Palestinian Authority to Sue British Government Over Balfour Declaration

Palestinian Authority Foreign Minister, Riyad al-Malki, on behalf of PA President Mahmoud Abbas, announced that the PLO was making plans to sue the British over the issuance of the 1917 Balfour Declaration. For almost 100 years, the Declaration has represented, for the Palestinians, the political beginning of Palestine falling out of their influence and into the control of the budding Zionist movement. Al-Malki made his announcement about possible legal action at the end of the July 2016 Arab League summit meeting in Mauritania.

The possible law suit is one more in a series of multiple efforts by anti-Israel or anti-Zionist forces who have since Israel’s inception sought to delegitimize Israel diplomatically: at the UN, from Eastern European Soviet Bloc countries, at the International Court at The Hague, through certain Christian Church groups, at the 2001 Durban Conference against racism, and in the contemporary Boycott, Divestment and Sanctions movement against Israel.

By intentionally focusing on the Balfour Declaration, the PA seek to reinvigorate the claims of its original 1964 PLO Charter which said, that “The Balfour Declaration and the Mandate for Palestine, and everything that has been based upon them, are deemed null and void.” The PLO Charter continued that “claims of historical or religious ties of Jews with Palestine are incompatible with the facts of history and the true conception of what constitutes statehood. Judaism, being a religion, is not an independent nationality. Nor do Jews constitute a single nation with an identity of its own; they are citizens of the states to which they belong.”

The contents of the Declaration spoke specifically about “the establishing of a national home for the Jewish people and protecting the civil and religious rights of the non-Jewish communities.” These phrases were included in the 1922 Articles of the Mandate, sanctioned by the League of Nations, and earlier in the 1920 San Remo Agreement of the victorious Allies of World War I, which established the status of the former Ottoman territories in the Middle East as Mandates.

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The Mandate For Palestine Still Relevant Nearly A Century Later

Successive Israeli governments have failed to recognize the supreme importance of the “Mandate for Palestine” [24 July, 1922]. The Mandate, a  historical League of Nations (the forerunner to the United Nations) document, laid down the Jewish legal right to settle anywhere in western Palestine, the area between the Jordan River and the Mediterranean Sea, an entitlement unaltered in international law.

Jewish leadership in Israel and the diaspora has done practically nothing effective with the best political weapon they will ever have. We simply cannot afford to ignore the valid rights granted to the Jewish people under the Mandate for Palestine. Justice is on our side; we must not let it slip away.

Israelis and friends of the Jewish State alike are accustomed to the never-ending scorn that the United Nations heaps on Israel, the Middle East’s only free democracy; never mind its desire for peace with all of its Arab neighbors. It may seem unfathomable then, that the very same institution was ultimately responsible for its creation.

The roots of the “Mandate for Palestine”– a legally binding document published by the League of Nations, the forerunner of the United Nations – can be traced back to both the founding of modern Zionism in 1897 by Theodor Herzl, and the Balfour Declaration of November 1917.

After witnessing the spread of anti-Semitism around the world, Theodor Herzl felt compelled to create a political movement with the goal of establishing a Jewish National Home in historic Palestine, and assembled the first Zionist Congress in Basel, Switzerland in August 1897. During World War I, Foreign Secretary Arthur Balfour simply expressed Great Britain’s view with favor and sympathy for “the establishment in Palestine of a national home for the Jewish people.”

In contrast, the Mandate is the multilateral binding agreement which laid down the Jewish legal right to settle anywhere in the geographical area called Palestine, the land between the Jordan River and the Mediterranean Sea, an entitlement unaltered in international law.

The Mandate was not an innocent vision briefly embraced by the international community. The entire League of Nations – 51 countries – unanimously declared on July 24th, 1922: “Whereas recognition has been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.”

Washington went a step further: In September of that year, President Warren Harding signed the Lodge-Fish Joint Resolution, which had passed both Houses of Congress without dissent and read, “Favors the establishment in Palestine of a National Home for the Jewish people.”

The Mandate clearly differentiates between political rights referring to Jewish self-determination as an emerging polity – and civil and religious rights, referring to guarantees of equal personal freedoms to non-Jewish residents as individuals and within select communities. Not once are Arabs as a people mentioned in the Mandate for Palestine. Nowhere in the document is there any granting of political rights to the Arab population.

Article 5 of the Mandate clearly states that “The Mandatory [Great Britain] 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.” The territory of Palestine was exclusively assigned for the Jewish National Home.

Article 6 states that “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.”

Accordingly, article 6 clearly states that the creation of Jewish settlements is not only permissible, but actually encouraged. Jewish settlements in Judea and Samaria (i.e., the West Bank) are perfectly legal. The use of the phrase “Occupied Palestinian Territories” is a disingenuous term that misleads the international community, while encouraging Palestinian Arabs, with the right to use all measures to attack Israel, including the use of terrorism.

