Three historical documents, taken together, show that, in international law, the Jewish people have sovereignty over all of the area of Mandatory Palestine (present-day Israel, West Bank and Gaza).
Three historical documents, taken together, show that, in international law, the Jewish people have sovereignty over all of the area of Mandatory Palestine (present-day Israel, West Bank and Gaza). This idea originates with the author Howard Grief, and is expounded in his recent book The Legal Foundation And Borders Of Israel Under International Law: A Treatise on Jewish Sovereignty over the Land of Israel.
There is a subset of this theory, associated with Professor Eugene Rostow, that makes a lesser claim: that all Jewish people have a right to migrate into any part of former Mandatory Palestine. I will consider them together as the Grief-Rostow (G-R) theory.
The theory can easily be proved to be wrong by the following arguments. This is not an accumulation of evidence: each one of these arguments individually disproves it.
I introduce two new legal documents into the analysis:
The concept of a dispersed people (the Jews) having sovereignty over a defined territory (Palestine) is meaningless. Sovereignty implies rule, or at least the right to rule. How could the Jews rule over a territory where most of them are not resident? There is no ‘government of all the Jews’ that could exercise such authority, nor could there be. It is an impossible concept.
Article 22 of the League of Nations Covenant introduces the concept of a Mandated territory:
To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilization and that securities for the performance of this trust should be embodied in this Covenant. The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations… …and should be exercised by them as Mandatories on behalf of the League.
Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory.
The Mandatory system is directed towards the well-being and development of the inhabitants of the mandated territory, not to anyone outside the territory. At that time, Jews were a small minority in Palestine. To give sovereignty over the majority of the inhabitants to the minority, or to world-wide Jewry, would conflict profoundly with that sacred trust accepted by the Mandatory power.
The Mandates are temporary arrangements designed to lead to independent states. Any legal rights they grant expire at the end of the Mandate, to be replaced by the law of the successor state.
The San Remo Conference in April 1920 was a meeting of the Allied Powers who had conquered the Turkish Ottoman Empire in the first world war. In the Same Remo Resolution it specified how it would implement Article 22 of the League of Nations Covenant in the conquered territories. It agreed that Syria and Mesopotamia (now Iraq) should be provisionally recognized as independent nations. With respect to Palestine it said the following:
The High Contracting Parties agree to entrust, by application of the provisions of Article 22, the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory, to be selected by the said Powers.
The Mandatory will be responsible for putting into effect the declaration originally made on November 8, 1917, by the British Government, and adopted by the other Allied Powers, in favour 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, or the rights and political status enjoyed by Jews in any other country.
The declaration of 1917 is the Balfour Declaration, the words of which I have emphasised.
The resolution does not explain the term ‘national home’, which has no defined legal meaning. This was left up to the British (to whom the Mandate was given). They were to implement their own policy, though acting under supervision of the League.
The Resolution ‘favours’ the idea of a Jewish national home in Palestine, and asks the Mandatory to put it into effect. It does not recognise an inherent right, or create a legal right, for a Jewish national home in Palestine.
The San Remo Resolution is an agreement between the Allied Powers. It is not a legal instrument of international law.
The League of Nations Mandate for Palestine is the primary document of international law concerning the Mandate and the Jewish national home. The Preamble repeats the words of the Balfour Declaration emphasised above.
Some Zionists, seeing the phrase “nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine”, noting that it does not mention political rights, conclude that political rights are being removed from the non-Jewish inhabitants, and that the Jews are to become sovereign. This is wrong for two reasons: there is no accepted distinction between civil and political rights; and ‘absence of evidence is not evidence of absence’ – the failure to mention political rights does not mean they do not exist. Furthermore in Article 6, with respect to Jewish immigration, a stronger formula is used. The Administration is to ensure that the rights and position of the existing population are not to be prejudiced.
The Preamble goes on to say:
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.
The historical connection ‘gives grounds’ for reconstituting the Jewish national home in Palestine but it does not recognise an inherent right, or create a legal right, for such reconstitution.
