitled to withhold some provisions of the mandate, it was definitely not entitled to place the territory under Transjordanian rule in blatant violation of Article 5 of the Mandate which states unambiguously
"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 27 to which Johnny Boy refers, merely states that the consent of the Council of the League of Nations is required for any modification of the terms of the mandate and he is correct in stating that "you have to go to the League of Nations Covenant and the Mandate for Palestine to find the legally-binding agreements".
The San Remo resolution was confirmed unanimously by all fifty-one member countries of the League of Nations on July 24, 1922. The importance of this resolution is emphasized by Dr. Jacques Gauthier, a Christian Canadian lawyer who specializes in international law and whose research has been published in a 1200 page thesis. Every fact that he quotes is rigorously authenticated in over 3200 footnotes. He calls San Remo the “key defining moment in history” on the issue of title to Jerusalem and he says the conference was a legal event that wipes out all competing legal events. He adds that the British were given a mandate over Palestine only until the Jews would be ready to take over running a country, which is confirmed, he says, by Article 22 of the Covenant of the League of Nations.
When the British divided the Mandate territory into Palestine, west of the Jordan and Transjordan, east of the Jordan River on September 16, 1922 they justified this illegal action by claiming they were obliged to do this to honor a "purported" agreement described in the McMahon correspondence. This was a clear violation of article 20 of the Covenant of the League of Nations which states inter alia
"In case any Member of the League shall, before becoming a Member of the League, have undertaken any obligations inconsistent with the terms of this Covenant, it shall be the duty of such Member to take immediate steps to procure its release from such obligations.
In terms of the above, I believe Britain was obliged to take immediate steps to deny any purported obligations in terms of the McMahon correspondence. See http://www.2nd-thoughts.org/id350.html
I say "purported obligation" because of a letter published by Sir Henry McMahon on July 23,1937 in the Times of London in which he wrote
"I feel it my duty to state, and I do so definitely and emphatically, that it was not intended by me in giving this pledge to King Hussein to include Palestine in the area in which Arab independence was promised. I also had every reason to believe at the time that the fact that Palestine was not included in my pledge was well understood by King Hussein."
Reproduction of Sir Henry McMahon''s letter in the Times of London
Re Friedlander''s comments, unlike a Security Council Resolution, 181 being a GA resolution was no more than a non-binding recommendation. Significantly, it was accepted by the Jews and rejected outright by the Arab League. In effect the Jewish State of Israel became a recognized fact on May 11, 1949 when it was admitted as the 59th member of the UN.
There appears to be no definitive reference to adoption by the UN of the obligations of the Palestinian mandatory power but a clear indication was given in the International Court of Justice advisory opinion of 21 June 1971 dealing with the legal consequences of the continued presence of South Africa in Namibia. In paragraph 55 the Court turned its attention to the situation which arose on the demise of the League of Nations and the birth of the United Nations. It stated
"To the question whether the continuance of a mandate was inseparably linked with the existence of the League, the answer must be that an institution established for the fulfillment of a sacred trust cannot be presumed to lapse before the achievement of its purpose. The responsibilities of both mandatory and supervisor resulting from the mandates institution were complementary, and the disappearance of one or the other could not affect the survival of the institution. That is why, in 1950, the Court remarked, in connection with the obligations corresponding to the sacred trust that their raison d''etre and original object remain. Since their fulfillment did not depend on the existence of the League of Nations, they could not be brought to an end merely because this supervisory organ ceased to exist"..