The post-modern international law approach

An anti-Levy Report opinion seeking to undermine the "international law" approach taken by members Levy, Shapira and Baker has been penned by Nathaniell Berman, a professor of  International Affairs, Law, and Modern Culture at Brown University’s Cogut Center for the Humanities.  "Culture", we should take note, is the key term.  His law goes with the flow and webb of post-modernism, in my undertanding.

His op-ed is entitled,  San Remo in Shilo[h]: The settlements and legal history and in it, I''ve extracted some of his salient points.
He writes:
... I will refrain from giving an overall analysis, and will focus only on those aspects that set it in the context of legal history. The Commission’s report operates in something of a parallel legal-historical universe, one in which legal evolution stopped sometime in the 1920s and in which the majority of international lawyers writing after that era simply do not exist.

Is he a post-modernist?  Is there such a thing as that in international law?  If so, when do the 1949 Geneva Convention human rights law principles get "stopped"?  How fluid is the law?  Or, on the other hand, when does a law professor have the right to deny the existence of historical international law?
...two of the report’s assertions stand out. First, that Israeli rule in the West Bank cannot be considered an “occupation” in the legal sense because the land was not conquered from an internationally recognized sovereign (what Blum calls the “missing reversioner” theory), and that international law applicable to occupations, including the Geneva Conventions, does not, therefore, apply. Second, that Jewish settlement activity today is legally authorized under the 1917 Balfour declaration calling for the “establishment in Palestine of a national home for the Jewish people;” the Four-Power 1920 San Remo Resolution that, among other things, adopted the Balfour Declaration; and the 1922 British League of Nations Mandate for Palestine...
The report’s conclusion – that there is “no doubt that, from the point of view of international law, the establishment of Jewish settlements in the region of Judea and Samaria does not suffer from illegality” – actually understates its case: its logic is that such settlement is strongly encouraged by international law.

So, what''s his problem?

Ah, here it is:- the first place, from the fact that its international legal arguments have virtually no support within the discipline, beyond the narrow circles of former or present Israeli government officials and a handful of non-Israeli Jews associated with staunchly right-wing views on Israel. It would not be an exaggeration to say that at least 90% of international lawyers – including the International Court of Justice – firmly reject the position that the report announces as representing the “point of view of international law.” Of course, one can argue that the overwhelming majority of international lawyers are wrong, either legally or morally or both.

Remember the "silly proof" of his argumentation line?  If one million flies alight on a piece of rotting meat, does that mean it''s a good thing, for humans that is?

Berman calls this opinion an "oddity"
...even more so in international law, where “legal opinion,” known to lawyers under the Latin phrase “opinio juris,” plays such a large role in the determination of legal rules. It is as though the Commission were operating in an alternative legal universe, populated only by a handful of pro-settler lawyers. The notion that there is no “occupation” due to the absence of a recognized pre-occupation sovereign (the “missing reversioner”), and that Jewish settlement in the West Bank is legally justified by a string of early 20th century documents, suggests that the report is operating in a parallel temporal universe – much in the way that its seeming ignorance of the quasi-consensus of legal opinion against its views suggests that it is operating in a parallel disciplinary universe. 

He then deals in particulars:
...The Balfour Declaration...was simply of no legal significance; it was a statement of British policy in relation to territory over which, at the time, it had neither control nor any legal claim. 
But its wording was adopted and included in all subsequent acts of international law.  Here is Sir Herbet Samuel reading it out to Jews and Arabs in Jerusalem in a Library of Congress photograph:

Berman continues:

The San Remo Resolution...however, was not a treaty and not formally binding; it was a statement of intent by its signatories to embody its conclusions in a treaty.
But it was included in the League of Nations decision to grant Great Britain the Mandate and formed the basis of all future deliberation and reports in the League of Nations Mandates Commission, sitting in Geneva:
...By contrast, the Mandate instrument granting Palestine to British rule, obliging the British to pursue the goals of establishing a “national home for the Jewish people,” 

Prof. Berman, i Suggest to you that you under-quoted.  "Reconstituting" is the operative word you left out from the next paragraph in the preamble:
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:

That recognition, even better than international law, sinks your approach.  You cannot now try to alter a framework of international law agreements, understandings and contracts that were based on a history the world accepted by saying that history doesn''t count.  Napolean in 1799, English Christian Zionism from early 19th century, Byzantine permission to rebuild the Temple in the 4th century, and many, many other examples over 2000 years of loss of political sovereignty that non-Jews extended recognition to our natural, religious, hsitorical, legal and yes, cultural right to be a people in our own land, Eretz-Yisrael (and not Eretz-Yishmael).

And Berman continues,
and encouraging “close settlement by Jews on the land,” was a clearly legally binding international treaty. The ultimate basis for the Palestine Mandate was the Covenant of the League of Nations...

