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 COMMENTARY AND ANALYSIS

The Legal Boundaries of Israel in International Law
Anthony D'Amato
Leighton Professor of Law
Northwestern University School of Law

This is an essay on the legal boundaries of the State of Israel. It is based entirely on my understanding of international law. I have no first-hand experience of the Middle East, and I speak entirely from law books and the documentary record. I am not a Jew. I am not an Arab. In trying to assess my internal biases, I must disclose that I feel a huge debt to the cultural and intellectual enrichment flowing to me from the contributions of Jews: in Broadway musicals (my especial passion), movies, theatre, law, and the philosophy of science. I have also been a steadfast supporter of the State of Israel as it was established, and under the boundaries it was given, on May 15, 1948.

1. Palestine was a Mandate under Article 22 of the League of Nations Covenant; in our parlance, a trust. The beneficiaries were the people residing in Palestine. The Mandatory Power (trustee) was Great Britain. Palestine was defined in Article 22 as one of those Mandates that was 菟rovisionally recognized as an independent nation but nevertheless needed on its road to statehood the 殿dministrative advice and assistance of a Mandatory Power.

2. The League of Nations was dissolved in 1946. Its duties regarding Mandates were assumed by the new United Nations that had been established in 1945. The Palestinian Mandate, of course, remained intact, just as a trust remains intact even though the supervising judge or even the trustee may change.

3. Great Britain informed the UN of its intention to relinquish its trusteeship. By then a great deal of common law regarding Mandates had developed through the years of the League of Nations. Under that law, Great Britain could not simply abandon its responsibilities to the people of Palestine. It could only relinquish its trusteeship responsibilities if it left the people of Palestine in a viable self-governing position.

4. In consultation with the Trusteeship Council of the United Nations, Great Britain argued that it could not leave Palestine as a unitary self-governing state, but it could relinquish its trusteeship if the territory were divided into two states, a Jewish State and an Arab State. The question then turned to the allocation of Palestinian land between the two new entities. Great Britain argued that the division should not reflect the actual numbers of Jews and Palestinians living in the territory because the Jews, as an ethnic/religious entity, had a right to invite the surviving victims of the Holocaust to come and live in the new Jewish State. As a result, the proposed 菟artition plan would give substantially more territory to the Jewish State than was warranted by the number of Jews living in Palestine. (I might add that I have always believed that the British decision was both morally and legally justified.)

5. On November 29, 1947, the General Assembly adopted the key "partition" resolution, Resolution 181, ratifying the British proposals. It also provided for an independent international mixed status for the city of Palestine. In my opinion, this Resolution constitutes the first, last, and only legally authorized demarkation of the Israeli-Palestine borders. It was legally authoritative not because it took the form of a UN Resolution, but solely because the UN Resolution itself served as a ratification of the British proposal to divide the Mandate and leave its governance to the people. In other words, the alpha and omega of the legal power resided in Great Britain as the trustee and not in the United Nations. As trustee, it had the power to partition the territory if and only if that was the best way to provide for its future self-government. The General Assembly did not derive its legal powers directly from the Charter of the UN, but rather as surrogate for the League of Nations as it devolved its powers of mandate supervision to the UN and, through the UN, to the General Assembly itself. Legal title to the land was not conferrred by Resolution 181 alone but rather by Great Britain's acceptance of the terms of Resolution 181. The State of Israel owes its entire legal existence to the proper exercise by Great Britain of its League of Nations' Mandatory Power over the territory of Palestine. It owes nothing to the United Nations and, by the same token, cannot claim any additional rights from the United Nations. Instead, as soon as Resolution 181 was passed (and of course Great Britain voted in its favor), the legal borders between Israel and Palestine were forever fixed. Those borders henceforth could only be changed by one of two processes: first, explicit agreement between Israel and the authorized representatives of Palestine, and second, in the few cases of limited disputed areas where the verbal description contained in Resolution 181 was ambiguous in terms of existing maps or surveys, by international arbitration. The Security Council had and has no power to change international borders.

6. Although Israel proclaimed itself as a state within six months of Resolution 181, the Palestinians - for convoluted internal reasons plus the land-grabbing ambitions of surrounding Arab states - did not seriously entertain the idea of a State of Palestine for almost another forty years. In any event, as is well known, neighboring Arab states, proclaiming that the United Nations had sold out the Palestinians, attacked Israel. To the world痴 astonishment, Israel not only prevailed in the war, but beat back the Arab invaders and in the process more than doubled the previously partitioned territory of Israel. Israel then ousted the Palestinians who were living in the conquered area, and they have ever since been remitted to conditions of squalor in refugee camps that dot the Middle East.

7. The six-day war of 1967 further increased the size of Israel at the expense of the Palestinians. In the direct aftermath of the war, the Security Council of the United Nations, exercising its Chapter 7 powers under the UN Charter, passed Resolution 242 calling for the withdrawal of Israeli forces 吐rom territories of recent conflict and 殿chieving a just settlement of the refugee problem. Israel and the U.S. interpreted the Resolution痴 call for "withdrawal from territories," and not "the" territories, as a less than complete withdrawal because the word 鍍he was not mentioned. The mild joke in circulation at the time was that anyone opposed to the U.S.-Israeli interpretation was "anti-semantic". Israel took the position that it was therefore not legally required to withdraw from the West Bank and the Gaza Strip that it had just conquered, and indeed that it could erect Israeli settlements in those territories.

8. But semantics aside, in my view the Security Council simply does not have the power to take land from A and give it to B, irrespective of its undoubted legal power in the event of a threat or breach of the peace to restore international peace and security. The sanctity of international borders is a principle of international law that antedates the Charter of the United Nations; in fact it goes back five thousand years. No smaller nation would have supported the UN Charter at the San Francisco Conference in 1945 if the draft Charter had given to the five permanent menbers of the Security Council - the United States, Great Britain, France, Soviet Union, and China - the legal power to change international frontiers. After all, the five permanent members at the time had been wartime allies, and in concert they could reshape the world at will if they had been given such an unprecedented power. Morever, there is nothing in the Charter of the United Nations that even remotely hints of a power or entitlement in the Security Council to change international borders. Even Resolution 242 only calls for a withdrawal of forces, and makes no mention of a permanent change in boundaries. As far as the Israeli settlements are concerned, they are clearly illegal; an occupying power has no right to de facto annexation of portions of the territory by population transfers.

9. Overshadowing the arguments in Paragraph 8 above is the undeniable fact that the Kellogg-Briand Peace Pact of 1928, as definitively glossed by the International Tribunal at Nuremberg in 1948, has abolished forever the idea of acquisition of territory by military conquest. No matter who was the aggressor, international borders cannot change by the process of war. Resort to war is itself illegal, and while self-defense is of course legal, the self-defense cannot go so far as to constitute a new war of aggression all its own. And if it does, the land taken may at best be temporarily occupied, but cannot be annexed. Thus after all the wars, the bloodshed, aggressions and counter-aggressions, acts of terror, reprisals, and attendant UN resolutions, nothing has changed the legal situation as it existed after Resolution 181 in 1947. The legal boundaries of Israel and Palestine remain today exactly as they were delimited in Resolution 181.

COMMENT: I find it remarkable that the recent Saudi proposal - to normalize relations with Israel in return for its withdrawal to pre-1967 boundaries - has not been accepted with enthusiasm by the Israeli government. After all, it would legally transfer to Israel - if my preceding analysis of the background international law is correct - more than double the land allocated by the Partition Resolution of 1947. It would also bring peace to these troubled historic lands. But it appears that Prime Minister Sharon痴 mood regarding the Palestinians is not 努hat have you done for me? but rather 努hat have you done for me lately? His apparent inability to take a longer-term moral and legal perspective on the situation is deeply troubling. I fear for the continued viability of the Israelis, entrapped as they are as a sliver of territory in a vast Islamic ocean with their enemies access to 都uitcase nuclear bombs increasing daily. But apart from what Sharon may be thinking, it seems to me that his strategic goals are inconsistent. He of course wants, and is absolutely entitled to have, the physical security of the Israeli people. But he also wants their ethnic/religious identity to be preserved, irrespective of their individual marriage choices. These two goals clash with each other when the question is raised of the right of return of the Palestinian refugees. If Palestine were to become a State, and if Arafat would have his way (as opposed to the Islamic extremists in Palestine), the refugees would come back in a tidal wave. This would, in Sharon痴 view, endanger Israeli identity and uniqueness. So it seems that Sharon must be committed both to avoiding peace and avoiding a settlement that would allow the Palestinians to return. Rhetoric aside, what he appears to want, unfortunately, is the peace process and not peace itself.

Anthony D'Amato is the Leighton Professor of Law at Northwestern University School of Law, where he teaches courses in international law, international human rights, analytic jurisprudence, and justice. Professor D'Amato was the first American lawyer to argue (and win) a case before the European Court of Human Rights in Strasbourg, and he has litigated a number of human rights cases around the world. He is the author of over 20 books and over 110 articles.

April 8, 2002

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What are your views on the issues raised by this JURIST column?

  • discussion archive

  • Wednesday July 17, 2002 at 11:30 pm
    Another legal factor which must be taken into account is the principle of territorial integrity. In the past nations had unlimited freedom to cede their own territory. However UN General Assembly Resolution 1514, passed 14 December 1960, called for the territorial integrity of all states to be maintained, and since that date the only changes in international boundaries have involved colonial or manditory powers ceding land to independent states. It is doubtful that there is any basis in the current applications of international law for any Israeli annexations in the west bank or gaza at the expense of Palestine in a formal peace treaty. The treaty would have to acknowledge 1949 armistice line as being the Israeli-Palestinian border (except for the corpus seperatum in Jerusalem) and only minor changes in the frontier could be made by mutual consent after the formal treaty was signed. Resolutions 242 and 338 call for "secure and recognized boundaries". there is nothing in either of these resolutions calling for annexations or for boundary shifts, although they do imply that Israel can continue to occupy some land outside her borders in order to maintain her safety and security. None of the other Arab-Israeli peace treaties (with Egypt, Jordan and the still-unratified treaty with Lebanon) involve any annexations or the ceding of territory.

    Mike Anderson
    Toronto, Canada

  • Thursday July 18, 2002 at 3:31 am
    Prof. D'Amato, I'm not impressed by your "magic trick" of comparing the German occupation of France to Israel's "occupation" of the disputed territories because the former ("in one meaning of the term") was a "lawful military occupation" whereas the latter is such under an entirely different meaning of the term.

    Omar, perhaps rather than propagandizing here you should do some homework. For example, compare the standard of living, health conditions, agricultural output, literacy rate and academia and political freedoms in the territories before and after 1967 (hint: all of these improved under the Israeli administration).

    Mr. Mobarek, I think you misunderstood Abba Eban's comment which you emphasized. It was meant to underscore that recognition of Israel was not to be dependent upon the creation of another (Arab) State. That two states were not required.

    Does this embrace of one part of UNGAR 181 imply that the entirety of it was still relevant? This goes back to our "parsing" discussion, but I believe that in the context of his comments Eban was not suggesting what you are saying and that quite to the contrary, in the aftermath of the war caused by the violent Arab rejection of the proposed partition, that Eban understood (already 50 years ago) that the partition was history (DOA).

    If you prefer, Eban was not so much invoking 181 as the original intent behind it.

    Leeron Kopelman
    Ann Arbor, MI, USA

  • Thursday July 18, 2002 at 3:37 am
    I agree with Mr Mobarek's general suggestions. The borders of the former mandate have to be respected. I also accept the general parametres that he sets to whatever happens within those borders. I take these to be: either a Jewish-Arab state or two states, Jewish and Arab.

    I would like to point out, however, that Israel is a Jewish-Arab state, so UNGAR 181 doesn't apply. It absorbs as many Arabs as it can without putting its own existence at risk. This is in line with the principle of self-preservation. Israel doesn't absorb elements which it is only bound to expel later, which is what Jordan did.

    The problem with the borders is that the borders of the mandate have been violated by Jordan and Egypt. The current suggestions put forward build on these illegal conquests. Whatever UN resolutions are invoked, that is the setting of the current Palestinian problem. The Gaza Strip and the West Bank are acquisitions of territory by aggression. Since certain solutions have been rejected asserting that this or that would reward occupation, the same thing should be said of the Palestinian independence movement. The envisioned Palestinian state would also have its territory ultimately because of acquisition of territory by use of force.

    As to the question of recognition, as soon as Israel had been recognized by other states, it was a state regardless of UNGAR 181. Its existence cannot depend on UNGAR 181. That would amount to conditional recognition, which isn't approved of in international law. The "provisional" Palestinian state would have had the same problem.

    As to UNGAR 1514, it is interesting that is brought up now, and not in connection with the cession of Palestine by Jordan. Anyway, that is a General Assembly resolution, which, as has been pointed out by Professor D'Amato, doesn't make internation legislation. An UNGAR should give way whenever "peace and security" are threatened in the sense of the UN Charter. That is why the UN exists. As to UNSCR 242, "secure and recognized boundaries" might have been built on the 1949 armistice line as long as the problem was Jordanian and Egyptian aggression. Now the aggression doesn't come from Jordan and Egypt but from Palestine itself.

    As to the Kosovo analogy, the fundamental difference is that Israel answers for the security of Palestine, whereas the UN/NATO troops answer for the security of Kosovo. If the Yugoslav government can still change the Kosovo border with Macedonia, which means Kosovo is Yugoslav territory, the same applies a fortiorito Israel's sovereignty over Palestine. If the Palestinians don't know where they are now, can we trust them to know where they are going?

    Jari Nousiainen
    Finland

  • Thursday July 18, 2002 at 4:18 am
    The assertion of improved conditions in the territories is a matter best judged by the perceptions of the Palestinians themselves.

    The construction of schools and hospitals is mentioned simply because recent events lack any essence of a humanitarian concern.

    The tank incursions and air bombings are seen by most as acts of reprisal, camouflaged as an attempt to discover and punish only the people who supplied the bombs.

    If you regard the written word as propaganda, perhaps you prefer video recordings made by independant newsmen (the few who were allowed in, and not killed).

    This venue, if it is to arrive at a fair verdict on the border dispute, must allow assertion of factual statements, at least those subject to proof, as fair evidence.

    Omar Rumi
    Malaysia

  • Thursday July 18, 2002 at 5:47 am
    Mr. Kopelman, I must apologise for not properly addressing my last comment you, sent in response to your protest regarding my "propagandising", and not properly doing "homework".

    The point made by Mike Anderson deserves restating:

    "While there was no legal form of a state on the land, the occupants of the land had, and continue to have, rights to it. At the very least, one should reasonably assert that this new expanded Israel should include as citizens all the Palestinian Arabs that have legitimate claim of residency in the Palestine mandate. It would also be reasonable to assume that, if a democratically elected government takes control of this new state, Israel would become Palestine by virtue of the Palestinian Arab majority that would ensue from such territorial expansion.

    If the Palestinians should agree that Israel is entitled to all disputed land west of the Jordan, on condition that prior claims be honored, and that full citizenship status be granted in the expanded new state, along with equal protection under Israeli law, would Israel find that agreeable? If not, then all discussion of legal borders must proceed with the understanding that Israel will oppose any reasonable settlement terms, and the world must then prepare to deal with the consequences of a decision made without the accord of Israel.

    The Palestinians will resist reduced status in a new state, and the Israeli's oppose voting rights for the Palestinians. Thus the conflict continues, and it becomes doubtful that a fair resolution of the legal border issue will contribute to a peaceful settlement.

    Omar Rumi
    Malaysia

  • Thursday July 18, 2002 at 8:00 am
    I did not make the statement that is attributed to me above. It was made by Mr. Mobarak.

    Mike Anderson
    Toronto, Canada

  • Thursday July 18, 2002 at 10:13 am
    Yes, it is my mistake, and I apologise for it.

    Omar Rumi
    Malaysia

  • Thursday July 18, 2002 at 2:00 pm
    Mr. Kopelman, I understand your point about Mr. Eban痴 statement. My goal was to point out that he understood that the resolution calls for the creation of two states. My goal was also to highlight that the creation of the state of Israel, the very definition that was accepted by the UN, was based on borders defined in UN GAR 181. Subsequent annexation of land based on the 1949 armistice expanded this state by force.

    There has been much talk about the Arab aggression of 1948. Like the war in 1967, the historical facts do not support the characterization that the war was pure a byproduct of the assault by the Arab armies. If one looks at the action prior to the start of the war, one would get some sense of the progression of events. The Haganah, the predecessor to the IDF, had occupied most major cities in the Arab 壮tate of UN GAR 181 in the months preceding the war. Arab villages were attacked, their residents 粗ncouraged to leave, and the villages itselve burnt to the ground to discourage any prospects of return. Etzel and Lehi, who were more radicalized groups of Jewish resistance in the Palestine mandate, had gone much further and committed documented atrocities against unarmed Palestinian Arab civilians (e.g. incidents like the Deir Yassin massacre). Palestinian Arabs left their land en masse because of fear of what would happen to them at the hands of the Jewish forces.

    There is little doubt that the Arabs did indeed have a substantial hand in starting the war in 1948. It is fairly clear and evident that anti-Jewish rhetoric coming from Cairo, Amman, Damascus, Beirut, and Baghdad was very strong. The flood of Palestinian refugees into the neighboring countries brought with it stories of the atrocities that they had to endure, which only helped to inflame the situation even further. It is also without question that Arab armies did indeed initiate the war and attacked Israel. However, it would be a mistake to characterize Israel as an innocent victim of aggression or that Israel had any intentions of honoring UN GAR 181 irrespective of the Arab attack.

    Mr. Nousiainen, I am glad that we finally found some common grounds to agree on. However, I am troubled by the exception that you noted. I am not sure what you mean by 賠 without putting its own existence at risk. I presume that 訴ts here refers to a Jewish-Arab state. How could its own citizens threaten this state痴 existence? Citizens can be a source of destabilization for governments, but not a threat to the existence of a state. I am afraid that any criteria established to govern the rights and status of a particular segment of a population will invariably become discriminatory. The 壮elf in self-preservation has to refer to a Jewish-Arab state and not just a Jewish state. If there were minority elements in the population that elects to destabilize a democratically elected and pluralistic government, they would be dealt with in accordance with the law of the land.