The phrase ‘Jewish national home IN Palestine’ was introduced by the First Zionist Conference in Basle, Switzerland, 1897; occurs in the Balfour Declaration, and is repeated in the San Remo resolution, the League of Nations Mandate for Palestine, and the Declaration of Establishment of the State of Israel. None of these documents use the phrase ‘Palestine IS the Jewish National Home.
Some Zionists fail to see the difference. I use a simple example. Compare the two phrases: there is a bathroom IN my house; my house IS a bathroom. The phrase Jewish national home IN Palestine admits the possibility of there being something else in Palestine.
This can be understood geographically. It is possible that the Jewish national home could be established in only part of Palestine. In which case, rights, if any, to Jewish sovereignty or immigration would be limited to a part of Palestine.
In fact, this happened in the early days of the Mandate, when the British administration split Palestine into two parts: Transjordan to the east of the river Jordan, with the west side of the Jordan remaining as Palestine. The Jewish national home was limited to being in the new Palestine, west of the river. But that area was still not specified AS the Jewish national home, further subdivision was still possible. So it is not possible to say that the Mandate could give any sovereignty or immigration rights in the whole of Palestine (west of the river).
The phrase Jewish national home IN Palestine can also be understood abstractly: it allows for the possibility of another national home in Palestine, namely the national home of the people already living there, the Palestinians. To say that Palestine would no longer be the national home of the existing inhabitants would clearly be incompatible with Article 22.
Examination of the Articles of the Mandate shows that this is indeed the nature of the Palestinian state that the Mandate was intended to create. The Articles making specific references to Jews are the following:
Article 2. The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.
The grammatical structure of this Article is complex, and some wishful-thinking Zionists jump to the conclusion that the physical closeness of the phrases ‘Jewish national home’ and ‘self-governing institutions’ imply that only Jews are to participate in the ‘self-governing institutions’. This is wrong, as can be illustrated by breaking down the sentence as follows:
The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure: (1) the establishment of the Jewish national home, as laid down in the preamble; and (2) the development of self-governing institutions. The Mandatory shall also be responsible for safeguarding the civil and religious rights of all the inhabitant of Palestine, irrespective of race and religion.
Article 4. An appropriate Jewish agency shall be recognised as a public body for the purpose of advising and co-operating with the Administration of Palestine in such economic, social and other matters as may affect the establishment of the Jewish national home and the interests of the Jewish population in Palestine, and, subject always to the control of the Administration to assist and take part in the development of the country
Article 6. 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.
Article 7. The Administration of Palestine shall be responsible for enacting a nationality law. There shall be included in this law provisions framed so as to facilitate the acquisition of Palestinian citizenship by Jews who take up their permanent residence in Palestine.
These articles show that the means by which the Jewish national home was to be established in Palestine was by facilitating Jewish immigration and by helping the migrants to settle, with a view to them joining the existing Jewish and non-Jewish inhabitants as citizens of Palestine. There is no prohibition on non-Jewish immigration in the document.
There is not the slightest hint anywhere in the document that Jews were to have any privileged position in Palestine. It does not give any sovereignty to the Jews.
Article 6 encourages Jewish immigration under suitable conditions. It does not say that immigration is to be unlimited in numbers or in time. Article 22 of the Covenant says the primary purpose of the Mandate is the development and well-being of the existing inhabitants. Certainly Jewish immigration from Europe could contribute to both of these. The immigrants brought capital, and technical skills. But the sudden influx of large numbers of foreigners (from far away and a from a very different cultural background) could lead to social unrest and conflict, which would not contribute to the well-being of anyone. The British Government decided, sensibly and humanely, to restrict immigration to the rate at which the migrants could be economically absorbed. In 1939 they also decided to further restrict the rate of immigration, and to stop the process when Jews numbered one-third of the population.
The Mandate did not give an unlimited right for Jews to migrate to Palestine, the Mandatory was to allow it only under suitable conditions; and there was no suggestion that Jewish immigration should continue until Jews dominated the country, as some Zionists claim.
