By Dr. Matthijs de Blois, Senior Fellow, thinc.
The Mandate for Palestine, created by the Council of the League of Nations (LoN) in 1922, carries not only historical significance but also strong legal weight. The rights of the Jewish people that are implied in the legal obligation to ensure the establishment of the Jewish national home laid one of the most important foundations for the existence of the State of Israel under international law. By the late 1930s, the LoN had become dysfunctional, and it was finally dissolved in July 1946. It was in effect replaced by the United Nations (UN), which came into existence in 1945. This brought to an end the system of Mandates under the LoN, and the role and responsibilities of the League and its Permanent Mandate Commission in relation to the existing Mandates. In 1947, the British finally announced their intention to terminate their responsibilities under the Mandate. The State of Israel was proclaimed on 14 May 1948 and the British withdrew on 15 May 1948.
The withdrawl of the British – 15 May 1948
It can be argued that the British decision and the dissolution of the LoN (including the Permanent Mandate Commission) did not—and could not—terminate the Mandate itself or in any case the rights and obligations under the Mandate for Palestine, nor the pre-existing rights of the Jewish people or the obligations of the United Kingdom as Mandatory, because these had originally been conferred by the Allied Powers, not the League.[i] The principle of estoppel arguably prohibits the Allied Powers of World War I (United Kingdom, Italy, France and Japan) from denying the validity of the rights which they granted to the Jewish people in the context of the Covenant of the LoN, and which were consummated in the Mandate for Palestine.[ii] The same principle applies to all states that were members of the Council of the LoN that adopted the Mandate in 1922. It can also be applied to the Central Powers of World War I, who recognized the Mandate System, as well as to all member States of the League.[iii] It can, finally, be applied to the US, who as an Associate Power sided with the Allied Powers in World War I, and who in a special treaty concluded with Great Britain on 3 December 1924, consented to the Mandate for Palestine.
League of Nations succeeded by the United Nations
But there is more. The United Nations was entitled to assume certain responsibilities of the League of Nations with respect to the Mandate system and existing Mandates, but it did not—and could not—take over the role of Britain as Mandatory. The UN and its Member States should according to Article 80 of the UN Charter respect the rights of the Jewish people and other peoples under the Mandates. It states:
Except as may be agreed upon in individual trusteeship agreements, made under Articles 77, 79, and 81, placing each territory under the trusteeship system, and until such agreements have been concluded, nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.
This provision, which reflects the international law principle of “acquired legal rights”, constitutes part of the transitional arrangements from the system of Mandates under the LoN to the system of Trusteeships under the UN Charter. No attempt was made to place Palestine under the Trusteeship system: a Trusteeship Agreement for Palestine was never created.[iv] The well-known Resolution 181 (II) – including the ‘Partition Plan’ – that was adopted by the General Assembly (GA) on 29 November 1947, is a non-binding decision by the GA with recommendations on the future of the Mandate territory; it is not a Trusteeship Agreement. Such an Agreement is a treaty to be agreed upon by the States directly concerned, including the mandatory power.[v] Resolution 181 (II) contains a reference to the Trusteeship Council (a supervisory organ established by the UN Charter) as an authority which is involved in the proposed special international regime for the City of Jerusalem, but this does not make the Resolution the equivalent of a Trusteeship Agreement.[vi]
The ‘Palestine clause’
Article 80 of the UN Charter is often referred to as the “Palestine Article” or the “Palestine Clause”. This indicates that it was drafted with the Palestine Mandate in mind.[vii] From the drafting history, it is clear that a Jewish delegation present at the San Francisco Conference in 1945 where the UN Charter was drafted, intended to protect the right of settlement of the Jewish people guaranteed by the Mandate.[viii] It was successful in having the word peoples included in the text, which was missing in the original draft. All participants in the discussions of the draft knew that the term peoples referred to the Jewish people in Palestine.[ix] By including this term the drafters of the UN Charter explicitly observed the general principle of law, which requires respect for acquired legal rights.[x] Even if one would argue that the Mandate itself was brought to an end by the decision of the British Government to terminate it in 1948, Article 80 supports the “persistence of rights, interests and claims thereunder …”.[xi]
The International Court of Justice
The International Court of Justice (ICJ) has also underlined the relevance of the rights bestowed by a Mandate on the people concerned after the demise of the LoN. The Court argued in 1950 for the continuing relevance of the obligations and rights under a Mandate as follows:
“Their raison d’ être and original object remain. Since their fulfilment 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. Nor could the right of the population to have the Territory administered in accordance with these rules depend thereon. This view is confirmed by Article 80, paragraph 1, of the Charter, which maintains the rights of States and peoples and the terms of existing international instrument until the territories in question are placed under the Trusteeship System.”[xii]
In an Advisory Opinion in 1971, the Court again emphasized the continuing relevance of the rights of a people under a Mandate after the dissolution of the League of Nations.[xiii] Unfortunately, the ICJ did not follow these precedents when the issue of the relevance of the Mandate for Palestine for the rights of settlement of the Jewish people was at stake in the Wall Advisory Opinion in 2004.[xiv]
To sum up: the political and territorial rights of the Jewish people with respect to the land of Palestine pursuant to the Mandate for Palestine remained valid and effective after the termination by the British of their responsibilities as Mandatory, and of the LoN itself. In fact, the decision of the British in 1947, and their actual withdrawal from Palestine in May 1948, did not terminate either their responsibilities as Mandatory, or even the Mandate itself.