    As for the statement regarding the creation of a Palestinian state by force, I can only repeat something that I read some time ago. The only difference between a freedom fighter and a terrorist is who is in power at the time. There is no doubt or question that Palestinian attacks on Israeli civilians are deplorable and barbaric, no more or less so than the attacks of Etzel and Lehi on the British and Palestinian Arabs before the Israeli independence. Just as Etzel and Lehi痴 ideology represented the minority view within the Jewish community of their time, the ideology of suicide bombers represents the minority view of the Palestinian population now. However, both populations grudgingly accepted the barbaric tactics of these more radical groups out of desperation. Prime Minister David Ben-Gurion forced Etzel and Lehi to disarm and arrested many of their ranks after Israeli independence. I would venture to say that the Palestinians would do the same if they have something dear to them to loose. Right now, they have nothing to loose.

    Sameh Mobarek
    Chicago, Illinois, USA

  • Friday July 19, 2002 at 12:50 am
    Prior to the outbreak of violence in September 2000, 98% of the Arab population of the disputed territories lived under the rule of the Palestinian Authority. At Camp David / Taba, only the consent of Arafat separated the Palestinian Arab population from an Arab state on 100% of Gaza, a contiguous 95% of Jordan's former "West Bank" (including the Arab neighborhoods of eastern Jerusalem), another 2% of compensatory land, and a $30 Billion fund for refugees (who would have the so-called "right of return" to the nascent Arab state). Do you really think they had nothing to lose?

    Your comment that "the ideology of suicide bombers represents the minority view of the Palestinian population" flies in the face of numerous polls that indicate that up to 85% of the population supports even this bombing of innocent civilians (and that a slim majority views the current violence as a method by which to destroy Israel).

    It is disingenuous to compare such attacks to the actions of Etzel or the Stern Gang in the 1940s. For example, the common example of the bombing of the King David Hotel neglects to mention that this building served as the British Military HQ and that a warning note was delivered (but not heeded) precisely because the building (and its files) were the target, not the people, not even the soldiers and officers.

    Yet the historic survey would not be complete without also mentioning the Arab "riots" and "disturbances" of 1929 and 1936-1939 -- which brought forth the murder of Jewish civilians and car bombs at markets.

    I know Mr. Mobarek is only repeating the mantra from the 1980s regarding "freedom fighters" and "terrorists", but I think it is one of the silliest sayings:

    Freedom Fighting describes an objective, an end.

    Terrorism describes a method, a means.

    Some Freedom Fighters chose to utilize terrorism, others do not. Yet not all terrorists are freedom fighters. According to Walter Laqueur, "A comparison of terrorist activities over the last century shows, beyond any shadow of a doubt, that violent protest movements do not appear where despotism is worst but, on the contrary, in permissive democratic societies or ineffective authoritarian regimes." I hope everyone here is familiar with the "Hama Rules", an example of a dictator (Assad I of Syria) ruthlessly attacking and wiping out most of a city (20,000 - 60,000 killed according to an article in the NY Times) for tolerating opposition. Acts of terrorism also fail to garner the impact they seek when the state controlled press censors the story in the absence of a free press.

    So coming back to Aba Eban, I will agree with you that he understood that 181 spoke of 2 states. But what we're trying to ascertain is whether he, or the UN and world at large, continued to consider the proposed partition as relevant in the aftermath of the war and the signed armistice agreements. Surely by 1967 UNGAR was no longer on the table, as can be seen in UNSCR 242's failure to mention a two-state solution and failure (like UNGAR 194) to require an Israeli withdrawal to the borders proposed by UNGAR 181. (Recall also that 242 is relevant because it served as the basis of Israel's peace treaties with Egypt and Jordan and also the Oslo Declarations of Principles between Israel and the Palestinian Authority.)

    Mr. Rumi, the figures which I alluded to provide the yardstick you were using. Except that they don't support your argument, which is why you now say we shouldn't look at figures but should listen to what (some) members of the populace say. Nor are you clear on why your talking points are necessary in a discussion about the legal aspects of the conflict. If you really think that these are necessary to this discussion, then at least first do your homework rather than casting aspersions.

    As for your point (that Israel doesn't want to jeopardize its Jewish character by annexing land that has a large Arab population), it is nothing new. It is exactly why Israel is seeking a two-state solution. Now, if a responsible party could be found amongst the Palestinian Arabs to also seek this compromise... I'm sure a deal could be worked out by the politicians and diplomats even as the academics continue to discuss and rehash history.

    Leeron Kopelman
    Ann Arbor, MI, USA

  • Friday July 19, 2002 at 1:06 am
    Earlier in this debate I asked Mr. Kopelman whether he had read the exchanges from the very beginning, as it seemed to me that he came in late and rather unaware of what had gone before. He then posted a comment that he was aware of the earlier remarks. So I won't ask him again. Instead, I think he may be taking a polemical approach here, which is to repeat arguments that have already been answered on the theory that if logic doesn't work, repetition might dull the reader's mind. To say, for example, that "surely by 1967 UNGAR was no longer on the table," misses the point of the previous exchanges which was that UNGAR 181's partition solution is the only legal item on that table. Whether it was unnoticed afterward, or buried in a series of military conquests, or a minor adjunct to Israel's peace treaty to Jordan, or whatever else Mr. Kopelman can come up with, he is not saying anything that would legally affect the legal-juridical status of UNGAR 181. Mr. Kopelman is at his best when he supplies new arguments/information, but apparently he doesn't know or doesn't want to know anything about the topic of this symposium, the "legal boundary of Israel under international law."

    Anthony D\'Amato
    Northwestern Law School
    Illinois, USA

  • Friday July 19, 2002 at 5:47 am
    Mr Mobarek, I think we can agree on some of the parametres, but in order to determine how far our agreement goes, maybe you would like to explain whether you are for the two-state or one-state solution within the former mandate borders (where our agreement may stop).

    In theory, the one-state solution would be the preferable one, but I think we are too accustomed to approaching the problem from the Israeli side. Are the Arabs ready for an Arab-Israeli state? Sure, if that can get them the "right of return". But does it go both ways? How ready are the Palestinians to allow Jews on the Palestinian-controlled territory?

    If you were to say at this point, which is closer to the Arab-Jewish state - Israel (proper) or the West-Bank/Gaza - what would you answer? There are Arabs with full citizenship in Israel proper. However, there are no Jews in the Palestinian-controlled territory. Those Jews who are there, are called "illegal settlers", which is a misnomer, if it is indeed true that the settlements are built on vacant land.

    You have mentioned ethnic cleansing before. Considering the Palestinian policy towards the Jews, you have to admit that the Palestinians are the ones who are exercising ethnic cleansing. The Jews can't enter the Palestinian-controlled territory except in the capacity of combatants, which isn't Israel's fault. If Israel were to sway the magic wand and allow the Palestinians to settle across the green line en masse, the prediction is that even that part of the Israeli territory would be ethnically cleansed. During the Jordanian occupation up to 1967, the West Bank was verboten to the Jews. Just don't get confused by the rhetoric. There are Arabs in Israel, though they are not called Palestinians, just to show how badly Israel treats the Palestinians.

    As to the question how the state's own citizens could put the existence of the state at risk, just ask the Jordanians. Just because Jordan can't be accused of ethnic cleansing doesn't mean that Jordan didn't create the refugee problem that is now blamed on Israel. In the face of such myopia, it seems impossible to make any long-term plans that would satisfy the Palestinians.

    So the one-state model (i.e. the post-Oslo arrangement) can only be a transitory phase, not more. On the other hand, if you agree on this, then you have to admit that the border between Palestine and Israel proper is an internal matter, as it is. The borders within the former mandate are not fixed, so the uti possidetis doesn't apply within it.

    Ironically, what confuses the creation of the Palestinian state is the fact that it has already been recognized by some states. I think we would have to qualify this as a premature recognition, which has been regarded as a violation of the prohibition of non-intervention, in this case of non-intervention in the internal matters of Israel.

    Contrary to what has been suggested, it seems likely that if, in the future, there are international borders between Israel and Palestine, they will not coincide with anything any of us has suggested. It will be a political solution.

    After the second intifada we should at least understand that the "secure...boundaries" mentioned in UNSCR 242 and 338 can't possibly coincide with the partition plan of UNGAR 181 - and probably not even with the armistice line of 1949.

    Jari Nousiainen
    Finland

  • Friday July 19, 2002 at 11:10 am
    Mr. Kopelman, your request for specifics is reasonable. Although I have no arcane sources of knowledge at my disposal, some information regarding the present condition of the infrastructure of the occupied territory is readily available. Pleae object to any statement of fact or opinion that is erroneous or biased.

    The list of Israeli de-construction is easier of access than that of construction. Others here can provide additional information to give balance.

    For a start: the new airport in Palestine was completely destroyed by Israeli forces, apparently without provocation of any kind. The building devoted to Palestinian cultural affairs was trashed and rendered unuseable. Any number of homes and other private structures have been destroyed by shellfire and air bombs. The headquarters building of the PLO containing the offices of the chairman destroyed, as were a number of other public buildings.

    The major construction activity in the occupied territory seems primarily confined to the settlements, and these are built for Israeli's upon land that Palestinians claim to own with ancient title.

    The location of schools, hospitals and other facilities built in the occupied territoties with Israeli funds and labour continues to be of interest. Would you kindly supply the references you alluded to? That would be helpful.

    As to the relevance of "talking points," a proper determination of legal borders should include the motives of the parties to the dispute, their moral and ethical behaviour, along with any attempt to conceal facts and goals. In the argument for fixing borders along international legal lines, the consequences of the decision are also germane, which further widens the scope of debate.

    All testimony admissible in a court of equity appears relevant. A final ruling that is fair devolves directly on a determination of fitness for the prevailing party. To find otherwise is to channel the law through a narrow funnel fashioned aforehand for the purpose. The law knows no such constraint.

    Omar Rumi
    Malaysia

  • Friday July 19, 2002 at 2:09 pm
    Mr. Rumi, I don't find your new argument any more convincing than your prior argument and really don't think I need to respond to it (if anyone else disagrees, I'd be happy to explore those tangents).

    Prof. D'Amato: My point was simply that, despite your argument that UNGAR 181 should have been the only document on the table, I don't believe it was seriously considered during the discussion of UNSCR 242. Since 1967, it is 242, not 181, that has been the basis of signed agreements between sovereign nations (Israel, Egypt and Jordan) and which serves as the foundation of the Oslo peace process (as agreed to by Israel and the PA in the Declaration of Principles). Perhaps the PA erred in signing this, perhaps they should not have. But they did, and that is the reality of the situation (both political and legal) today.

    You yourself stated things could be "changed by one of two processes: first, explicit agreement between Israel and the authorized representatives of Palestine." Don't the agreements between Israel and the PA qualify, even if they only established the framework and not final borders?

    Leeron Kopelman
    Ann Arbor, MI, USA

  • Friday July 19, 2002 at 6:35 pm
    Mr. Kopelman, rather than address all the statements you made and add to the series of negative comments generated by your last remarks, I will respond to one specific point you raised. In mentioning Etzel and Lehi, I was not just referring to the King David Hotel bombing. I do not really need to. The list of the groups activities is extensive and proves my point well enough. In addition, as the annals of history record, even officers of the Haganah referred to the groups as terrorists so I really do not feel the need for us to debate the point.

    Mr. Nousiainen, I still believe that UN GAR 181, from a legal point-of-view , is valid and applicable. I am willing to set aside this belief to debate the applicability and practicality of the one-state solution, but I think that, as we work through its implications, we will find that the two-state solution is also valid from a practical point-of-view. If my memory serves me correctly, the British went through the same debate in the late 1930s and 1940s. The Peel Commission recommended the partitioning of the Palestine mandate as the only option to achieve the conflicting goals of the Balfour Declaration and the principle of self-determination upon which the mandate was based. The Woodhead Commission later reversed this recommendation. Then the British finally reached the conclusion that the mandate was not workable.

    The difficulty of the one-state solution is manifest in the level of animosity between the two peoples. For this solution to work, Israelis would have to accept the fact that they will be a minority in this new state. It would also mean that Palestinians, who would invariably be in control of the government by virtue of their majority, would have to extend the equal the rights and justice principles to Israelis. In all fairness, I cannot see a Palestinian government doing that. The Palestinians have been living under the yoke of Israeli occupation for 35 years. There are generations of new Palestinians born to the virtual ghettos of refugee camps and rundown Bantustan-like areas. They grew up without adequate education or healthcare facilities, and were raised on the single-minded hatred that their parents felt for Israelis and had these feelings propagated by their own standard of living. Their leaders were the products of 1948, 1967, and decades of armed resistance against Israel. In addition, if one takes the action of other Arab governments in dealing with opposition and dissention within their ranks or by minority groups as an indication of the behavior of a Palestinian government, one would have grave reservations that any Palestinian government can become democratic in the commonly accepted sense of the word.

    At the same time, I cannot see an Israeli-controlled government working out either. Israelis have their own history of struggle and sacrifice. Against the odds, Israelis were able to establish their society and base it on democratic principles. But as a result, successive Israeli governments have found it justifiable to apply Machiavellian principles when dealing with others that they regard as enemies. Time and time again, Israeli governments (mostly the Executive Branch) circumvented even provisions of Israeli Basic Law to protect the rights and liberties of Israelis to the maximum extent possible at the expense of the rights and liberties of Palestinians, as if the former is somehow superior to the latter. As Mr. Rumi pointed out, the bill that was recently introduced for its first reading (I know it is not law yet, but I do not recall how far it is in the review process) in the Knesset to make all state land 遷ews-only land is another indication of some of the bias in another branch of the government. The Israeli High Court tries to balance these tendencies by striking down clearly unconstitutional laws and prohibiting government practices that are clearly counter to the spirit of both Israeli and International Law. In addition, there are some members of the Knesset that try to bring balance to some of the extreme views expressed by other members of the legislative body. But these moderates in the Knesset and the High Court are not part of the operations of Shin Bet or the IDF. They are not living among settlers in the West Bank and Gaza. They are not walking among villagers in remote areas of Israel. There are, and continues to be, strong indications that some of the practices outlawed by the High Court still continue. There are also indications that there are other practices that, if brought before the High Court, would be found to be unconstitutional. The view and attitude of the Israeli government will be difficult to change until the current generation of politicians gives way to newer generations that have not experienced the events of the past 50 years.

    As for the other points you mentioned, I would like to make the following quick comments:

    Those Jews who are there, are called "illegal settlers", which is a misnomer, if it is indeed true that the settlements are built on vacant land.. For the sake of clarity when we are discussing issues related to settlements, you will have to include not only the settlements themselves but also the infrastructure (roads, tunnels, bridges, raw water system and usage, etc) built to support these settlements. First, it would be difficult to justify settlements on occupied land under international law, whether or not they are vacant. Second, many of the settlements were built on land, in whole or in part, confiscated from Palestinians owners. Third, the very nature of settlements suggests the possibility of annexation of occupied land, which, of course, is not acceptable under international law unless it is consented to by all parties.

    The Jews can't enter the Palestinian-controlled territory except in the capacity of combatants, which isn't Israel's fault.. This is not an intellectually fair statement. During the era of Apartheid, I am sure that a white South African citizen could not enter a Bantustan unless he was riding in an APC. Until recently, a Protestant would have to have a death wish to take a stroll in west Belfast. This has nothing to do with 粗thnic cleansing.

    As to the question how the state's own citizens could put the existence of the state at risk, just ask the Jordanians. Palestinians were not Jordanians, and Jordan was not a Palestinian state. The Palestinians tried to takeover the government and not threaten the existence of the state. Had they succeeded, Jordan痴 character and government would have changed, but it would have continued to exist as a state.

    On the other hand, if you agree on this, then you have to admit that the border between Palestine and Israel proper is an internal matter, as it is. Either we agree that Israel would exist as an Arab-Jewish state or we do not. One cannot assert that a two-state model should exist, but the model should be governed by the rules of a one-state model. One can only look at how well this logic played out between the Serbs and the Kosovars before UN/NATO intervention.

    Sameh Mobarek
    Chicago, Illinois, USA

  • Friday July 19, 2002 at 11:41 pm
    Mr. Kopelman,your desire to forego rebuttal is duly noted. As an established principle, unrebutted evidence stands as just that.It cannot later be argued that no opportunity to rebut was available.

    It was you who stated that Israel had "raised the standard of living" in the occupied territory. The request for references stands. You are certain in your opinion, but yesterday's news brings pictures of new houses destroyed, with the avowed intent to generate a new generation of refugees.

    Please note that a "convincing argument" is probably not possible, especially where recalcitrance joins a resolute opinion.Effective advocacy requires that all issues be joined, so that that truth may eventually emerge.

    The Palestinian people suffer from lack of representation, and as you recall, "nature abhors a vacuum." One should not be surprised if gratuitous comment appears, though the effective audience be a new generation...

    Omar Rumi
    Malaysia

  • Monday July 22, 2002 at 3:15 am
    I wasn't speaking of Northern Ireland or South Africa, I was speaking of the Palestinians. Apparently, the Palestinians are totally incapable of ethnic cleansing. The cleansing of the Jews from the West Bank under the Jordanian occupation may not thus have been ethnic cleasing at all, but simply an anticipation of the alleged ghetto-building in the West Bank under the later Israeli "occupation", which wasn't even in the cards at that time. When the rest of your argument rests on the "Israeli occupation" premise, how can you even make a comparison to South Africa and Belfast?

    The Versailles Treaty made with Germany after WW I was technically valid until the fall of the Berlin Wall. Maybe you could use this comparison to prop up UNGAR 181?