The Mandate was subsequently protected by Article 80 of the United Nations Charter that recognizes the continued validity of the rights granted to all states or peoples, or already existing international instruments including those adopted by the League of Nations. The International Court of Justice has consistently recognized that the Mandate survived the demise of the League of Nations.

Legal arguments aside, it is worth noting that the Arabs never established a Palestinian state when the UN in 1947 recommended to partition Palestine, and to establish a “Jewish” state and an “Arab” state – not a Palestinian state. Additionally, the Arab countries never recognized or established a Palestinian state during the two decades prior to the Six-Day War when the West Bank was under Jordanian control and the Gaza Strip was under Egyptian control. Nor did the Palestinian Arabs clamor for autonomy, independence, or self-determination during those years.
It is important to point out that political rights to self-determination as a polity for Arabs were guaranteed by the same League of Nations in four other mandates – in Lebanon and Syria [The French Mandate], Iraq, and later Trans-Jordan [The British Mandate].

Any attempt to negate the Jewish people’s rights to Palestine, and to deny them access and control in the area designated for the Jewish people by the League of Nations, is in serious conflict with the Mandate’s legal framework

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Article 80 and the UN Recognition of a “Palestinian State”

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The Signing of the United Nations Charter in 1945.

In the entire debate now taking place on whether the United Nations Security Council or General Assembly has the right to approve the application of the “Palestinian Authority” to be recognized as a new member state of the UN, almost no mention is made of the legal fact that the UN itself is barred by its own Charter from acting upon or approving such an application. The reference here is, of course, to Article 80 of the UN Charter, once known unofficially as the Jewish People’s clause, which preserves intact all the rights granted to Jews under the Mandate for Palestine, even after the Mandate’s expiry on May 14-15, 1948. Under this provision of international law (the Charter is an international treaty), Jewish rights to Palestine and the Land of Israel were not to be altered in any way unless there had been an intervening trusteeship agreement between the states or parties concerned, which would have converted the Mandate into a trusteeship or trust territory. The only period of time such an agreement could have been concluded under Chapter 12 of the UN Charter was during the three-year period from October 24, 1945, the date the Charter entered into force after appropriate ratifications, until May 14-15, 1948, the date the Mandate expired and the State of Israel was proclaimed. Since no agreement of this type was made during this relevant three-year period, in which Jewish rights to all of Palestine may conceivably have been altered had Palestine been converted into a trust territory, those Jewish rights that had existed under the Mandate remained in full force and effect, to which the UN is still committed by Article 80 to uphold, or is prohibited from altering.

As a direct result of Article 80, the UN cannot transfer these rights over any part of Palestine, vested as they are in the Jewish People, to any non-Jewish entity, such as the “Palestinian Authority.” Among the most important of these Jewish rights are those contained in Article 6 of the Mandate which recognized the right of Jews to immigrate freely to the Land of Israel and to establish settlements thereon, rights which are fully protected by Article 80 of the UN Charter.

It should be common knowledge that under the Mandate, all of Palestine was reserved exclusively for the establishment of the Jewish National Home and future independent Jewish State, as was previously decided at the San Remo Peace Conference that took place in April 1920. Or put another way, no part of Palestine was allotted for an Arab National Home or state, since Arab self-determination was being generously granted elsewhere – in Syria, Iraq, Arabia, Egypt and North Africa – which has led to the establishment of the 21 Arab states of today, over a vast land mass from the Persian Gulf to the Atlantic Ocean. There is thus no necessity for a new independent Arab State in the specific area of former Mandated Palestine reserved for Jewish self-determination, most particularly, in Judea, Samaria and Gaza. Creating such a state out of Jewish land would be blatantly illegal under Article 80 of the UN Charter and beyond the legal authority of the UN itself.

In this respect, neither the League of Nations nor its successor, the United Nations, ever had sovereign rights over the land we Jews call Eretz-Israel. As a non-sovereign, the UN has no power whatsoever to allot territory to the “Palestinian Authority” where the allotted territory already belongs to the Jewish People.

Moreover, there is no article in the UN Charter which gives either the Security Council or the General Assembly or even the Trusteeship Council the power to create a new independent state. If the UN had such power, then logically it would also have the inverse power to “de-create” or dismember an existing state, a power it certainly does not enjoy under the UN Charter. If, theoretically speaking, this power did exist, the UN would be in effect a world legislature that could make or unmake states by its own volition, a power that would put in jeopardy the present world order.

For the foregoing reasons, the bill introduced in the US Congress by Ileana Ros-Lehtinen is definitely the proper course of action to follow. UN illegality needs to be roundly condemned and stopped dead in its tracks by an appropriate punitive measure, exactly as Ros-Lehtinen has proposed. Her bill would be even more worthy if it were to include a direct reference to Article 80 and to the fact that the UN has no legal power to create a state or to allot another state’s territory for that purpose, accomplished through the devious or underhanded means of accepting the applicant’s request for membership in the world body.