At the end of World War 2 in 1945, the League of Nations was replaced by the United Nations, and the Mandatory system was replaced by the concept of United Nations Trusteeships, described in Chapter XII of the Charter. However, the Mandates in the former Turkish Empire were not converted into Trusteeships, because they were coming to an end. Lebanon and Syria had already achieved independence by 1943 and 1944 respectively and Transjordan became independent in 1946.
Article 80 of the Charter, from Chapter XII, says:
Until such agreements [Trusteeships] 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.
Palestine was in no state to become independent, because of conflict between Arabs and Jews, and as far as I am aware there was no discussion (before 1947) of replacing the Mandate with a Trusteeship. So the only relevance of Article 80 to Palestine is to confirm that the Mandate continued unchanged.
Because of the ongoing conflict in Palestine, Britain gave up on the project of creating an independent Palestine incorporating the Jewish national home, told the UN that it wanted to end the Mandate, and asked the UN to take over ‘The Question of Palestine’. The UNGA recommended a plan to partition Palestine into a Jewish state and an Arab state. The Jewish side accepted the Plan, but the Arab side rejected it.
At 24:00 on 14 May 1948 the Mandate terminated, and at 00:01 on 15 May the Declaration of Establishment of the State of Israel became effective. Israel was declared with its sovereign borders as specified in the UN Partition Plan. (See my article ‘The borders of Israel‘ for more on this.)
The Jewish national home in Palestine vanished into history with the end of the Mandate, to be replaced by a Jewish State in part of Palestine. Nothing in the Mandate has any relevance today to anything outside the sovereign borders of Israel.
No government, court or international organisation has ever supported the G-R theory.
The concept of the Jewish national home in Palestine derived from the Articles of the Mandate is entirely in agreement with the British government’s explanation of the policy given in the Churchill White Paper of 1922. Also of note is the resolution of the Zionist Congress of 1921 quoted by Churchill, which expresses the concept perfectly.
Unauthorized statements have been made to the effect that the purpose in view is to create a wholly Jewish Palestine. Phrases have been used such as that Palestine is to become “as Jewish as England is English.” HMG regard any such expectation as impracticable and have no such aim in view. Nor have they at any time contemplated, as appears to be feared by the Arab Delegation, the disappearance or the subordination of the Arabic population, language or culture in Palestine. They would draw attention to the fact that the terms of the Declaration referred to do not contemplate that Palestine as a whole should be converted into a Jewish National Home, but that such a Home should be founded in Palestine.
In this connection it has been observed with satisfaction that at the meeting of the Zionist Congress, the supreme governing body of the Zionist Organization, held at Carlsbad in September, 1921, a resolution was passed expressing as the official statement of Zionist aims “the determination of the Jewish people to live with the Arab people on terms of unity and mutual respect, and together with them to make the common home into a flourishing community, the up-building of which may assure to each of its peoples an undisturbed national development.”
During the last two or three generations the Jews have recreated in Palestine a community now numbering 80,000… …When it is asked what is meant by the development of the Jewish National Home in Palestine, it may be answered that it is not the imposition of a Jewish nationality upon the inhabitants of Palestine as a whole, but the further development of the existing Jewish community, with the assistance of Jews in other parts of the world, in order that it may become a center in which the Jewish people as a whole may take, on grounds of religion and race, an interest and a pride.
But in order that this community should have the best prospect of free development and provide full opportunity for the Jewish people to display its capacities, it is essential that it should know that it is in Palestine as of right and not on sufferance. That is the reason why it is necessary that the existence of a Jewish National Home in Palestine should be internationally guaranteed, and that it should be formally recognized to rest upon ancient historic connection.
This is the first document where the word ‘right’ is used in connection with the Jewish national home in Palestine. The grounds for facilitating Jewish immigration into Palestine were based on the historic connection with the land, and Jews who legally migrated into Palestine to join the native Jews and contribute to the community were there by right. I use the word ‘legally’ because in the latter years of the Mandate there were many illegal Jewish entrants, who managed to evade the British controls.