    It is pointless to rehearse everything that Etzel, Irgun, Haganah, Stern Gang etc. did. No matter how many other Jewish terrorist organizations you can mention, it doesn't alter their irrelevance from the present point of view. They did what they did to achieve a goal, which was a state of their own. The Palestinians have been offered a state of their own, but they prefer terrorism. All the "arguments" presented in favour of terrorism, which most of the arguments here amount to ultimately, aren't even worth rebutting. Maybe it's indeed your objective to "dull the minds" of everybody else by repeating the same arguments, so that you will be the ones left to win the trophy. I don't have the time for this. Congratulations!

    Jari Nousiainen
    Finland

  • Monday July 22, 2002 at 9:27 am
    Mr. Rumi, there is nothing for me to rebut. You never backed your initial claims regarding the standard of living in the disputed territories before and after 1967 (they were wrong, but the burden of proof is not on me to demonstrate that; your substantiation was that some people living there would argue the point). Now you have supplemented that with vague and off-topic anecdotal assertions regarding Israel's alleged recent actions. Seemingly you think this demonstrates that Israel's response to 22 months of terrorist attacks on its civilian population is what caused this terrorism in the first place.

    Do not confuse my reluctance to engage in off-topic debate as an indication that your innuendo is correct (though I will point out that, oddly, this is the only support you have provided for your argument -- that it stands not because you have provided evidence but because I have not bothered to disprove it). Finally: no, not all issues must be "joined".

    Mr. Mobarek, I'm not sure that Haganah officers referred to Etzel/Lehi/Stern as "terrorists". I think the Hebrew word in use was "saboteur". But that's not so relevant. My objection was to your mapping of current day Palestinian Arab terrorism (primarily directed at civilians) to Jewish terror (chiefly guerrilla warfare directed at the British military) in the 1940s, seemingly ignoring Arab terrorism present in every decade since the 1920s, as if it was but a recent and necessary pre-state phenomenon.

    Regarding the "settlements" and land ownership:

    "Israel does not expropriate any private land for the purpose of establishing settlements. Settlements are only established on public land after an exhaustive investigation has confirmed that no private rights exist in the land in question. The process of investigation includes an appeals process, through which any individual claiming rights in the land can object. "
    http://www.israel.org/mfa/go.asp?MFAH0dgj0

    Leeron Kopelman
    Ann Arbor, MI, USA

  • Monday July 22, 2002 at 1:22 pm
    In response to Mr Kopelman's comment: "Seemingly you think this demonstrates that Israel's response to 22 months of terrorist attacks on its civilian population is what caused this terrorism in the first place."
    It is a widespread belief that the Israeli attacks are only the result of defence against an intolerable number of terrorist attacks.
    Statistics prove that this is simply false. A simple reading will show that at every stage of the conflict the Israeli forces where the escalating element.

    1987 22 Palestinians dead 0 Israelis
    1988 306!! Palestinians 10 Israelis
    1989 304!! Palestinains 9 Israelis
    The numbers at this point do not look so one sided after the Palestinians introduced suicide bombing. But the pattern clearly shows that suicide bombing emerged after the violence from the IDF and not the other way round.
    So in keeping with the "response" logic, it seems that the IDF had predicted the suicide bombing wave that will emerge in 2000 and started punishing Palestinians for it in 1987.

    For full stats see: http://www.btselem.org/English/Statistics/Total_Casualties.asp

    S Mourad
    Canada

  • Monday July 22, 2002 at 1:52 pm
    In response to Jari:
    "No matter how many other Jewish terrorist organizations you can mention, it doesn't alter their irrelevance from the present point of view. They did what they did to achieve a goal, which was a state of their own."

    I guess the Palestinians are blowing themselves up for the sheer pleasure of it!!!

    Are you saying that terrorism is acceptable if a clear and just political goal is sought?

    S Mourad
    Canada

  • Monday July 22, 2002 at 3:51 pm
    Mr. Kopelman, a google search for "palestinian airport destroyed" will return over 17,000 references to sources which give details of Israeli destruction. YOu are invited to rebut any or all of the reports.

    As you may recall, the initial assertion that Israel had "improved" the standard of living in the occupied territory was yours. My response was for documentation, which was not provided.

    You deny that a specific list of property destroyed by the IDF was provided, yet a cursory glance at the recent posts will show you are mistaken.

    If you believe that any topic is "off the subject," it would be informative if you would be specific.

    You have provided a statement asserting that the settlements are always built on land where there has been an "exhaustive study" to assertain that "no private rights exist." I will address this in detail later, and since it is you, again, introducing the subject, it cannot later be said that an off-topic subject was brought forward by others. Your position that rebuttal is not required defies legal logic, and does nothing to further your defense of Israeli policy.

    MR. Nousiainen, I agree with Mr. Mourad in highlighting the double standard you hold regarding the use of force in pursuit of a political goal.

    Mr. Kopelman justifies the earlier Israeli history of terrorist activity as "a necessary pre-state phenomenon." We must now ask if he finds the same justification acceptable and correct for Palestinian actions?

    Omar Rumi
    Malaysia

  • Monday July 22, 2002 at 6:03 pm
    Mr. Mourad would be more honest if he informed us that nearly half of the Palestinian Arabs killed in the first intifadah (his 1987 & 1988 figures) were murdered as "collaborators" by Arab death squads, not by Israeli forces.

    Nor is Mr. Mourad's larger argument at all convincing. How many Palestinian Arabs died at the hands of Israel in 2000 prior to the outbreak of Arab violence in September? How many in 1999? 1998? Let's face it. The Palestinian Arab violence in this second intifadah was the response (Arafat's counter-offer) to the Clinton and Barak peace plans.

    That more Arabs have died than Israelis can be attributed to many factors. The Arab death squads murdering their own for starters, not to mention the inclusion of suicide attackers and other combatants in the Arab death total. It exemplifies the prevaling martyrdom mentality, where many are willing (and do) attack superior forces in defensive positions (apparently they value the next life more than this life).

    Mr. Mourad would have us believe that the Arab death toll was the result of indicriminate Israeli "escalation". Yet a closer examination of his own numbers reveals a different truth. A new comprehensive study by the International Policy Institute for Counter-Terrorism reveals that despite the fact that roughly 3x as many Arabs have died in this intifadah as Israelis, more Israeli women, children and elderly have been murdered (in absolute, not just relative terms). For example, only 61 Arab women have been killed (5%) vs. 160 Israeli women (30%). Israel's actions have not been indiscriminate nor directed at the civilian population. Can the same be said with regard to Arab terrorism?

    Mr. Rumi seems to think that Israel is on trial here. Since much of what he asserts I said is incorrect, all I can suggest is that he reread my previous comments. For example, I did not justify "terrorist activity as 'a necessary pre-state phenomenon." Mr. Rumi dropped the "as if" from the beginning of my sentence, which questioned if Mr. Mobarek was using this justification.

    Similarly Mr. Rumi neglects that he first raised the "perception" about the standard of living in his post on Friday July 12, 2002 at 3:57 pm. His on-going charade of substantiation is that 1) the Palestinians have this "perception" and 2) that I have not disproved it. Again, I will not do Mr. Rumi's homework for him. I will sleep soundly tonight with the knowledge that the number of schools, hostpitals, tractors, cars, and refrigerators in the territories dramatically increased after 1967. So did agricultural output, GNP, etc. Until Mr. Rumi provides evidence backing his "perception", I have nothing to refute.

    So in a last effort to return to the topic of this symposium let me repeat my question to Prof. D'Amato:

    Do the treaties signed by Israel and Egypt, Jordan and most importantly between Israel and the Palestinian Authority modify the legal status in accordance with what is written at the end of point 5 in the essay at the top of this page?

    Leeron Kopelman
    Ann Arbor, MI, USA

  • Monday July 22, 2002 at 7:19 pm
    Mr. Kopelman, you are missing the point I am trying to get across. Terrorism, in any form, is against all moral and legal principles that civilized societies are based on. Whether it is Palestinian or Israeli terrorism, our denunciation of it should be clear, swift, and objective. Contrary to what Mr. Nousiainen seems to be suggesting, I am not making an argument for terrorism. I am merely asserting that we should not employ a double standard when discussing Palestinian struggle for independence.

    As for your assertion that Arabs have been involved in terrorist activities since the 1920s, I would tend to agree. However, I would not stop at activities of Arabs only and would assert that Israelis too have been involved in terrorist activities during the same time period.

    As regards to settlements, I would suggest that you review other sources aside from the Israeli government痴 Ministry of Foreign Affairs web site. It is unlikely that you will get a fair and objective recounting of facts and analysis from official Israeli or Arab government sources on the subject. There are several sources on the Internet that will give you a more balanced point-of-view and a more comprehensive review of the actual practices in the West Bank and Gaza. There are also several other books and publications on the subject that are available online.

    Mr. Nousiainen, I am dismayed at the insinuations you are making. I have gone to great lengths to maintain my objectivity on this very complex subject. While I cannot claim to be successful with every attempt, I have tried to see both points-of-view on the issue and acknowledge wrongdoing when I see it. However, I have yet to see you point to or acknowledge a single action that the Israeli government did that would make them culpable for anything at all. Your attitude, and the attitudes of others who decided to simply propagate strictly pro-Israeli views, seems to suggest that successive Israeli governments have done absolutely NOTHING wrong over the entire sordid 50-year history of the conflict. Aside from the sheer intellectual dishonesty of the assertion, this serves no other purpose than to prolong the suffering of both Israelis and Palestinians, and would probably rank high among the reasons why this conflict has lasted as long as it has. I will stand ready to engage in objective and sincere debate when you feel you are ready for it.

    Sameh Mobarek
    Chicago, Illinois, USA

  • Monday July 22, 2002 at 7:31 pm
    I would like to add another question to Professor D但mato on to the list started by Mr. Kopelman. Can the majority approving UN GAR 181 justify the authoritative nature of the resolution?

    Sameh Mobarek
    Chicago, Illinois, USA

  • Monday July 22, 2002 at 11:19 pm
    In response to Mr Kopelman:

    1) The figures I supplied are actually figures of Palestinians mudered by Israelis and vice versa.

    2) The reasons I quoted the 1st 3 years of the conflict is to demonstrate the fallacy of portraying the Israeli violence as a response to the Palestinian suicide bombing. The numbers show clearly that widespread violence was started by the IDF before any Palestinian activity.

    3) As for the care the IDF is taking in discriminating in its violence here a very unsetteling fact:


    Since the biginning of the intifada, 115 Palestinian children under 13 were killed, 10 Israeli.


    S Mourad
    Canada

  • Tuesday July 23, 2002 at 1:16 am
    Mr. Mourad seems to be very selective in his age choice. But one need note that of the 58 Arab children killed under the age of 14, 52 were males and most of them were at the top end of that age bracket. They weren't killed in the safety of their homes, they were in the midst of hostilities. (At least one 13-year old was a suicide bomber, a couple of others participated in an armed attempt to infiltrate a "settlement".)

    In stark contrast, Israeli children intentionally murdered are evenly distributed among sexes -- they were random victims. In relative percentage terms, more Israeli children have been killed than Palestinian Arab children.

    If we are to look at mature (over 40) non-combatant casualties, like with female fatalities the number of Israelis intentionally murdered (167) is, in absolute terms, more than double the number of mature non-combatant Palestinian Arabs killed (70).

    The assymetry in deaths is primarily amongst combatants, perhaps because Israeli soldiers tend to be in defensive positions and wear bullet-proof vests while Arab combatants tend to engage in suicidal attacks.

    Mr. Mobarek, I didn't see why it was necessary to raise Etzel/Lehi in order to condemn current day Arab terrorism. It was your comparision that compelled me to point out that, contrary to your assertion, the vast majority of Palestinian Arabs support acts of terrorism (even suicide bombings), whereas the majority of Jews in the 1940s, including the Jewish Agency, opposed such tactics. Similarly I am confused why you found it necessary to convolute "terrorist" with "freedom fighter" (again, though, I admit that this is a pet peeve of mine).

    Allow me also to add that the Arabs exaggerated the Israeli attrocities for their own political purposes (while little consolation, the death toll at Deir Yassin -- as confirmed by a study at Bir Zeit University -- was half of what was claimed, there is no evidence that even a single woman was raped, and many of the casualties were combatants killed during the fighting). Similarly, whereas you alleged that the refugees streaming out of Israel-to-be had tales of horrors, the reality (according to Glubb Pasha, the British commander of the Arab Legion) is that most fled well before the fighting had reached their villages and without ever seeing an Israeli soldier, let alone an attrocity.

    If you condemn terrorism than we agree and can move on. (:

    Leeron Kopelman
    Ann Arbor, MI

  • Tuesday July 23, 2002 at 10:52 am
    "Mr. Mourad seems to be very selective in his age choice. But one need note that of the 58 Arab children killed under the age of 14, 52 were males and most of them were at the top end of that age bracket."

    115!!! Palestinian children under the age of 14 were killed since the start of the intifada.
    I have not tried to massage the data, as you claim, but simply reported the sources I have:
    http://www.btselem.org/English/Statistics/Minors_Killed.asp

    The point you are making is certainly valid, even though your numbers seem wrong. This is not a case of racial cleansing as the Deir Yacine massacre was. I am accusing Israel of excessive use of force and occupation both of which have driven the Palestinians to the only defense they could muster (ie indiscriminate terrorism).

    The idea that Israel is simply defending itself against massive terrorist attacks is contrdicted by the killings that show that the Israelis started killing Palestinians in large numbers when their only weapons where rocks.

    If Israel was truly looking for security with no expansionist agenda a simple withdrawl from the territories would suffice.
    This would be my last post on this subject as I think this thread is more directed at the legal side of the bounderies.

    S Mourad
    Canada

  • Tuesday July 23, 2002 at 11:53 am
    PS Israeli army killed today 8 children, aged 2 month to 11 years, in a "targeted" operation against Hamas leader.

    S Mourad
    Canada

  • Tuesday July 23, 2002 at 7:04 pm
    I am a non-lawyer who has been reading with great interest the discussion in this forum for the last month or so. I note that there is a tendency for the participants to deviate from the initial theme, "The Legal Boundaries of Israel in International Law", and get involved with all of the rest of the issues in the Arab Israeli dispute. In the interest of facilitating retuning the discussion to the original theme, may I request the learned participants to opine on degrees of similarity of this dispute to others in recent history? Have there been inter-ethnic disputes over territory not included within the borders of internationally recognized states that was eventually resolved? Is the Arab Israeli dispute so unique that there is no clear paradigm for a solution?

    S. Ames
    USA

  • Wednesday July 24, 2002 at 4:41 am
    Mr. Mourad, your figure of 115 is since 1987. My figure of 58 is since September 2000.

    That only 6 of the 58 deaths were girls indicates that these are not randomly inflicted casualties. Not children killed in the safety of their homes or at border checkpoints where one would expect the presence of a similar number of boys and girls. (Yesterday's attack stands in stark contrast to this.)

    Furthermore, most of these "13 & under" casualties are actually 12 or 13, not 2 or 5 or 8 year olds. I know that only a small number of these were armed assailants and suicide bombers, but the data suggest that these ~12 year olds are engaged in behavior that puts them in harms way, for one example, throwing Molotov cocktail firebombs at soldiers.

    Let me remind you President Assad's words at the October Arab League summit, to the effect that if the Palestinian Arabs wanted to stay in the safety of their homes they could do so. His conclusion was that since they are willing to sacrifice themselves, they deserve the support of the Arab world.

    Nor am I convinced that "indiscriminate terrorism" against distant civilians is the "only" form of "defense" the Palestinian Arabs can muster. That sounds like an excuse/justification of terrorism. To the contrary, if illegal combatants would cease their attacks on Israeli targets, they wouldn't need any defense.

    Are you really suggesting that Israel withdraw unilaterally as a show of good faith? That Israel has withdrawn from ~95% of the territories it acquired in 1967 does not impress you? That Israel has turned over 42% of the disputed territories (where 98% of the Arab population resides) to the PA is insufficient as a show of good faith?

    Leeron Kopelman
    Ann Arbor, MI, USA

  • Wednesday July 24, 2002 at 10:08 am
    To Mr Kopelman, in order not to distract from the main subject of this forum I will reply to your latest post in the Mideast Discussion forum.

    S Mourad
    Canada

  • Wednesday July 24, 2002 at 11:38 am
    The latest atrocity elicits my last contribution to the subject of The Legal Boundaries of Israel. It is the opinion of the world that now the border the Israeli's deserve is the low tide line along the Mediterranean Sea. Ancient Jewish documents foretell a third and final dispersal. Every day the Israeli actions bring that day closer.

    Omar Rumi
    Malaysia

  • Wednesday July 24, 2002 at 4:20 pm
    So getting back to the topic, here is my question for Prof. D'Amato:

    Do the treaties signed by Israel and Egypt, Jordan and most importantly between Israel and the Palestinian Authority modify the legal status in accordance with what is written at the end of point 5 in the essay at the top of this page?

    Mr. Mobarek also asked:

    Can the majority approving UN GAR 181 justify the authoritative nature of the resolution?

    [My apologies if I left out any other open points of discussion.]

    Leeron Kopelman
    Ann Arbor, MI, USA

  • Thursday July 25, 2002 at 7:02 am
    Thanks to Mr. Kopelman for restating the questions. First, you have to be a state to sign a treaty, which excludes the Palestinian Authority. Second, A treaty between A and B cannot change the territorial rights of C. So, my answer to your question would be "no." As for Mr. Mobarek's question, UNGAR 181 was not, in my view, a "resolution" in the normal sense of a nonbinding expression of attitude or policy by the General Assembly. Rather, in this special case, it was a surrogate for an authoritative finding by the Trusteeship Council which should have had jurisdiction over the Palestine question but was not given jurisdiction over it. The "mandates" regime of the League had to go somewhere, and in my view it went to the UN as a whole, which means that it went to the General Assembly. (If I recall correctly--and someone out there can advise me on this point--the committees on information which supervised the peaceful transition to decolonization of a great many small territories, were a creature of the General Assembly.) As a general matter--and in response to Mr. Ames' question whether the Israel-Palestine conflict is similar to many others--I think we're dealing here with a most unique situation. The closest analogy is rather distant--the one I mentioned about the South West Africa Cases. There's really nothing similar enough to the Palestine border dispute to glance any light at it. That's why it's even misleading to use words like "treaty" and "resolution" in this context, because they obscure more than they disclose. The essence of the situation is that this is a mandate, a trusteeship if you will, that cannot be wholly conceptualized within the framework of law courts. It takes a certain amount of familiarity with the rise of the Chancery court system in England and the idea of equitable jurisprudence to get a handle on what the framers of the Covenant of the League of Nations had in mind. Palestine is the last remaining mandate, and we probably will not have a chance to use this ancient learning again, but it has turned out to be a very important mandate. We scholars do not have the time or talent to go to the Middle East and get on a soapbox or help distribute food to the refugees or network at great length with distressed Israeli citizens, but we can do what we do best, which is to dig below the surface of the arguments and charges and invective that characterize debates on this subject, and see if doing the "legal thing" might in some small way possibly help.