For that I thank him.  And he nevertheless attempts to trump us:
...what has developed in international law in the intervening century has been precisely a powerful current rejecting the notion that the interests and intentions of powerful states are the alpha and omega of legal analysis. The two key principles of this current – the self-determination of peoples and the human rights of individuals – have considerably diminished the legal import of minute analyses of imperial memoranda and pronouncements. Rather, this current has elaborated the principle articulated by Woodrow Wilson in 1918 that “peoples and provinces are not to be bartered about from sovereignty to sovereignty as if they were mere chattels and pawns in a game.” This current ultimately led to the delegitimation of classical colonialism and the emergence of the view, expressed by a judge of the International Court of Justice, that institutions such as the League Mandate system...

Well, first, Wilson came out in favor of a Jewish National Home in Palestine.  Harding, too, in 1922.  Second, the US Senate and House passed declarative resolutions in 1922 affirming America''s backing for the Mandate, based on the Balfour Declaration and confirmed that in the Anglo-American Treaty of 1924. All this is post-1918.  But he''s post-modernist so he commands us not to ignore
the legal consensus that emerged gradually over the past century, but particularly since 1960,

Yes, law approaches can move on but they cannot erase what went before.  For example, the 1947 UN Partition recommendation included this stipulation
The Security Council determine as a threat to the peace, breach of the peace or act of aggression, in accordance with Article 39 of the Charter, any attempt to alter by force the settlement envisaged by this resolution;

My thinking would be that the moment the Arabs launched their war of aggression on November 30th, 1947, this recommendation was a dead letter.  We are left with a void.  And in going to a war of terror between 1949-1967, the Arabs, for a second time, renounced all claims to assistance from international law, leaving Israel in place with the better claim to administer the territory of Judea, Samaria and Gaza if only on the basis of ad victorem spolias.  And 1967 was post-1960.
And let''s not forget that the President of the ICJ between 1997-2000 very much disagrees with Berman, supports the Levy Report in essence/  And this was also post-1960s.  All Berman''s examples from the 1990s then are irrelevant to genuine legal opinion about Israel''s just rights.
His harping on this
...a change in circumstances – known to international lawyers as “rebus sic stantibus,” can nullify a treaty provision. It is hard to think of a clearer case for the application of this doctrine than here. The policy of encouraging “close settlement of Jews” was aimed at furthering the establishment of a “national home” and can hardly be relevant when not only a “national home” has been established, but an internationally recognized state, a UN member for 64 years.

caused me to leave this comment at his op-ed:
I am not an expert or academic diplomaed lawyer though I have read a lot and think I am a rational-thinking person - but if the argument goes that things change and the law should change, what do I do with the fact that Arabs not only never recognized what the world did, did not accept what the world - all the civilized world at that time which was the Jewish national home had to be reconstitituted in Palestine - decided and moreover acted violently from 1920 onwards, never agreed to any compromise nor any partition, constantly went to war, engaged in terror, etc. That negation and refusal never altered. So, should that approach be awarded? If you discount Zionists depending on a 90-year old situation, why should we kowtow before a 90-year old plus policy of violence? They get rewarded for sticking, literally, to their guns but we Jews, sticking to international law, are punished? Does that make sense? If I signed a contract with you Prof. Berman that your pension rights belong to me and 50 years go by (well, we are living longer nowadays) can that contract be abrogated? Or reverse, I am a millionaire and we signed that my fortune goes to you after 120 of my years? Can a cancel it for changed circumstances? Nu?

When your argument is weak, get nasty and so he overextends himself:
But the “change of circumstances” goes more deeply, to the core legal values at stake. The Mandate system, based on the racially paternalist, if not simply racist, notion of “peoples not yet ready to stand up under the strenuous conditions of the modern world,” cannot be used today to deem the wishes of a population to be of no legal weight. On the contrary, current international law requires that, to the extent that the Mandate system continues to be relevant to a particular territory, it must be reinterpreted to dictate the implementation of self-determination for the population...It is the Levy Commission’s seeming ignorance of such decisive legal developments which enables it to have recourse to such dusty artifacts of imperial history as the San Remo Resolution.

Let''s sort this out.  The Mandate system of the League of Nations provided for the ''local population'' by establishing countries, actually, mandates for them, in Syria and Lebanon and in Mesopotamia, i.e., Iraq, with full cognizance that other Arabs countries already existed, as well.  In doing so, the demand for self-determination was accomplished.  How many more Arab countries should have been created?

Prof. Berman, international jurists, lawyers, diplomats, lecturers and even professors who support the right of Jewish residency and property ownership in Judea and Samaria do so knowing that the right of self-determination for "Palestinians" was, to put it bluntly, ignored, because there was no such people and they therefore could not possess such a right, at least one that woudl cancel out the Jewish right to the same territory.  Those Arabs you refer to even admitted so and denied their own "Palestinian" existence, demanding into the 1920s to be united with Syria.   To now assert a "right-of-self-determination" in a post-1960 sense is anti-historical and illogical.

And so, to apply retroactively and anachronistically a concept of post-modern cultural creationism, that there is or even was a "Palestinian people" that should have then or even now benefit from the 1918-1922 deliberations, and ignoring the Feisal-Weizamnn (temporary) agreement, is, well, a bit of a sleight-of-hand illegality.  And, as a Jew, to snidely slip in "racism" is immoral as well.