When the State of Israel was established on 14 May 1948, Israel assumed as a matter of law (pursuant to the principle of uti possidetis juris) the administrative boundaries of the Mandate for Palestine; the eastern boundary of which was the River Jordan. However, Israel was immediately attacked by several Arab states, and parts of the territories within those boundaries and that were intended under the Mandate for the Jewish homeland were belligerently occupied by Egypt and Jordan (Gaza and ‘West Bank’ respectively). The purpose of the Mandate system – the creation of an independent State – was thus realized only in a part of the Mandate territory.
As the 1949 Armistice Agreement with Israel reflects, Israel has not abandoned its rights.
In light of the foregoing, the territorial rights of the Jewish people under the Mandate are still relevant for determining the legal status of the parts of the former Mandate territory over which Israel (re-)gained control in June 1967, and that have not (yet) been formally incorporated in the State of Israel: Judea and Samaria (‘West Bank’) and Gaza.
[i] See Gauthier, Jacques Paul, Sovereignty over the Old City of Jerusalem: A Study of the Historical, Religious, Political and Legal Aspects of the Old City, Institut universitaire des hautes études internationales, 2007 p. 561.
[ii] Grief, Howard, The Legal Foundation and Borders of Israel under International Law, Mazo Publishers, Jerusalem, 2008, pp. 175-222.
[iii] Ibid. pp. 216-217.
[iv] After 1949 it was no longer possible to subject the territory of Palestine to the U.N. Trusteeship system, as Israel had by then became a recognized State and a Member of the United Nations: see Article 78 of the Charter.
[v] Article 79 UN Charter.
[vi] The Trusteeship Council itself made this clear in December 1947: “Although the General Assembly of the United Nations vested the Trusteeship Council with power to define, to constitute and to administer the international regime of the City of Jerusalem, it is obvious that the City is not a trust territory . . . .” Quoted by Stahn, Carsten, The Law and Practice of International Territorial Administration, Cambridge University Press, Cambridge 2008, p. 101, footnote 48.
[vii] Grief, Howard, The Legal Foundation and Borders of Israel under International Law, Mazo Publishers, Jerusalem, Israel, 2008, p.257. See also Lauterpacht, Hersch, Article 18 of the Mandate for Palestine and the Dissolution of the League of Nations, Chapter 4 of International Law: Volume 3, Part. 2-6: The Law of Peace (ed. E. Lauterpacht), Cambridge University Press, Cambridge etc., 1977, pp.101-112, at p. 108.
[viii] See Rostow, Eugene, The Future of Palestine, National Defense University, Mc Nair Paper 24, November 1993, p. 10 and 15n; Grief, Howard, The Legal Foundation and Borders of Israel under International Law, Mazo Publishers, Jerusalem, Israel, 2008, p. 255-257; Auerbach, Jerold, How Benzion Netanyahu Helped Put in the U.N. Charter A Clause That Could Yet Save the Jewish State, Special to the Sun (New York), May 2, 2012 http://www.nysun.com/foreign/how-bezion-netanyahu-helped-put-in-the-un/87809/
[ix] Grief, Howard, The Legal Foundation and Borders of Israel under International Law, Mazo Publishers, Jerusalem, Israel, 2008, p. 257.
[x] See on general principles of law as a source of law Chapter I.
[xi] Shaw, Malcolm, “The League of Nations Mandate System and the Palestine Mandate: What Did and Does It Say about International Law and What Did and Does It Say about Palestine?”, Israel Law Review 49(3) 2016, pp. 287-308, at p. 303.
[xii] ICJ 11 July 1950 International Status of South-West Africa Case, Advisory Opinion ICJ Reports 1950, p. 128 at p.133.
[xiii] ICJ 21 June 1971 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) Advisory Opinion, ICJ Reports 1971, p. 16 at pp. 33-38.
[xiv] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion I.C.J. Reports 2004, p. 136.