    Anthony D\'Amato
    Northwestern Law School
    Chicago, Illinois, USA

  • Thursday July 25, 2002 at 3:25 pm
    Professor D但mato, thank you for your elaboration. As I mentioned in previous comments, I always believed that the UN had authority over the mandate by virtue of Article 22 of the Covenant of the League of Nations and Chapters 11 and 12 of the subsequent UN Charter. Great Britain, as mandatory power, had authority over the mandate as a proxy for the League of Nations. When they abandoned the mandate, they lost any special authority, aside from their power as a voting member of the General Assembly, to approve or disapprove any changes to the mandate (partition would certainly be one) as detailed in Article 79 of the UN Charter. When the mandate was terminated, sole authority over the underlying trust territory reverted to the General Assembly (reference Article 85(1)). The Trusteeship Council痴 purpose was to render assistance to the General Assembly in carrying out its (the General Assembly痴) duties in the trust territories (reference Article 85(2)). Consequently, the General Assembly had jurisdiction over the trust territory to pass UN GAR 181 and did so to discharge its duties in Article 76.

    Perhaps what I am still a bit unclear about is the force behind UN GAR 181. This comes back to the definition of an 疎uthoritative finding. As I understand it, a finding requires a high level of consensus among UN members for it to become an 疎uthoritative finding and part of international law. From explanations given, am I correct in assuming that a finding, in the context of UN GAR 181, is more like an 疎dministrative finding by an authority with subject matter jurisdiction and not so much an 疎uthoritative finding within the context of international law? Also, if the issue were ever brought before the ICJ, what weight would the court give to such a finding? What would be the key issues that the court would have to decide on?

    Sameh Mobarek
    Loyola University Law School
    Chicago, Illinois, USA

  • Thursday July 25, 2002 at 9:50 pm
    Neither Professor D'Amato nor Mr. Mobarek have addressed the issue of continuing residual British sovereignty in the Palestine Mandate after the mandatory power abandoned the Mandate on 15 May 1948. It must be noted that even though Japan abandoned her Pacific Islands Mandate after World War Two, and even though the UN Security Council awarded the Pacific Islands mandate to the United States as a Trust Territory on 2 April 1947, Japan still formally ceded her sovereignty over the Pacific Islands mandate in article 2, paragraph (d) of the San Francisco Peace Treaty of September 1951, indicating that she still possessed residual sovereignty over the mandate until this date. This in turn would indicate that Britain, the mandatory power, continued to exercise residual sovereignty over the Palestine mandate until her formal declarations of 29 January 1949, in which she recognized the State of Israel, and 27 April 1950, when she recognized Israeli and Jordanian annexations up to the 1949 armistice demarcation line. It should also be noted that the PLO found it neccesary to declare the independence of Palestine a second time in Algiers on 15 November 1988, shortly after Jordan ceded the west bank to her in July 1988, and that the UN General Assembly did not recognize the PLO as "Palestine" until December 1988. This would indicate that the first Palestinian declaration of independence, in Gaza in October 1948, was illegal because it was not recognized by Britain, that Palestine did not have any lawful sovereignty within the former Palestine mandate until Jordan formally ceded the West Bank to her, and that the 1949 armistice line is the legal international boundary between Israel and Palestine.

    Mike Anderson
    Toronto, Canada

  • Friday July 26, 2002 at 10:49 am
    The difference between the Pacific Islands and Palestine mandates centers on the circumstance of their termination. Great Britain freely declared that it was legally abandoning its mandate and then followed this declaration by the physical abandonment of the mandate territory. On the other hand, Japan physically abandoned its mandate in the face of Allied (mostly US) military force in 1945 and did not abandon its mandate legally. The Pacific Islands became subjects of US military rule in 1945 or so. The UN simply formalized a pre-existing arrangement. However, technically speaking, the UN did not have the authority to award the mandate. Japan needed to legally abandon its mandate so as to remove any doubt that Article 79 of the UN Charter was satisfied and to establish UN authority over the mandate territory.

    Sameh Mobarek
    Chicago, IL, USA

  • Sunday July 28, 2002 at 2:01 am
    First thanks to Leeron Kopelman for asking about the 1949 Armistice Agreement, as a variation of the GAR 181. Second thanks to Professor Anthony D但mato for his clarification. Third thanks to Professor Sameh Mobarek for his asking of the authoritative level of the GAR 181. Lastly thanks to Mike Anderson for his pointing out that 填N General Assembly did not recognise the PLO as 撤alestine until December 1988. As a lay person, I thought that the 1949 Armistice Agreement, with the signature of the then leader of Jordan on the UN Map of Middle East (as well as the signature of the Army leader of the Jewish state of Palestine) per this web site http://www.un.org/Depts/dpa/qpal/maps/arm_1948.jpg is sufficient proof of the Arab world acceptance of Israel痴 borders as pre 1967. Palestine as a statehood concept is a new construct that probably emerged just before the 1967. Thus the War of 1947-1948 ended with the sharing of the remaining Arab state of Palestine, amongst the Jews, Egypt and Jordan. Maybe more than law (international GAR 181 or multi lateral or bilateral agreements after the cease fire) may be the Arab world notion of honour and gentlemen痴 agreement, and that may be why, hardly anyone holding political office in the Arab world (save for the minority not in power, who wish to eradicate Israel) raises this issue of going back to the 1947 borders, especially after Oslo (aborted) began. Even now all talks are based on pre 1967 borders. Professor Anthony D但mato raised the legal construct of the GAR 181 as being a continuity of a Mandate, and thus it was unlike any other GAR. Unless I have grossly misunderstood (which I may have as a lay person) Professor Anthony D但mato, this begs the serious question whether this 叢owerful/empowering Mandate still 叢ersists whereby it can give any GAR thereafter (apart from the 詮ounding GAR 181) on the Question of Palestine, an elevated 僧andate status beyond that of a usual GAR. If all GARs when dealing with the Question of Palestine have this 兎levated and empowering special status, then does the GAR in December 1988 declaring PLO as Palestine, legally vest statehood on Palestine? Secondly, even in 1947, I assume as a lay person, that the UN Security Council had more power than UN General Assembly as is the case in contemporary times and now. So why is the GAR 181 considered by international law to be the effective instrument and not a resolution from the UN Security Council? If it were the UN Security Council resolution that we should be looking at, should it be an independent resolution deciding the same or at least affirming separately GAR 181? Thus Professor Anthony D但mato痴 legal thesis of the supremacy and invincibility of GAR 181 begs more unanswered questions, which I would be pleased to be receive answers/advice.

    Ms. Lu Yi Ling (family name, Lu)
    Malaysia

  • Monday July 29, 2002 at 9:12 pm
    It should also be pointed out that even though Israel does not recognize Palestine as being an independent state, she does recognize her as being an "authority" over the Palestinian territories which she has occupied since 1967. Mr. Arafat and Fatah did win free elections in these territories, and are a legal government over them, and are therefore competent to negotiate a frontier treaty. A boundary agreement, such as the Oslo Accords, signed between Israel and the PLO, would be just as legally binding on both parties regardless of whether one of them was not an independent state, just as an boundary agreement signed between the United States and Puerto Rico would be legally binding even though one of the parties is a territorial dependency of the other. The wording of the Oslo Accords leaves no doubt that every area within the 1949 armistice lines is considered to be Israeli sovereign territory. It would be legally impossible to revert to the 1947 partition boundaries without Israel's consent.

    Mike Anderson
    Toronto, Canada

  • Tuesday July 30, 2002 at 1:16 am
    To this forum, from a lay person痴 point of view, what is the 叢rocedure to get statehood ? More specifically, in the case of the Mandate of Palestine, is there a same or similar procedure for both the Jewish and Arab States of Palestine to be conferred statehood ? When Israel achieved statehood, what was the legal procedure she followed? Did the 鄭rab State of Palestine, assuming it is 撤alestine as we commonly call it now (of pre 1967 borders, West Bank & Gaza Strip with East Jerusalem) try the same route or procedure? If they did not, what did they do instead? If they did, did they succeed or fail? If the 鄭rab State of Palestine did and failed, why did they fail? If statehood in this instance is about 鼠egal procedure, then whose legal procedure or which forum痴 procedure is the crux? If statehood in this instance is not about 鼠egal procedure, what is it about then? What are the criteria for being conferred statehood and by whom?

    I had the benefit of reading the discussion archive in this forum and am trying Mr. Kopelman痴 HTML codes, to see if I can work it.

    To Mr. Mike Anderson痴 statement, Monday July 29, 2002 at 9:12 pm . The wording of the Oslo Accords leaves no doubt that every area within the 1949 armistice lines is considered to be Israeli sovereign territory.

    I wonder what Professor Sameh Mobarek meant by his posting on Thursday July 04, 2002 at 4:47 am on the same issue, at page 80 & 81 of 115 of the archive, line commencing with 槽As for UN SCR 242, it did not purport to determine what the boundaries should be and certainly did not confer any rights or authority to Israel with respect to the occupied territories and ending with Within the very limited sense that Israel as a practical matter would have had to 疎dminister the occupied territories while these negotiations were taking place, the resolution allowed temporary Israeli control over the occupied territories. However, the drafters did not envision that these 創egotiations would take a long time and, therefore, the resolution can not be used as justification of or as giving sanction to long-term Israeli administration of the territories. In addition, the exclusion of the fabled 奏he before the word 双ccupied in the English language version of the resolution was intended to allow the parties some limited flexibility for minor 鼠and adjustments to make the secure and recognized borders among the parties more practical Maybe you could address Professor Sameh Mobarek痴 comment, which you omitted earlier on Thursday July 04, 2002 at 9:58 am

    Lu Yi Ling
    Malaysia

  • Tuesday July 30, 2002 at 2:34 am
    Ms. Lu, while I am flattered that you have conferred on me the academic honor of a professorship, I have to point out that I am a student of law and not a teacher of it. The Israeli-Palestinian dilemma has interested me for some time. I have taken every opportunity I could to read more and educate myself on the subject. However, as far as I know, Professor D但mato is the only one in this forum that has the benefit of academic scholarship and experience behind his opinions.

    Mr. Anderson, I agree with your conclusion that returning to the 1947 partition plan would require Israeli consent. However, my reasons for reaching this conclusion are likely to be different than yours. I believe it was Professor D但mato that first said that any state can consent to the annexation of its own territory to another state. In giving such consent, the annexation becomes an acceptable action under international law. In the Oslo Accord, the Palestinians accepted to limit the scope of peace negotiations to the pre-1967 border and to recognize Israel within borders established by the 1949 armistice. In this respect, they consented to Israeli annexation of territory earmarked for the 羨rab state of UN GAR 181. It was Professor D但mato痴 original contention, which I agreed with, that such position was obviously favorable to the Israelis. If the Palestinians had not consented to this annexation, it is highly unlikely that the UN would have stepped in and enforced UN GAR 181. The UN has proven itself completely ineffective when it comes to issues dealing with Israel. Therefore, I agree with your statement that Israel would have to willingly consent and withdraw to the partition line for the partition plan to become a reality.

    Sameh Mobarek
    Loyola University Law School
    Chicago, Illinois, USA

  • Tuesday July 30, 2002 at 4:09 am
    Mr. Sameh Mobarek, from my limited point of view, I did not confer on you an academic professorship. I did however make a wrong assumption based on what I perceived as your scholarly, humane and fair comments from legal and extra-legal angles, to which I associate with true academic scholarship and hallmark of the Tradition of academic professorship. I also did not 素latter (as I believe that word, carries a negative import, of lack of true substance of the subject who is being flattered) you, but I did honour you, with my respect for your many attempts to try to see both sides and all sides of the views, as best as you humanely can. To me, the distinctive nature of your scholarship, is your humble attempt to explain in way/s that is comprehensible. I also think well of the others, Mike Anderson, Leeron Kopleman ...(:

    To the forum, and Professor Anthony D但mato, I would be pleased to get your answers to the outstanding queries.

    Yi Ling
    Malaysia

  • Tuesday July 30, 2002 at 3:01 pm
    Ms. Lu, I am, in the most positive sense possible, flattered again. All I have to offer is my opinion, and I will continue to endeavor to make it balance.

    Sameh Mobarek
    Loyola University Law School
    Chicago, Illinois, USA

  • Tuesday July 30, 2002 at 4:05 pm
    Mr. Mobarek,

    I understand this is a difficult area, from all angles, legal and non legal; as you have on Tuesday June 25, 2002 at 6:07 pm, stated, 套.As to the issue of the deal offered Palestinians in Camp David in 2000, I think a few facts have to be noted. Without regard to Palestinian concessions with respect to physical borders that are the topic of this forum, the deal gave Palestinians no control over their air space, no control over their waterways, no control over their own borders, no control over the water resources on their land, limitations on the means of self-defense, legitimized many of the Israeli settlements, and deferred discussion on the issues of Jerusalem and refugees. The fact that the deal was the best deal offered by the Israeli government to date does not automatically make it a good deal for Palestinians. .

    Firstly, how is your June 25, 2002 comment connected, if any, to Yisrael Medad, Begin Heritage Center, Jerusalem, Israel on Monday July 01, 2002 at 4:45 am on 套.In this connection, Israel should take little comfort from the promise of Palestinian demilitarization. Indeed, should the government of Palestine choose to invite foreign armies or territories on to its territory (possibly after the original national government had been displaced or overthrown by more militantly anti-Israel forces), it could do so not only without practical difficulties, but also without necessarily violating international law. The threat posed by an independent Palestinian state would also impact directly upon Jerusalemエs nuclear strategy. For the moment, Israel - still buffered from a hot eastern border by the West Bank - can afford to keep its bomb "in the basement." If, however, this territory became the heart of "Palestine," Israel would almost certainly have to move from "deliberate ambiguity" to disclosure, a shift that could substantially improve the Jewish stateエs nuclear deterrence posture but could also enlarge the chances of a nuclear war should this posture fail. Israel does not hold any "occupied" territories. It is critical that the Government of Israel recognize this and that it never accept such an incorrect characterization. To do otherwise would be to degrade its very capacity to endure.

    Secondly, how is your June 25, 2002 comment connected, if any, to Mike Anderson痴 posting on Monday July 29, 2002 at 9:12 pm , 典he wording of the Oslo Accords leaves no doubt that every area within the 1949 armistice lines is considered to be Israeli sovereign territory. It would be legally impossible to revert to the 1947 partition boundaries without Israel's consent. and your own comment, on Tuesday July 30, 2002 at 2:34 am, Mr. Anderson, I agree with your conclusion that returning to the 1947 partition plan would require Israeli consent. However, my reasons for reaching this conclusion are likely to be different than yours. .

    Thirdly, can you explain how a situation can emerge where such an anomaly is created as you concluded that, 典he fact that the deal was the best deal offered by the Israeli government to date does not automatically make it a good deal for Palestinians.

    Fourthly, can you offer us the benefit of your research and insight as to what is the methodology, way forward, to break the deadlock that was inherent within a situation where, 典he fact that the deal was the best deal offered by the Israeli government to date does not automatically make it a good deal for Palestinians.

    I have good esteem of your sincere intent to endeavour to provide a balanced view to suggest the way forward to break the deadlock factors, then inherent in Oslo and may be too, in the new Bush Plan, unless 壮omehow actively and adequately addressed.

    Yi Ling
    Malaysia

  • Wednesday July 31, 2002 at 2:09 pm
    Ms. Lu, with regard to Mr. Medad痴 concern, it is not without merit. Given the history of animosity between Israelis and Palestinians, it is highly likely that a Palestinian state resulting from peace negotiations will be initially hostile to Israel. However, the argument is singularly self-serving. To accept it as justification for denying Palestinians statehood would be tantamount to accepting status quo ante (i.e. Israeli occupation of the West Bank and Gaza). Israel痴 relationship with Syria, Lebanon, Jordan, and Egypt over the past 5 decades has been tremulous at best, but Israel continues to survive and thrive. Israel can and will survive a Palestinian state.

    As for the note about Israel痴 nuclear capability, there is really nothing hidden about it. It is a well-known fact that Israel possesses nuclear weapons and, if history is an indication, that it has the compunction to use them when it deems it necessary. It is worthy to note that successive US administrations have exempt Israel from any pressure to control and/or eliminate its nuclear capability while, at the same time, pressing all other nations to participate in their nuclear anti-proliferation initiatives. Nonetheless, with regard to a new Palestinian state, while I am not an expert on nuclear weapons, I do not believe that they will likely be an option for the IDF because of the proximity of the probable targets to Israeli cities, towns, and villages, and the danger of contaminating one of Israel痴 largest source of water (the aquifer under the West Bank).

    As to your second point, the quote from my note of June 25 that you pointed to discusses issues that are not related to physical borders. It was my assertion then that too much emphasis was put on the territorial 把oncessions included in the Israeli offer without fully analyzing other aspects of the offer.

    As to your third point, the anomaly is easily explained. In order to evaluate the attractiveness of an offer, one has to look at ALL its elements. Just because one element is attractive does not mean that the entire offer is attractive. The territorial proposal put forward by Israel was indeed attractive given the history of the conflict and the past inclinations of successive Israeli administrations. However, like I mentioned in the previous paragraph, other elements of the offer detract significantly from the appeal of the entire offer. It is of little consolation for Palestinians to have a state defined on large portions of the West Bank and Gaza when they have little effective control over their own territory. For example, if I were a Palestinian, I would be weary of the Israeli policy of collective punishment. Since Israel would control both the air space and the borders, as current events illustrate, there is nothing the Palestinians could do if Israel decides to close international access to Palestine thereby choking the economy of this new country. In addition, I would be weary of Israeli policy on the use of water, which is the life-blood of the region. Currently, Israeli policy seems to discriminate against Palestinian use of water favoring settlers and Israeli use.

    As to your fourth point, I can answer your question, but it would require too much debate and discussion that would be far beyond the topic of this forum. I would be happy to do it if Professor D但mato approves of this departure or, in the alternative, we can discuss it on a one-to-one basis via email.

    Sameh Mobarek
    Loyola University Law School
    Chicago, Illinois, USA

  • Wednesday July 31, 2002 at 5:04 pm

    Mr. Mobarek,

    I must say I am truly astounded that you have ideas to break the deadlock!!! (: (: (:

    Please share them soonest! We just need to see Yahoo's on line news on Middle East to see the intrinsic and extrinsic potential value of your extremely significant contribution.

    "Seven Killed in Hebrew U. Bombing , Wed Jul 31, 2:25 PM ET By GREG MYRE, Associated Press Writer

    JERUSALEM (AP) - A bomb hidden in a bag ripped through a busy cafeteria at Hebrew University, killing seven people Wednesday as it shattered the academic peace and left behind pools of blood in one of the few places where young Jews and Arabs still mixed freely.

    More than 70 people were wounded in the bombing, the second to hit Jerusalem in two days."

    Yi Ling
    Malaysia

  • Wednesday July 31, 2002 at 6:08 pm

    Professor D但mato,

    I refer to Mr. Mobarek's request, for your approval, per his statement of Wednesday July 31, 2002 at 2:09 pm, "As to your fourth point, I can answer your question, but it would require too much debate and discussion that would be far beyond the topic of this forum. I would be happy to do it if Professor D但mato approves of this departure"

    Would it be reasonable to assume that if you do not delete this specific post, within the next 48 hours, you have no objections to Mr. Mobarek's kind attempts to show us and others, a or the way/s out of the Israeli-Palestinian Deadlock?

    Thanking you, Professor D'Amato and members of this forum, in advance.

    Yi Ling
    Malaysia

  • Wednesday July 31, 2002 at 11:32 pm
    Ms. Lu, you give me FAR too much credit. Over the course of history, the solution to the complex problem between Israelis and Palestinians eluded many people that are, by far, more intelligent and knowledgeable than I am. I wish I had a magic solution that would stop the bloodshed in the region and in all regions. I wish I could find the Oracle of Delphi to show me the way to convince people that life is gift from God that must be respected. It matters not whether the lives that are lost are Israeli or Palestinian, the anguish and sorrow felt by their loved ones will be the same. My heart weeps for them, and despairs in utter frustration of the course their lives have taken. All I have are some thoughts, most are admittedly not even original, that might spur debate among members of the forum, which could, in time, illuminate a path to a solution through a collective effort. But the first step in the path to resolving any problem is serious debate and dialogue with the intent to finding an equitable solution to all parties. A step that I pray Israelis and Palestinians give serious thought and deliberate action before more innocent lives are lost.

    Sameh Mobarek
    Loyola University Law School
    Chicago, Illinois, USA

  • Thursday August 01, 2002 at 6:02 am

    Mr. Mobarek,

    Countdown has begun for the 48 hours for you to start, ..."As to your fourth point, I can answer your question, but it would require too much debate and discussion that would be far beyond the topic of this forum. I would be happy to do it if Professor D但mato approves of this departure"

    Yi Ling
    Malaysia

  • Saturday August 03, 2002 at 12:38 am
    This is an open debate and as such as elicited some very valuable information and arguments. I've learned a lot from it. I have no interest in controlling its scope, and leave that up to the good will and good judgment of the participants.

    Anthony D\'Amato
    Northwestern Law School
    Illinois, US.

  • Sunday August 04, 2002 at 3:14 pm
    Unfortunately, I have been preoccupied for the past few days, and will continue to be so for the next few days, with personal matters, and have not had much time to consider how to articulate my views on solutions for the Israeli-Palestinian problems. Until then and in the hope of stimulating further discussion on the topic, I offer the following two essays written by Dr. Ron Pundak who was one of the architects of the Oslo Accord and a member of the Israeli negotiating team until 1996. While I may not agree with all the proposals he is putting forward in the second essay, particularly in regards to the status of Jerusalem, I tend to agree with his approach for achieving peace and find his views both balanced and insightful.

    認rom Oslo to Taba: What Went Wrong?: http://www.gush-shalom.org/archives/pundak.doc

    乃he Price of Peace Between Israelis and Palestinians: http://orae.fes.de:8081/fes/docs/IPG3_2001/ARTPUNDAK.HTM

    Sameh Mobarek
    Loyola University Law School
    Chicago, Illinois, USA

  • Tuesday August 06, 2002 at 9:29 am

    Sameh Mobarek,

    If you can, when you are next free, please inform us of your insightful understanding of the key points of the Israeli position versus the key points of the Palestinian position, and where or how or why they cannot meet... thus resulting in no peace treaty & continued violence for more than 50 years.

    Yi Ling
    Malaysia

  • Tuesday August 06, 2002 at 9:39 am

    Professor Anthony D'Amato,

    Thank you very much for Professor's written permission as well as 'open mindedness'

    Would Professor find it suitable to answer my outstanding queries posed, first one, Sunday July 28, 2002 at 2:01 am and second one on Tuesday July 30, 2002 at 1:16 am

    Yi Ling
    Malaysia

  • Thursday August 08, 2002 at 12:48 am
    Yi Ling, you say that as a layperson you asssume that the Security Council has more power than the General Assembly. I think you've answered your own question. Although laypersons may so think, a careful reading of the UN Charter in its entirety shows that the powers of both organs are limited. Indeed, the "range" of GA jurisdiction is much broader than the SC, while the military power of the SC is stronger within the Charter's specified limits. But in either case, as I have tried to show at some length in the earlier posts in this forum, the mandate power resided in the League of Nations, and whan the League was extinguished in 1946, the mandate power devolved to the UN which had been established in 1945. It was contemplated that the Trusteeship Council would take over the mandate supervision, and for the most part that is what happened, but it did not happen with respect to Palestine nor with respect to South West Africa. Except for the fact that these are class A and C mandates respectively, much of the same legal analysis applies to both. As I argue, it is the GA, not the SC, which inherits the mandate supervisory power, as it's power is much broader than that of the security council. The latter properly stepped in when there was a threat to the peace in resolution 242, but it had no power to redraw the lines of the mandate, and in fact, did not attempt or purport to do so.

    Anthony D\'Amato
    Northwestern Law School
    Illinois, USA

  • Thursday August 08, 2002 at 1:59 am

    Professor Anthony D'Amato,

    As the Arab state of Palestine is yet to be recognised by the UN, after more than 40 years; what is the power of the GA, in respect of your legal contention that, "...it is the GA, not the SC, which inherits the mandate supervisory power, as it's power is much broader than that of the security council.".

    Does the immense power of the GA cease immediately after the passing the GA 181?

    Does the GA have no power to recognise or confer statehood on Palestine when it applied , in 1988 (according, to what I understand of Mike Anderson's statement on Thursday July 25, 2002 at 9:50 pm that "It should also be noted that the PLO found it neccesary to declare the independence of Palestine a second time in Algiers on 15 November 1988, shortly after Jordan ceded the west bank to her in July 1988, and that the UN General Assembly did not recognize the PLO as "Palestine" until December 1988."):-

    (1) Apart from this GA 181, in what way(s) has the GA, on the question of Palestine/Israel, shown that the GA has a wider jurisdiction than the SC?

    (2) Why do we get this popular perception that anything that the GA does or resolutions passed , on the question of Palestine/Israel, must be endorsed by the SC for it to take effect? Is it a correct perception?

    (3) Apart from GA 181 , is there any other GA resolutions on the question of Palestine/Israel, that, have the kind of power & legal effect that GA 181 has?

    Yi Ling
    Malaysia

  • Thursday August 08, 2002 at 2:04 am

    Professor Anthony D'Amato,

    Error in numbering:-

    Does the immense power of the GA cease immediately after the passing the GA 181? :-

    (1) Does the GA have no power to recognise or confer statehood on Palestine when it applied , in 1988 (according, to what I understand of Mike Anderson's statement on Thursday July 25, 2002 at 9:50 pm that "It should also be noted that the PLO found it neccesary to declare the independence of Palestine a second time in Algiers on 15 November 1988, shortly after Jordan ceded the west bank to her in July 1988, and that the UN General Assembly did not recognize the PLO as "Palestine" until December 1988.") The remaining paragraphs are numbered (2) to (4) instead of (1) to (3) in the preceding posting. Apologies.

    Yi Ling
    Malaysia

  • Friday August 09, 2002 at 12:13 am
    The document refered to is UN General Assembly Resolution 43/177, passed 15 December 1988. It states that the General Assembly "affirms the need to enable the Palestinian people to exercise their sovereignty over the territory occupied since 1967", thus implying that Palestine has no sovereignty over areas controlled by Israel prior to 1967 i.e. the area between the 1947 partition line and the 1949 armistice demarcation line. The full text of the resolution can be viewed at www.palestine-un.org/res/2-177html

    Mike Anderson
    Toronto, Canada

  • Friday August 09, 2002 at 12:18 am
    Sorry the correct url is www.palestine-un.org/res/2_177.html

    Mike Anderson
    Toronto, Canada

  • Friday August 09, 2002 at 2:22 am

    Professor Anthony D'Amato,

    Further Question (5) to earlier list of (1) to (4), after Mike's posting:

    ...(5) Seeing that both GAR 181 and 43/177 are both majority GAR decisions, is there also any magic or (transferred) mandate power in GAR 43/177,too; that enables the GAR 43/177 to confer statehood on Palestine (pre 1967 border)?

    Yi Ling
    Malaysia

  • Friday August 09, 2002 at 9:52 am
    A side note question regarding UN General Assembly Resolution 43/177.
    "affirms the need to enable the Palestinian people to exercise their sovereignty over the territory occupied since 1967"
    Does that resolve the infamous missing "the" in 242?

    S Mourad
    Canada

  • Tuesday August 13, 2002 at 9:56 pm
    Dear Yi Ling, it's nice to ask so many questions, but this isn't really a seminar. I think the discussion would be better off if you were to state the arguments or assumptions behind your questions, back them up, and then see what others might say about them.

    Anthony D\'Amato
    Northwestern Law School
    Illinois, USA

  • Tuesday August 13, 2002 at 10:30 pm

    Professor Anthony D'Amato,

    Per your new advice, and seeing that both GAR 181 and 43/177 are both majority GAR decisions, is there "also" any similar or parallel notion of transferred mandate power in GAR 43/177,too; that enables the GAR 43/177 to confer statehood on Palestine (pre 1967 border), in the way that GAR 181 (not UN SCR as highlighted by Professor to be the bearer of the mandate power)carved out boundaries of 2 states of Mandate of Palestine in 1947?

    Yi Ling
    Malaysia

  • Friday August 16, 2002 at 11:48 am
    The spoon goes round and round, stirring the soup. The eyes soon tire of following the spoon, but the soup continues to be of interest. Be still, spoon.

    Sad Sam
    Iraq

  • Friday August 16, 2002 at 2:40 pm

    Sad Sam,

    The complexities of man knows no bounds

    We go in round and rounds

    We come to where we began

    Same yet different before we ran

    The world has not changed

    Tis us that has changed

    So all the round and rounds

    Tis' to change our own self

    Yi Ling
    Malaysia

  • Friday August 16, 2002 at 6:31 pm
    Tis easier to change the entire world Than to change ourselves.

    Anthony D\'Amato
    Northwestern Law School
    Illinois, USA

  • Friday August 16, 2002 at 8:14 pm
    Be still, spoon.

    Sad Sam
    Iraq

  • Friday August 16, 2002 at 9:19 pm

    Professor Anthony D'Amato,

    We think tis' easier to change the entire world or part of it than our selves,

    So we try and try and try harder,

    The entire world has not changed, not even a miniscule part of it,

    When something in us changes,

    That day,

    That moment,

    The entire world or part of it has changed!

    Yi Ling
    Malaysia

  • Friday August 16, 2002 at 9:24 pm

    Sad Sam,

    If i were a spoon, i would remember what someone once wrote-

    The pirate, who rapes and kills and throws the young girl overboard in the sea,

    Has not opened his heart of compassion,

    For if his heart were open, he would know that, he and the young girl are one,

    And he would not have done that to the young girl

    Yi Ling
    Malaysia

  • Saturday August 17, 2002 at 5:47 am

    Sad Sam,

    The correct version of the poem is ...

    I am the twelve-year-old girl, refugee on a small boat, who throws herself into the ocean after being raped by a sea pirate. And I am the pirate, my heart not yet capable of seeing and loving.

    The full poem is at http://www.parallax.org/cgi-bin/index.pl?funct=chapter&query=Call+Me+By+My+True+Names&id=**ID**

    Thank you.

    Yi Ling
    Malaysia

  • Saturday August 17, 2002 at 9:12 am
    Be still, spoon. Be still or be gone.

    Sad Sam
    Iraq

  • Saturday August 17, 2002 at 10:29 am

    Sad Sam,

    Pardon me, what's the problem?

    Or what are you trying to say or convey?

    Yi Ling
    Malaysia

  • Saturday August 17, 2002 at 11:14 am

    Declaratory, declaratory; not total interrogatory. Offer insight that promotes dialogue, analysis; less supercilious trumpery. This is a useful forum. Palestine burns. Children are dying.

    The apocalypse threatens. Think, suggest, pause for reflection, wait for several thoughtful responses before waving the baton.

    A tactful call for simple courtesy is not cruelty. What is this talk of a twelve year old girl, afloat alone in the sea, having been raped by a sea pirate? You say, "I am ... etc.?" Come, now.

    What is noteworthy is that you feel rebuked, while there was no mention of you at all. If you are as sensitive as you pretend to be, you will give this some thought, otherwise you will be perceived as being much like Bush and Sharon. It seems you do care.

    Sad Sam
    Iraq

  • Saturday August 17, 2002 at 11:20 am

    Sad Sam,

    Did you use the word "Sad Sam" to connote some sadness, from the root word, 'sad'?

    "We do not understand enough of your suffering, could you tell us? ... There must be a lot of suffering within you. We want to listen to you. ..."

    Borrowed from "Embracing Anger" at http://www.plumvillage.org/TNH/embracing_anger.htm

    and it ends with -

    "No, I am not crying.

    I hold my face in my two hands.

    To keep my loneliness warm

    Two hands, protecting,

    Two hands, nourishing,

    Two hands preventing

    My soul from leaving me in anger."

    If you respond with another, "Be still, spoon. Be still or be gone." i will respectfully and graciously desist to reach out to you anymore, Sad Sam or whatever is your true name.

    Yi Ling
    Malaysia

  • Saturday August 17, 2002 at 11:37 am

    Sad Sam,

    To your statement, "A tactful call for simple courtesy is not cruelty. What is this talk of a twelve year old girl, afloat alone in the sea, having been raped by a sea pirate? You say, "I am ... etc.?" Come, now."

    Please refer to the whole poem for its inherent intuitive meaning & intuitive respond to your statement, "Be still, spoon."

    Please Call Me by My True Names

    Don't say that I will depart tomorrow--even today I am still arriving.

    Look deeply: every second I am arriving to be a bud on a Spring branch, to be a tiny bird, with still-fragile wings, learning to sing in my new nest, to be a caterpillar in the heart of a flower, to be a jewel hiding itself in a stone.

    I still arrive, in order to laugh and to cry, to fear and to hope. The rhythm of my heart is the birth and death of all that is alive.

    I am a mayfly metamorphosing on the surface of the river. And I am the bird that swoops down to swallow the mayfly.

    I am a frog swimming happily in the clear water of a pond. And I am the grass-snake that silently feeds itself on the frog.

    I am the child in Uganda, all skin and bones, my legs as thin as bamboo sticks. And I am the arms merchant, selling deadly weapons to Uganda.

    I am the twelve-year-old girl, refugee on a small boat, who throws herself into the ocean after being raped by a sea pirate. And I am the pirate, my heart not yet capable of seeing and loving.

    I am a member of the politburo, with plenty of power in my hinds. And I am the man who has to pay his "debt of blood" to my people dying slowly in a forced-labor camp.

    My joy is like Spring, so warm it makes flowers bloom all over the Earth. My pain is like a river of tears, so vast it fills the four oceans.

    Please call me by my true names, so I can hear all my cries and laughter at once, so I can see that my joy and pain are one.

    Please call me by my true names, so I can wake up and the door of my heart could be left open, the door of compassion.

    I trust you will understand the meaning of this poem once you have read it. If you do not, i will explain as i know it.

    If you have understood it, you can be the judge of whether my intuitive response to your bare vague statement is on the mark or off the mark. So too can others be the judge of it. -) -) -)

    Yi Ling
    Malaysia

  • Saturday August 17, 2002 at 8:08 pm

    Sad Sam,

    To your statement, on Saturday August 17, 2002 at 11:14 am, "...The apocalypse threatens. Think, suggest, pause for reflection, wait for several thoughtful responses before waving the baton." you might want to read or re-read the discussion archive postings from Friday April 12, 2002 at 9:47 am to Wednesday July 17, 2002 at 6:16 pm and then here , the more recent records, from Wednesday July 17, 2002 at 11:30 pm to yours of Friday August 16, 2002 at 11:48 am

    and then maybe, if you wish then, reconsider or re-evaluate your statement made.

    Yi Ling
    Malaysia

  • Sunday August 18, 2002 at 12:02 am
    In an attempt to bring the discussion back closer to Israeli/Palestinians issues, I would like to briefly address the question that Ms. Lu raised in her post on August 6th. I am sure it is not much of a surprise to any one that the two biggest issues that separate Israelis and Palestinians are the right of return for Palestinian refugees and the status of Jerusalem. Israelis can not possibly allow millions of Palestinians to return to their land within Israel proper. It would destabilize the country and threaten the Jewish character of the state. Palestinians could not hope to sell peace to the general Palestinian masses outside of the Occupied Territories (which number in the millions) without promoting the right of return. With regard to Jerusalem, even the British, at the time of the Balfour Declaration, felt that its status is sufficiently sensitive to a great deal of people, even outside of Mandate Palestinian, that they always tried to carve it out from any promise of statehood or partition plan. Both Israelis and Palestinians hold strong views with regard to control of Jerusalem for largely the same reasons. Even if Palestinians do not feel strongly about Jerusalem, there are a sufficient number of Muslim states that do. States whose financial and political support a fledgling Palestinian state will need.

    I believe that in discussions at Taba and some earlier meetings, the solution to the right of return issue was at hand. It was, and will always be, evident that Israelis can not offer any compromise with respect to physical return of refugees. However, the issue of compensation for those refugees with legitimate claims to property within Israel proper emerged as a plausible alternative.

    With respect to Jerusalem, my point of departure with Dr. Pundak痴 recommendations is that I do not believe that separation of the city will work. Like the British, I believe that the only plausible solution is separation of Jerusalem from both Israel and Palestine following the Vatican model.

    It is inconceivable to me that there can be peace between Israelis and Palestinians until they both regard each other as equal. There was a serious attempt to take this approach by late Prime Minister Rabin and his negotiating team during the Oslo process, an attempt that President Arafat responded to very positively resulting in a historic accord between the two peoples. What followed this event was a regression to the old views that kept both peoples at each other痴 throats for decades.

    Sameh Mobarek
    Loyola University Law School
    Chicago, Illinois, USA

  • Wednesday September 04, 2002 at 10:05 am

    Leighton Professor of Law Anthony D'Amato 典he Palestinian Mandate, of course, remained intact, just as a trust remains intact even though the supervising judge or even the trustee may change.

    If the trust remains intact, how is it that it is excluded from the list of trust territories of UN Trusteeship Council? (see Lists of Non-Self-Governing-Territories since 1945: compiled by UN : - Trust and Non-Self-Governing Territories, 1945-present - Non-Self-Governing Territories listed by General Assembly - Trust Territories that have achieved self-determination - http://www.un.org/Depts/dpi/decolonization/docs.htm

    Yi Ling
    Malaysia

  • Wednesday September 04, 2002 at 11:47 am

    With the over 50-60 pages from 18/8/2002 to 3/9/2002 analysis removed, can you also remove the following-

    Friday August 16, 2002 at 9:24 pm, Saturday August 17, 2002 at 5:47 am, Saturday August 17, 2002 at 9:12 am, Saturday August 17, 2002 at 10:29 am, Saturday August 17, 2002 at 11:14 am, Saturday August 17, 2002 at 11:20 am, Saturday August 17, 2002 at 11:37 am, Saturday August 17, 2002 at 8:08 pm

    otherwise the above postings have no follow through linear analysis

    Yi Ling
    Malaysia

  • Wednesday September 04, 2002 at 11:56 am

    Accidental removal? It is just correcting a spotted error. There can be a positive meaning of 'abstention' , that, where parties have an interest, they abstain from voting.

    Wednesday September 04, 2002 at 9:49 am-Leighton Professor of Law Anthony D'Amato 的nstead, as soon as Resolution 181 was passed (and of course Great Britain voted in its favor), the legal borders between Israel and Palestine were forever fixed. I am sorry but UK (i.e. Great Britain) together with 9 others 殿bstained

    This is the voting pattern for the UN GAR 181.

    (1) In favour: 33 -Australia, Belgium, Bolivia, Brazil, Byelorussian S.S.R., Canada, Costa Rica, Czechoslovakia, Denmark, Dominican Republic, Ecuador, France, Guatemala, Haiti, Iceland, Liberia, Luxemburg, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Philippines, Poland, Sweden, Ukrainian S.S.R., Union of South Africa, U.S.A., U.S.S.R., Uruguay, Venezuela.

    (2) Against: 13-Afghanistan, Cuba, Egypt, Greece, India, Iran, Iraq, Lebanon, Pakistan, Saudi Arabia, Syria, Turkey, Yemen.

    (3) Abstained: 10 -Argentina, Chile, China, Colombia, El Salvador, Ethiopia, Honduras, Mexico, United Kingdom, Yugoslavia.

    Yi Ling, Malaysia

    Yi Ling
    Malaysia

  • Wednesday September 04, 2002 at 12:03 pm

    Consider again before removing this Wednesday September 04, 2002 at 9:55 am - Leighton Professor of Law Anthony D'Amato - 典he State of Israel owes its entire legal existence to the proper exercise by Great Britain of its League of Nations' Mandatory Power over the territory of Palestine. 鏑egal title to the land was not conferrred by Resolution 181 alone but rather by Great Britain's acceptance of the terms of Resolution 181.

    If so, then it would be logical that Great Britain would have recognized Israel immediately on 14 May 1948, when the Mandate expired and Israel declared independence. Does not Great Britain痴 delay in recognizing Israel for almost 2 years (the war years) to 27 April 1950 coincide with the passing of the Statute for the City of Jerusalem of 4 April 1950 and after the several armistice agreements have been signed with the Arab states by mid 1949 (see British Consulate General : Jerusalem a Background. http://www.britishconsulate.org/chancery/jru.htm 套Britain did not recognise Israel until 27 April 1950, simultaneously with its recognition of Jordan, which had just annexed the West Bank. But it did not recognise either Israeli or Jordanian sovereignty over the area of the corpus separatum, although it did recognise that each exercised de facto authority in its respective sector. Israel replied that Israeli-occupied Jerusalem was an integral part of the State)

    Consider that this is rebutting a legal argument by the esteemed International Law Professor on Great Britain's acceptance of the terms of Resolution 181.

    Maybe the esteemed International Law Professor has a legal rebuttal to this ?

    Healthy debate and critical thinking should be encouraged.

    Yi Ling
    Malaysia

  • Wednesday September 04, 2002 at 12:53 pm

    Rebuttal to Anthony D'Amato is the Leighton Professor of Law at Northwestern University School of Law, April 8, 2002 兎ssay on the legal boundaries of the State of Israel.

    (1) Anthony D'Amato says, 套Great Britain could not simply abandon its responsibilities to the people of Palestine. It could only relinquish its trusteeship responsibilities if it left the people of Palestine in a viable self-governing position.

    I will agree that records suggest that Great Britain did think they could not simply abandon its responsibilities to the people of Palestine, and that is why they only recognized Israel and Jordan痴 claim to the original allotted 鄭rab state of Palestine on 27 April 1950 and not immediately on 15 May 1948, when the Mandate ended and Israel declared her independence.

    Records also show that arising from 敵reat Britain痴 responsibilities to the people of Palestine Great Britain chose to wait to 27 April 1950 as by then, 3 important things had happened.

    1st-Israel had declared her independence on 15 May 1948 on the allotted 55% Mandate Palestine for Israel.

    2nd- The 2 years war between Israel and the Arab states had ended and the armistice agreements had been signed by mid 1949 , altering the de facto control from 55% to 78% Mandate Palestine for Israel.

    3rd - Great Britain as a permanent member of the UN Security Council together with all the other permanent members of the UN Security Council, collectively sitting as the UN Trusteeship Council, had on 4 April 1950 approved the detailed Statute for the City of Jerusalem, for the corpus separatum in the UN GAR 181.

    Thus by 27 April 1950, Great Britain perceived that she had discharged her responsibilities to the people of Palestine and could thus relinquish her trusteeship responsibilities as she was leaving the people of Palestine in a viable self-governing position, with Israel on 78% Mandate Palestine, Jordan (with Egypt) on the 22% Mandate Palestine, ceasefire between Israel and the Arab states signed and sealed, and the City of Jerusalem endowed with the necessary Statute for the City of Jerusalem.

    Like all best laid plans, some things go amiss-

    1st- Both Jordan and Israel did not agree to the UN Trusteeship Council痴 approval on the detailed Statute for the City of Jerusalem on 4 April 1950. Jordan ignored the Statute for the City of Jerusalem while Israel went the route of insisting on a General Assembly Resolution, which did not obtain the necessary majority.

    2nd- The 1967 war took place, and Israel occupied the remaining 22% Mandate Palestine.

    3rd- Even the Oslo I (1993-1999) did not result in a negotiated borders by July 2000, Camp David II Summit.

    Post 1967, the detailed Statute for the City of Jerusalem approved on 4 April 1950, seems to have taken a back seat with the world prepared to consider and accept an International Guarantee for the City of Jerusalem.

    Yi Ling
    Malaysia

  • Wednesday September 04, 2002 at 8:06 pm
    Palestine was a "Class A" League of Nations Mandate, scheduled for independence as soon as possible. None of the "Class A" mandates -- Iraq, Syria, Lebanon, Trans-Jordan and Palestine -- ever became United Nations Trust Territories. Britain brought the question of the disposition of the Palestine Mandate before the General Assembly because of a previous commitment to consult the League on any change to the Mandate's staus. Although Britain reccomended the partition of the mandate, she abstained from voting on Resolution 181. Britain recognized Israel's independence on 29 January 1949, at a time when Israel claimed the 1947 partition lines as her boundaries. On 27 April 1950, Britain granted de facto recognition to Israeli and Jordanian annexations up to the 1949 armistice line, except for Jerusalem. The proposed corpus seperatum in Jerusalem was never set up, because both Israel and Jordan refused permission for the Trusteeship Council to administer their sectors of the city.

    Mike Anderson
    Toronto, Canada

  • Wednesday September 04, 2002 at 8:39 pm

    Mike Anderson痴 釘ritain recognized Israel's independence on 29 January 1949, at a time when Israel claimed the 1947 partition lines as her boundaries. On 27 April 1950, Britain granted de facto recognition to Israeli and Jordanian annexations up to the 1949 armistice line, except for Jerusalem.

    Further below I reproduce 1 page from the British Consulate on Jerusalem - http://www.britishconsulate.org/chancery/jru.htm - and immediately below I extract 3 points from there, that contradict some of your view points.

    3 points extracted from Jerusalem : A Background

    (1) 哲o practical progress had been made towards implementing the partition plan when, on 14 May 1948, Britain relinquished the Mandate, in accordance with the provisions of UN General Assembly (UNGA) Resolution 181 (ii), and the State of Israel was declared. It was quickly recognised by both the United States and the Soviet Union.

    (2) 釘ritain did not recognise Israel until 27 April 1950, simultaneously with its recognition of Jordan, which had just annexed the West Bank.

    (3) 釘ut it did not recognise either Israeli or Jordanian sovereignty over the area of the corpus separatum, although it did recognise that each exercised de facto authority in its respective sector.

    Full extract- Jerusalem : A Background

    擢our hundred years of Turkish rule were ended when General Allenby, the British military commander, accepted the surrender of Jerusalem from the Turkish Governor in December 1917. From that date until the operation of the Mandate, in September 1922, under the Covenant of the League of Nations, Palestine, including Jerusalem, remained under British military administration. The San Remo Peace Conference of 1920 assigned to Britain the Mandate for Palestine.

    The Mandate document, approved by the League in July 1922, incorporated the Balfour Declaration of November 1917, and charged the Mandatory to secure the Jewish National Home while safeguarding the civil and religious rights of all inhabitants of Palestine, irrespective of race and religion. The rising rate of Jewish immigration into Palestine, in furtherance of the Balfour Declaration, led to serious disorder in 1920, 1921, 1929 and 1936. Jerusalem was the scene of many of the riots.

    After Britain referred the now unworkable Palestine Mandate to the new United Nations Organisation, the UN produced its General Assembly Resolution 181 of November 1947, which provided for a 撤lan of Partition with Economic Union, and laid down detailed steps for bringing both Arab and Jewish States to independence. The Resolution recognised the special place of Jerusalem in the conflict between Arab and Jew, withholding the city and its surroundings from the partition in a corpus separatum, to be under a special regime sponsored by the UN and administered by its Trusteeship Council.

    No practical progress had been made towards implementing the partition plan when, on 14 May 1948, Britain relinquished the Mandate, in accordance with the provisions of UN General Assembly (UNGA) Resolution 181 (ii), and the State of Israel was declared. It was quickly recognised by both the United States and the Soviet Union. By the end of the Mandate some 400,000 Arabs had already become refugees in surrounding Arab States, and this number was increased by subsequent fighting between Israel and those States. Israel's victories left her in possession of more territory than the partition plan had allotted her, but events were now determined by the de facto progress of military action on the ground.

    When the 1949 round of armistice agreements was concluded at Rhodes, Israel also held new Jerusalem and rejected any idea of the internationalisation of the city. The armistice agreements left Jordan in control of territory not occupied by Israel, and the now familiar outlines of the West Bank thus appeared on the Middle Eastern map. The fighting divided Jerusalem into the western, Israeli-held new city and the eastern, Arab-held old city. However, the legal position is that the divided area is that of the corpus separatum, as defined in the UN Resolutions, and not (as often supposed) the much smaller municipal boundaries contained within it. Both are divided by the 1949 armistice line, which has never had the status of an international frontier.

    Britain did not recognise Israel until 27 April 1950, simultaneously with its recognition of Jordan, which had just annexed the West Bank. But it did not recognise either Israeli or Jordanian sovereignty over the area of the corpus separatum, although it did recognise that each exercised de facto authority in its respective sector. Israel replied that Israeli-occupied Jerusalem was an integral part of the State. On 26 December 1949 Israel declared West Jerusalem its capital. "Jerusalem," stated Israeli Prime Minister David Ben Gurion, "is an inseparable part of Israel, and her eternal capital. No United Nations vote can alter that historic fact."

    Shortly afterwards, Israeli Government ministries began moving to West Jerusalem, so beginning the practical problems, for the British and other governments, of not recognising Israel's claim to Jerusalem as her capital. Those staying in Tel Aviv were the Defence Ministry, which chose to remain there, as it continues to do today, for security reasons, and the Foreign Ministry. The latter eventually moved to Jerusalem in 1953. Britain, with other nations, protested, whereupon the Israelis agreed to set up a liaison office of the ministry in Tel Aviv, at which the Minister and senior officials would make themselves frequently available. This arrangement went increasingly by Israeli default, and the liaison office closed in July 1962.

    Mike, if you have records that substantiate your contradictory view point, maybe you might want to produce them for viewing to rebut the British Consulate view points or statement of their facts.

    Yi Ling
    Malaysia

  • Wednesday September 04, 2002 at 9:08 pm

    Mike Anderson痴 撤alestine was a "Class A" League of Nations Mandate, scheduled for independence as soon as possible. None of the "Class A" mandates -- Iraq, Syria, Lebanon, Trans-Jordan and Palestine -- ever became United Nations Trust Territories. Britain brought the question of the disposition of the Palestine Mandate before the General Assembly because of a previous commitment to consult the League on any change to the Mandate's staus.

    None of the states you mention including Palestine appears in any of the 3 extensive Lists of Non-Self-Governing-Territories since 1945: compiled by UN : - Trust and Non-Self-Governing Territories, 1945-present - Non-Self-Governing Territories listed by General Assembly - Trust Territories that have achieved self-determination - http://www.un.org/Depts/dpi/decolonization/docs.htm

    Here I produce the 填nited States Proposal for Temporary United Nations Trusteeship for Palestine- Statement by President Truman, March 25, 1948 at http://www.yale.edu/lawweb/avalon/decade/decad167.htm

    的t is vital that the American people have a clear understanding of the position of the United States in the United Nations regarding Palestine.

    This country vigorously supported the plan for partition with economic union recommended by the United Nations Special Committee on Palestine and by the General Assembly. We have explored every possibility consistent with the basic principles of the Charter for giving effect to that solution. Unfortunately, it has become clear that the partition plan cannot be carried out at this time by peaceful means. We could not undertake to impose this solution on the people of Palestine by the use of American troops, both on Charter grounds and as a matter of national policy.

    The United Kingdom has announced its firm intention to abandon its mandate in Palestine on May 15. Unless emergency action is taken, there will be no public authority in Palestine on that date capable of preserving law and order. Violence and bloodshed will descend upon the Holy Land. Large-scale fighting among the people of that country will be the inevitable result. Such fighting would infect the entire Middle East and could lead to consequences of the gravest sort involving the peace of this Nation and of the world.

    These dangers are imminent. Responsible governments in the United Nations cannot face this prospect without acting promptly to prevent it. The United States has proposed to the Security Council a temporary United Nations trusteeship for Palestine to provide a government to keep the peace. Such trusteeship was proposed only after we had exhausted every effort to find a way to carry out partition by peaceful means. Trusteeship is not proposed as a substitute for the partition plan but as an effort to fill the vacuum soon to be created by the termination of the mandate on May 15. The trusteeship does not prejudice the character of the final political settlement. It would establish the conditions of order which are essential to a peaceful solution.

    If we are to avert tragedy in Palestine, an immediate truce must be reached between the Arabs and Jews of that country. I am instructing Ambassador Austin to urge upon the Security Council in the strongest terms that representatives of the Arabs and Jews be called at once to the council table to arrange such a truce.

    The United States is prepared to lend every appropriate assistance to the United Nations in preventing bloodshed and in reaching a peaceful settlement. If the United Nations agrees to a temporary trusteeship, we must take our share of the necessary responsibility. Our regard for the United Nations, for the peace of the world, and for -our own self-interest does not permit us to do less.

    With such a truce and such a trusteeship, a peaceful settlement is yet possible; without them, open warfare is just over the horizon. American policy in this emergency period is based squarely upon the recognition of this inescapable fact.

    Notes: (1) Department of State Bulletin, vol. 18, No. 457, April 4, 1948, p. 451. (Source: A Decade of American Foriegn Policy : Basic Documents, 1941-49. Prepared at the request of the Senate Committee on Foreign Relations. By the Staff of the Committe and the Department of State. Washington, DC : Government Printing Office, 1950)

    If I read this together with another document, 填NITED NATIONS- Trusteeship Council- T/592 of 4 April 1950 - Dual Distribution - Sixth Session- Item 19 of the Agenda, STATUTE FOR THE CITY OF JERUSALEM - Approved by the Trusteeship Council at the eighty-first Meeting on 4 April 1950. at http://domino.un.org/UNISPAL.NSF/
    db942872b9eae454852560f6005a76fb/cfb4e24b3
    99e8efd8525644a007972e1!
    OpenDocument

    was there not a trust , otherwise how would the UNITED NATIONS- Trusteeship Council approve the STATUTE FOR THE CITY OF JERUSALEM at the eighty-first Meeting on 4 April 1950?

    The preamble of the Statute is produced with article 1 for ease of reference-

    Preamble

    WHEREAS the General Assembly of the United Nations in its Resolution 181(II) of 29 November 1947, laid down that the City of Jerusalem, as delimited in that Resolution, should be established as a corpus separatum under a Special International Regime and should be administered by the United Nations:

    WHEREAS the General Assembly designated the Trusteeship Council to discharge the responsibilities of the Administering Authority on behalf of the United Nations:

    WHEREAS the special objectives to be pursued by the United Nations in discharging its administrative obligations were set forth in the aforesaid Resolution as follows:

    "(a) To protect and to preserve the unique spiritual and religious interests located in the City of the three great monetheistic faiths throughout the world, Christian, Jewish and Moslem; to this end to ensure that order and peace, and especially religious peace, reign in Jerusalem;

    "(b) To foster cooperation among all the inhabitants of the City in their own interests as well as in order to encourage and support the peaceful development of the mutual relations between the two Palestinian peoples throughout the Holy Land; to promote the security, well-being and any constructive measures of development of the residents, having regard to the special circumstances and customs of the various peoples and communities":

    WHEREAS the General Assembly in the aforesaid Resolution directed the Trusteeship Council to elaborate and approve a detailed Statute for the City and prescribed certain provisions, the substance of which should be contained therein:

    WHEREAS the Trusteeship Council prepared on 21 April 1948 the Draft Statute for the City of Jerusalem (Document T/118/Rev.2):

    WHEREAS the General Assembly of the United Nations, in its Resolution 194(III) of 11 December 1948 resolved that a special treatment separate from that accorded to the rest of Palestine should be accorded to the Jerusalem area and that it should be placed under effective United Nations control:

    WHEREAS the General Assembly of the United Nations, in its Resolution 303 (IV) of 9 December 1949 restated "its intention that Jerusalem should be placed under a permanent international regime, which should envisage appropriate guarantees for the protection of the Holy Places, both within and outside Jerusalem", and requested the Trusteeship Council to "complete the preparation of the Statute of Jerusalem (T/118/Rev.2), omitting the now inapplicable provisions" and, "without prejudice to the fundamental principles of the international regime for Jerusalem set forth in the Resolution of 29 November 1947 introducing therein amendments in the direction of its greater democratization, approve the Statute, and proceed immediately with its implementation":

    THE TRUSTEESHIP COUNCIL, IN PURSUANCE OF the aforesaid Resolutions,APPROVES the present Statute for the City of Jerusalem.

    Article 1- Special International Regime: The present Statute defines the Special International Regime for the City of Jerusalem and constitutes it as a corpus separatum under the administration of the United Nations.

    .continue /- to article (7) -
    http://domino.un.org/UNISPAL.NSF/
    db942872b9eae454852560f6005a76fb/
    cfb4e24b399e8efd8525644a007972e1!OpenDocument

    Yi Ling
    Malaysia

  • Wednesday September 04, 2002 at 9:41 pm
    "confidential British Foreign Office Political Correspondence" states that "On January 29, 1949, Britain recognized the State of Israel..." The location is: http://www.lexisnexis.com/academic/2upa/
    Imes/cbfopcPalestineTransjordan.htm

    Mike Anderson
    Toronto, Canada

  • Wednesday September 04, 2002 at 11:04 pm

    If your record is more accurate then, this error, in the British Consulate web site appears to be reflected too in other sites . Example of 1950- "Britain recognises Israel -

    Example (1) see http://www.bbc.co.uk/radio3/
    speech/paris/timeline1950.shtml

    Example (2) see http://vietnamnews.vnagency.com.vn/
    2002-04/27/Columns/In%20History.htm

    Britain should set her record right either way.

    Earlier on Wednesday September 04, 2002 at 11:56 am, I said, 的 am sorry but UK (i.e. Great Britain) together with 9 others 殿bstained . Since then I note that there is a difference between the United Kingdom and Great Britain.

    What is the difference between the United Kingdom and Great Britain? http://www.britemb.org.il/information/FAQSfacts.html#1

    乃he United Kingdom is made up of the countries of England, Scotland, Wales and northern Ireland. Its full name is the United Kingdom of Great Britain and Northern Ireland. Great Britain, on the other hand, comprises only England, Scotland and Wales. It is the largest island of the British Isles. Northern Ireland and the Irish Republic form the second largest island.

    The Isle of Man and the Channel Islands are not part of the United Kingdom. They are largely self-governing with their own legislative assemblies and systems of law. The British Government is, however, responsible for their defence and international relations.

    We use "Britain" to informally mean the United Kingdom of Great Britain and Northern Ireland.

    Yi Ling
    Malaysia

  • Wednesday September 04, 2002 at 11:50 pm

    Mike Anderson, a side note- on the conflicting dates of recognition. It may have to do with different kinds of recognition as for USA vis a vis Israel.

    From the records of 典he United States and the Recognition of Israel: A Chronology Compiled by Raymond H. Geselbracht from Harry S. Truman and the Founding of Israel (Westport, Connecticut, 1997) by Michael T. Benson at http://www.trumanlibrary.org/israel/palestin.htm and updated to October 25, 2000;

    it appears that there are 2 kinds of state recognition of another- the 租e facto and the de jure

    In the case of USA, the 租e facto was on 14 May 1948 while the 租e jure was on 25 January 1949, see below-

    熱ay 14, 1948: late morning eastern standard time (late afternoon in Palestine): David Ben-Gurion, Israel's first prime minister, reads a "Declaration of Independence," which proclaims the existence of a Jewish state called Israel beginning on May 15, 1948, at 12:00 midnight Palestine time (6:00 p.m., May 14, 1948,eastern standard time).

    May 14, 1948, 6 p.m. eastern standard time (12:00 midnight in Palestine): The British mandate for Palestine expires, and the state of Israel comes into being.

    May 14, 1948, 6:11 p.m. eastern standard time: The United States recognizes Israel on a de facto basis. The White House issues the following statement: "This Government has been informed that a Jewish state has been proclaimed in Palestine, and recognition has been requested by the provisional government thereof. The United States recognizes the provisional government as the de facto authority of the State of Israel." To see a color copy of this document click here. http://www.trumanlibrary.org/photos/israel.jpg

    January 25, 1949: A permanent government takes office in Israel following popular elections.

    January 31, 1949: The United States recognizes Israel on a de jure basis.

    Further see http://www.trumanlibrary.org/israel/timeline.htm - 填N Resolution 181, defined the outline of a settlement in Palestine creating both a Jewish and a Palestinian homeland. The 1947 UN Partition divided the area into three entities: a Jewish state, an Arab state, and an international zone around Jerusalem.

    At midnight on May 14, 1948, the Provisional Government of Israel proclaimed the new State of Israel. On that same date the United States, in the person of President Truman, recognized the provisional Jewish government as de facto authority of the new Jewish state (de jure recognition was extended on January 31). The U.S. delegates to the U.N. and top ranking State Department officials were angered that Truman released his recognition statement to the press without notifying them first. On May 15, 1948, the Arab states issued their response statement and Arab armies invaded Israel and the first Arab-Israeli war began.

    Yi Ling
    Malaysia

  • Thursday September 05, 2002 at 12:06 am
    That is correct. Britain granted de facto recognition to Israel in January, 1949, and de jure recognition in April 1950.

    Mike Anderson
    Toronto, Canada

  • Thursday September 05, 2002 at 1:01 am

    Mike Anderson, as you have determined that is correct, (Thursday September 05, 2002 at 12:06 am-That is correct. Britain granted de facto recognition to Israel in January, 1949, and de jure recognition in April 1950. could you extend us the record of your findings.

    If you have determined that is correct, ( and provided it is correct and substantiated) then the different position between USA and Britain, lends credence to the notion of Britain's unique responsibility to the trusteeship of the Palestine,

    and which may be why, Britain waited till after the signing of the several armistice agreements between Israel and the Arab states (by mid 1949)

    and the approval of the Statute for the City of Jerusalem by 4 April 1950

    before granting de jure ('legal') recognition to Israel on 27 April 1950.

    In contrast, USA waited for the formally elected government of Israel to take office on 25 Jan 1949 before granting de jure recognition of Israel on 31 Jan 1949.

    In comparison, Britain waited for the Israeli formally elected government of Israel to take office on 25 Jan 1949, before granting de facto recognition to Israel on 29 Jan 1949.

    That being the case, the records of the British Consulate & BBC News now appears to be again legally correct, as recognition is legally thought of as de jure (legal) recognition.

    Yi Ling
    Malaysia

  • Thursday September 05, 2002 at 2:28 am

    This topic on the Legal Boundaries of Israel deals with 3 and not 2 entities

    1st Israel

    2nd Palestine

    3rd International City of Jerusalem

    per UN GAR 181.

    The prior comments to mid August 2002 dealt more with the borders between the 2 out of 3 entities. That is it dealt with the borders between Israel and Palestine.

    This final posting attempts to end with the issue of the legal borders on the Corpus Separatum of the City of Jerusalem per UN GAR 181 of 1947 , UN GAR 303 (IV) of 1949 and Statute for the City of Jerusalem 4 April 1950 by an update of the status of the Statute for the City of Jerusalem 4 April 1950.

    Immediately after the 2 years War between Israel and the Arab states, the Christian communities were still hopeful for the Corpus Separatum of the City of Jerusalem per UN GAR 181 of 1947, UN GAR 303 (IV) of 1949 and Statute for the City of Jerusalem 4 April 1950, as was all the permanent members of the UN Security Council sitting as the UN Trusteeship Council on 4 April 1950.

    As Mike Anderson has also pointed out on Wednesday September 04, 2002 at 8:06 pm, 套The proposed corpus seperatum in Jerusalem was never set up, because both Israel and Jordan refused permission for the Trusteeship Council to administer their sectors of the city.

    and by 1994, an official record of the heads of the Christian Communities in Jerusalem, shows concretely an acceptance of the worldly realities- the Christian communities have collectively abandoned the 鼎orpus Separatum aspect of the City of Jerusalem per UN GAR 181, 303 (IV) and Statute for the City of Jerusalem 4 April 1950. Though the Heads of Christian communities in Jerusalem refer to a 都pecial judicial and political stature for Jerusalem it is not necessarily the same as the 都pecial judicial and political stature for Jerusalem per the Statute for the City of Jerusalem.

    Reproduced below the key item of the said 溺EMORANDUM OF THEIR BEATITUDES THE PATRIARCHS AND OF THE HEADS OF THE CHRISTIAN COMMUNITIES IN JERUSALEM ON THE SIGNIFICANCE OF JERUSALEM FOR CHRISTIANS, November 14, 1994. The full Memorandum can be read at http://www.al-bushra.org/hedchrch/memorandum.htm

    Para 14 MEMORANDUM OF THEIR BEATITUDES THE PATRIARCHS AND OF THE HEADS OF THE CHRISTIAN COMMUNITIES IN JERUSALEM - Special Stature for Jerusalem- All this presupposes a special judicial and political stature for Jerusalem which reflects the universal importance and significance of the city.

    (1) In order to satisfy the national aspirations of all its inhabitants, and in order that Jews, Christians and Muslims can be "at home" in Jerusalem and at peace with one another, representatives from the three monotheistic religions, in addition to local political powers, ought to be associated in the elaboration and application of such a special statute.

    (2) Because of the universal significance of Jerusalem, the international community ought to be engaged in the stability and permanence of this statute. Jerusalem is too precious to be dependent solely on municipal or national political authorities, whoever they may be. Experience shows that an international guarantee is necessary.

    Experience shows that such local authorities, for political reasons or the claims of security, sometimes are required to violate the rights of free access to the Holy Places. Therefore it is necessary to accord Jerusalem a special statue which will allow Jerusalem not to be victimised by laws imposed as a result of hostilities or wars but to be an open city which transcends local, regional or world political troubles. This statute, established in common by local political and religious authorities, should also be guaranteed by the international community (end of Para 14)

    From this para (14) of the 溺EMORANDUM OF THEIR BEATITUDES THE PATRIARCHS AND OF THE HEADS OF THE CHRISTIAN COMMUNITIES IN JERUSALEM signed by Greek Orthodon Patriarch, Latin Patriarch, Armenian Patriarch, Custos of the Holy Land, Coptic Archbishop, Syriac Archbishop, Ethiopian Archbishop, Anglican Bishop, Greek-Cath. Patriarc. Vicar, Lutheran Bishop, Maronite Patriarchal Vicar, Cath. Syriac Patriarc.Vicar, in Jerusalem, Nov. 14, 1994, it can be seen that, the Christian communities call for another special statute to international guarantee (guaranteed by the international community) Jerusalem.

    This 套.proposed statute, established in common by local political and religious authorities, should also be guaranteed by the international community is not the same as the approved Statute for the City of Jerusalem of 4 April 1950. I have not sighted a draft of this 都pecial statute on international guarantee, though it is oft referred to, as it was again referred to in the Basic Agreement between the Holy See and PLO on 15 Feb 2000. If anyone has sighted a copy of the draft of this 都pecial statute on international guarantee, please contact me at lu5798@hotmail.com.

    BASIC AGREEMENT BETWEEN THE HOLY SEE AND THE PALESTINE LIBERATION ORGANIZATION , signed February 15, 2000

    捻reamble ..Calling, therefore, for a special statute for Jerusalem, internationally guaranteed, which should safeguard the following:

    a. Freedom of religion and conscience for all.

    b. The equality before the law of the three monotheistic religions and their institutions and followers in the City.

    c. The proper identity and sacred character of the City and its universally significant, religious and cultural heritage.

    d. The Holy Places, the freedom of access to them and of worship in them.

    e. The Regime of "Status Quo" in those Holy Places where it applies;

    Finally for those who think that the 鼎ity of Jerusalem and Jerusalem mean the same thing, please note that the former has a statutory meaning, which is more than Jerusalem. It is said to be

    典he City of Jerusalem shall include the present municipality of Jerusalem plus the surrounding villages and towns, the most eastern of which shall be Abu Dis; the most southern Bethlehem; the most western, Ein Karim (including also the built-up area of Motsa); and the most northern, Shu'fat,

    With the passage of time from 1947 UN GAR 181 and 4 April 1950 on this statutory definition of the City of Jerusalem, it is now unclear whether the HEADS OF THE CHRISTIAN COMMUNITIES IN JERUSALEM represented by Greek Orthodon Patriarch, Latin Patriarch, Armenian Patriarch, Custos of the Holy Land, Coptic Archbishop, Syriac Archbishop, Ethiopian Archbishop, Anglican Bishop, Greek-Cath. Patriarc. Vicar, Lutheran Bishop, Maronite Patriarchal Vicar, Cath. Syriac Patriarc.Vicar, in Jerusalem, Nov. 14, 1994, have the same definition of the City.

    Yi Ling
    Malaysia

  • Thursday September 05, 2002 at 7:37 am
    General Assembly Resolution 43/177 of December 1988 does not even mention the special international regime over Jerusalem, and calls for Palestinian sovereignty over "THE territories occupied since 1967 (emphasis added)", which presumably includes East Jerusalem. The attempt by the General Assembly to set up a special international regime in Jerusalem who have to be considered terminated by 1988, and was probably abandoned many years before this. UN Resolution 181 placed Jerusalem under the Trusteeship Council, whose operations were suspended in 1994 because there were no more trusteeships to administer.

    Mike Anderson
    Toronto, Canada

  • Thursday September 05, 2002 at 8:35 am

    It takes time to digest the full import and impact of Leighton Professor of Law Anthony D'Amato痴 persistent and consistent key and novel argument and thesis on Monday May 06, 2002 at 3:33 pm: 擢irst, legal title assuredly did not pass to the State of Israel in 1948. Two states were contemplated in Resolution 181--a Jewish state and an Arab state. You can't just wipe out the Arab state. Second, the "termination of British rule" is not determinative of the existence of the Mandate for the same reason that a particular trustee is not essential to the continued operation of a trust. Third, the international boundaries do indeed exist, precisely as they were spelled out in Resolution 181--or to put it perhaps more accurately, either internatinoal boundaries exist or the Mandate itself is still in existence. But in either case, the only legal borders between Israel and Palestine are those contained in Resolution 181, and nothing subsequent to 1947 has changed the legal situation (the military situation, of course, is entirely different).

    Yi Ling 壮 reply to Leighton Professor of Law Anthony D'Amato痴 post of Monday May 06, 2002 at 3:33 pm :-

    (1) In ordinary private trust, once a trust is declared, the only way the trust can be terminated is through the discharge of the trust by transferring the trust property to the beneficiary. In commercial practice, that means signing the transfer ( of title) documents and paying the stamp duty for the transfer to the beneficiary from the trustee. There is no other way to terminate the trust.

    Following Leighton Professor of Law Anthony D'Amato痴 point, 套for the same reason that a particular trustee is not essential to the continued operation of a trust.... , it is the law, that if even if the trustee dies, the trust remains. The trust property has to be transferred to the beneficiary for the trust to terminate.

    (2) This begs the question whether the Mandate is a trust, where trust laws operate, especially when Mike Anderson informs us, on Wednesday September 04, 2002 at 8:06 pm that 套.Palestine was a "Class A" League of Nations Mandate, scheduled for independence as soon as possible. None of the "Class A" mandates -- Iraq, Syria, Lebanon, Trans-Jordan and Palestine -- ever became United Nations Trust Territories.

    (3) Records of states and UN seem to give contradictory signals on the trust issue of the Mandate :-

    (a) for 奏rust Mandate as a trust and governed by trust laws as advised by Leighton Professor of Law Anthony D'Amato

    (b) not 鍍rust - USA attempted to have Palestine declared a temporary trust, for if it were a trust, there would be no necessity to have it declared a temporary trust ; UN痴 three (3) extensive Lists of Non-Self-Governing-Territories since 1945: - Trust and Non-Self-Governing Territories, 1945-present - Non-Self-Governing Territories listed by General Assembly - Trust Territories that have achieved self-determination did not include Palestine as a trust territory

    If the Mandate is a trust, then why is this trust not treated like other trust territories? Does it mean that Mike Anderson痴 post of Wednesday September 04, 2002 at 8:06 pm- 撤alestine was a "Class A" League of Nations Mandate, scheduled for independence as soon as possible. None of the "Class A" mandates -- Iraq, Syria, Lebanon, Trans-Jordan and Palestine -- ever became United Nations Trust Territories. mean that

    (a) "Class A" League of Nations Mandate, scheduled for independence as soon as possible, are held under trust, even if they are not listed as United Nations Trust Territories

    (b) "Class A" League of Nations Mandate, scheduled for independence as soon as possible, are not held under trust, and therefore they are not listed as United Nations Trust Territories

    Leighton Professor of Law Anthony D'Amato has led us to think that the Mandate is a trust. The question is, Is it a trust ?

    Only if it is a trust, is it irrelevant that Palestine is not included under any of the UN痴 three (3) extensive Lists of Non-Self-Governing-Territories since 1945: - Trust and Non-Self-Governing Territories, 1945-present - Non-Self-Governing Territories listed by General Assembly - Trust Territories that have achieved self-determination.

    If it is a trust, it is irrelevant that USA attempts to create a temporary trusteeship for Palestine may not have succeeded.

    If it is a trust, it is also legally un-necessary for USA to attempt to create a temporary trusteeship for Palestine as there is already a trust, which has not been fully discharged as the trust property has not been transferred to the other 2 entities, Arab state of Palestine and UN administration of the International City for Jerusalem .

    Going back to the issue of the trust and transfer of title document, I refer to Mike Anderson痴 post of Thursday May 30, 2002 at 1:36 am- 展hile it is entirely possible that UN Resolution 181 was a "trust instrument", which legally created the boundaries demarcated in its text upon the expiration of the Mandate,. which seems to confuse the identity of the documents

    (a) Is the Mandate the trust document as I understand Professor of Law Anthony D'Amato, but

    (b) UN GAR 181 is the equivalent of the transfer of title document to discharge the trust ?

    If we follow Leighton Professor of Law Anthony D'Amato痴 thesis then the 填N Resolution 181 is NOT the "trust instrument but the Mandate is the 奏rust instrument. Then the 填N Resolution 181 is akin to the transfer of title document. Allow me to digress to commercial practice, and observe that, if we have a 典rust Deed dated 1.1.1922 and the trust property is a piece of land. If it is the Torrens System of Land tenure, then the 都tatutory Transfer (of title) document if signed on 9.1.1947 in the instant case, will be the document to discharge the trust . By this analogy, the Mandate of 1922 is equivalent to the said 典rust Deed dated 1.1.1922 . By this analogy, the 都tatutory Transfer (of title) document of 9.1.1947 is equivalent to the UN GAR 181 of 1947 .

    I appear to be splitting hairs (as always!), but if we are to appreciate the full import and impact of Leighton Professor of Law Anthony D'Amato痴 persistent and consistent key and novel argument, then , it means that the legal borders have been given (ie already given ) legal effect to by the UN GAR 181. Thus he says 的n my opinion, this Resolution constitutes the first, last, and only legally authorized demarkation of the Israeli-Palestine borders.

    However Leighton Professor of Law Anthony D'Amato has thrown some spanners in the work, when he takes it or tries to take us all, one step further and says in the same vein, that, 的t was legally authoritative not because it took the form of a UN Resolution, but solely because the UN Resolution itself served as a ratification of the British proposal to divide the Mandate and leave its governance to the people. In other words, the alpha and omega of the legal power resided in Great Britain as the trustee and not in the United Nations.

    If we take the analogy of the 典rust Deed dated 1.1.1922 seriously as we do in commercial practice, then the important party is the trustee who signs the transfer of title document. I guess, in international law, and speaking as a lay person, the trustee need not actually sign the transfer document. Here it is left to the UN GA via UN GAR of 1947. But it underscores the point that, the trustee痴 recommendation, approval, consent is paramount. As Leighton Professor of Law Anthony D'Amato says , .. the alpha and omega of the legal power resided in Great Britain as the trustee and not in the United Nations. and he also says that 填N Resolution itself served as a ratification of the British proposal to divide the Mandate and leave its governance to the people..

    It appears international law as argued by Leighton Professor of Law Anthony D'Amato goes one way, that 填N Resolution itself served as a ratification of the British proposal to divide the Mandate and leave its governance to the people..

    but UN thinks another way, and presumably the UN GA thought that they (and not Britain were essential to approve or otherwise the UN GAR 181) .

    The acid test of Leighton Professor of Law Anthony D'Amato痴 thesis of international law of trust under the Mandate with Britain as the trustee, whose consent is paramount and all others consent (ie UN consent) is valid to the extent that UN consent is a ratification of the Britain recommendation- is to see which of the several plans for partition, in vogue then was recommended by Britain.

    The million dollar question is , is the British recommendation of partition of Palestine, the same one, as that actually approved by UN GA via UN GAR 181?

    To S Sam, and his post of Friday August 16, 2002 at 11:48 am- 典he spoon goes round and round, stirring the soup. The eyes soon tire of following the spoon, but the soup continues to be of interest. Be still, spoon. I owe the 爽nlocking of my pen-my mouth piece. Thank you, too, and salute S Sam , for the Garden of Eden, possibly in Iraq.

    Yi Ling
    Malaysia

  • Thursday September 05, 2002 at 9:28 am

    (1) The ACHILLES HEEL or WINNING STROKE of Leighton Professor of Law Anthony D'Amato痴 persistent and consistent key and novel argument and thesis on 的t was legally authoritative not because it took the form of a UN Resolution, but solely because the UN Resolution itself served as a ratification of the British proposal to divide the Mandate and leave its governance to the people. In other words, the alpha and omega of the legal power resided in Great Britain as the trustee and not in the United Nations.

    (2) First it is clear that more than one plan appears to have come from Britain. It begs the question, why were they not accepted , or rather why the first plan (think so) Royal Ciommission (Peel) Plan for the partition of Palestine, 1937 was not proceeded with ? http://www.passia.org/palestine_facts/maps/
    royal_ciommission_plan_for_the_partition_of_palestine_1937.htm

    Partition of Palestine http://www.guardiancentury.co.uk/1930-1939/Story/0,6051,127111,00.html

    Government approves of the Commission's plan - Thursday July 8, 1937- 撤artition of Palestine between Arabs and Jews and the termination of the mandate are recommended by the Royal Commission, whose unanimous report is published to-day.(Thursday July 8, 1937!)

    The British Government, in a statement of policy, also issued to-day, accepts the proposal. Partition on the general lines recommended "represents," it believes, "the best and most hopeful solution of the deadlock."

    After a transitional period it is proposed to set up two sovereign independent States - an Arab State composed to Trans-Jordan and that part of Palestine allotted to the Arabs, and a Jewish State consisting of the part of Palestine allotted to the Jews.

    Jerusalem and Bethlehem, with a corridor to the sea, would form part of a small enclave to be reserved under a new British mandate. Jaffa would form an outlying part of the new Arab State.

    (3) Question for Leighton Professor of Law Anthony D'Amato: If recommendation of Britain is all that is necessary for the discharge of the trust, why this statement, 典he Royal Commission's report will now be taken to Geneva. A special meeting of the Permanent Mandates Commission has been summoned there for July 30. Mr. Ormsby-Gore, Secretary for the Colonies, and Mr. J. M. Martin, the secretary of the Royal Commission, will attend. The Geneva Commission will then report to the Council of the League. American consent is necessary to any modification of the mandate.

    (4) Next comes one of the other plans, Woodhead Partition Plan 1938 , Recommended Boundaries C http://www.passia.org/palestine_facts/MAPS/Woodhead-Partition.htm

    (5)The same question, why were they not accepted if the paramount consideration is that of the trustee Britain alone?

    (6) Now we come to the only plan that Leighton Professor of Law Anthony D'Amato refers to, which is that approved by UN GA via UN GAR 181 .

    UN Partition Plan 1947 http://www.passia.org/palestine_facts/MAPS/
    1947-un-partition-plan-reso.html

    together with plan for Jerusalem as corpus separatum http://www.passia.org/palestine_facts/
    MAPS/images/jer_maps/UNPartition.html

    (7) Does it mean that Leighton Professor of Law Anthony D'Amato痴 argument needs a further adjustment, that, the British government trustee has the right to consult any others, and when Britain is satisfied this is 奏he plan that Britain痴 real recommendation is said to be obtained. Thus we should 鼠egally ignore, 典hursday July 8, 1937痴 press statement that 典he British Government, in a statement of policy, also issued to-day, accepts the proposal. Partition on the general lines recommended "represents," it believes, "the best and most hopeful solution of the deadlock."

    and reject this as a 喪eal recommendation of Britain for the purpose of international trust law.

    Yi Ling
    Malaysia

  • Thursday September 05, 2002 at 9:37 am

    Mike Anderson,

    The jury is out.

    If Leighton Professor of Law Anthony D'Amato痴 legal thesis on UN GAR 181 is correct in law, then the borders are decided at law already by UN GAR 181 in 1947 as it is the partition plan that was 然EALLY recommended by Britain and thus as Professor of Law Anthony D'Amato痴 says, the 填N Resolution itself served as a ratification of the British proposal to divide the Mandate and leave its governance to the people..

    then all other events from UN GAR 181 , that is any and all UN GAR xxx and UN SCR zzz are all 喪ed herrings as they call it in law schools.

    We get no marks for falling for the red herrings! :-)

    Yi Ling
    Malaysia

  • Thursday September 05, 2002 at 11:18 am

    While waiting for the Jury, let痴 look at your issues, Mike. True, General Assembly Resolution 43/177 of December 1988 did not even mention the special international regime over Jerusalem, and calls for Palestinian sovereignty over "THE territories occupied since 1967 (emphasis added).

    Why? This is after 1967, where UN Security Council was then more interested in affirming to Israel that the acquisition of territory by force is inadmissible, in accordance with the United Nations Charter, the principles of international law, and relevant Security Council resolutions.

    This was after Hamas Covenant 1988 was passed on 18 August 1988, known as 典he Covenant of the Islamic Resistance Movement **Caution: FAINT or WEAK HEARTED should NOT read the full text of the Hamas Covenant 1988 http://www.yale.edu/lawweb/avalon/mideast/hamas.htm

    So on the one hand, UN wanted Israel to leave the occupied territories, UN was also aware of the dangers of the formenting Islamic resistance. See the Hamas Covenant of 18 August 1998, just FOUR (4) MONTHS BEFORE your mentioned UN GAR 43/77 of 15 December 1988 AND TWO MONTHS BEFORE 典he proclamation of the State of Palestine by the Palestine National Council on 15 November 1988

    Maybe UN GAR 43/7痴 2. Affirms the need to enable the Palestinian people to exercise their sovereignty over their territory occupied since 1967; is to assuage the Palestinians.

    Maybe UN GAR 43/7痴 1. Acknowledges the proclamation of the State of Palestine by the Palestine National Council on 15 November 1988; is also to recognize PLO over Hamas.

    Looks like last quarter of 1988 was a period of intense activity for Palestine 2 factions in Palestine vying for power 鳳LO and Hamas -

    (1) 18 August 1988 - Hamas Covenant

    (2) 15 November 1988 PLO proclaims State of Palestine

    (3) 15 December 1988 UN GAR 43/77

    Yi Ling
    Malaysia

  • Thursday September 05, 2002 at 9:45 pm
    In the Eastern Greenland Case (1931), the arbitrator ruled that a verbal declaration by a responsible minister of the government was the legal equivalent of a signature on a treaty. In 1949-50 responsible ministers of the Jordanian and Israeli governments announced the annexation of all the territories up to the 1949 Armistice Demarcation Line, and the responsible minister of the mandatory power, Britain, granted de facto recognition to these annexations. These acts were, therefore, the same as if Britain, Israel and Jordan had signed a treaty in which Britain partitioned the mandate and ceded it to Israel and Jordan. By passing UNSCR 242 and UNGAR 43/177, both the Security Council and the General Assembly recognized the legality of these acts of annexation. This proves that the 1949 Armistice Demarcation Line is the legal international boundary of Israel.

    Mike Anderson
    T

  • Thursday September 05, 2002 at 11:44 pm

    鏑egal international boundary of Israel is a hard paper to take for any off campus international law course!

    Leighton Professor of Law Anthony D'Amato has a novel legal thesis that, in essence Britain is the trustee and has the sole power to partition the Mandate in a responsible manner, and it is partitioned per UN GAR 1947 on Britain痴 recommendation and ratified by UN GA.

    You, Mr. Mike Anderson, now have another novel legal thesis that, in essence Britain is the trustee and has the sole power to partition the Mandate in a responsible manner, and it is partitioned per 1949 Armistice Demarcation Line, and the responsible minister of the mandatory power, Britain, granted de facto recognition to these annexations

    Mike, we may need to go check the date of 釘ritain痴 granting de facto recognition to these annexations was it before or after the precise date of the 1949 Armistice Demarcation Line? Is this issue relevant? Let痴 go back and check Leighton Professor of Law Anthony D'Amato痴 development of his novel thesis.

    Ah! Mike, Leighton Professor of Law Anthony D'Amato says at para 5. of 8 April 2002 徹n November 29, 1947, the General Assembly adopted the key "partition" resolution, Resolution 181, ratifying the British proposals. So in Anthony D'Amato痴 thesis, the proposal comes first from Britain (the trustee) and then is ratified by UN GA per UN GAR 181.

    But then, as we have seen, Britain went a few rounds with her partition plans from 1937 to 1947 before 1 particular partition plan of 1947 took shape and became the 喪eal plan that Britain approved or recommended. Might we then say that, likewise, your point of 釘ritain痴 granting de facto recognition to these annexations is kind of equivalent to Anthony D'Amato痴 thesis of Britain recommended the Partition Plan as ratified by UN per UN GAR 181.

    In the same vein, then, your thesis might be , 釘y passing UNSCR 242 and UNGAR 43/177, both the Security Council and the General Assembly ratified Britain痴 recommendation of the de facto annexation. This proves that the 1949 Armistice Demarcation Line is the de facto international boundary of Israel.

    And not By passing UNSCR 242 and UNGAR 43/177, both the Security Council and the General Assembly recognized the legality of these acts of annexation. This proves that the 1949 Armistice Demarcation Line is the legal international boundary of Israel.

    for the legal reason that Britain has only conferred de facto recognition of the borders of 1949 between Israel and Jordan

    and de facto recognition is not de jure recognition

    At this stage, it looks like we both may scrap through this very difficult term paper , with only 50.01% for Leighton Professor of Law Anthony D'Amato痴 internet international law course on 鏑egal international boundary of Israel unless you can do better than this . : -)

    Yi Ling
    Malaysia

  • Friday September 06, 2002 at 12:20 am

    Mike,

    Less it be misunderstood, the foundation of my comment of Thursday September 05, 2002 at 11:44 pm , is -

    Leighton Professor of Law Anthony D'Amato痴 comments of Monday May 06, 2002 at 3:33 pm, "Third, the international boundaries do indeed exist, precisely as they were spelled out in Resolution 181--or to put it perhaps more accurately, either internatinoal boundaries exist or the Mandate itself is still in existence"

    With his "...or to put it perhaps more accurately, either internatinoal boundaries exist or the Mandate itself is still in existence"

    we have room for exploring the prospect of " ...the Mandate itself is still in existence"

    and us your new novel thesis to penetrate Leighton Professor of Law Anthony D'Amato痴 novel thesis.

    I suspect there is a point of convergence between your current raw new novel thesis and Leighton Professor of Law Anthony D'Amato痴 " Third, the international boundaries do indeed exist, precisely as they were spelled out in Resolution 181--or to put it perhaps more accurately, either internatinoal boundaries exist or the Mandate itself is still in existence"

    Yi Ling
    Malaysia

  • Saturday September 07, 2002 at 2:14 am

    Legal boundaries of Israel also needs to address the corpus separatum, as seen from these British Consulate notes-

    Source: http://www.britishconsulate.org/chancery/position.htm - 典his Demarcation line was not an international boundary, but was agreed "without prejudice to future territorial settlements or boundary lines". In 1950 the UK extended simultaneous de facto recognition to both Jordan and Israel, but withheld recognition of sovereignty of either state over the corpus separatum as stipulated in UN General Assembly resolution 303 (IV) of 1949. Such recognition was not possible before a final determination of the status of the area.

    Source: http://www.britishconsulate.org/chancery/jru.htm - 釘ritain did not recognise Israel until 27 April 1950, simultaneously with its recognition of Jordan, which had just annexed the West Bank. But it did not recognise either Israeli or Jordanian sovereignty over the area of the corpus separatum, although it did recognise that each exercised de facto authority in its respective sector. Israel replied that Israeli-occupied Jerusalem was an integral part of the State.

    Yi Ling
    Malaysia

  • Saturday September 07, 2002 at 8:21 am

    I am just going through Anthony D Amato痴 statement and other connected statements : 1. Palestine was a Mandate under Article 22 of the League of Nations Covenant; in our parlance, a trust. The beneficiaries were the people residing in Palestine. The Mandatory Power (trustee) was Great Britain. to flesh out the 4 important ingredients of the trust as well as their finer details. That way, things which are obvious will show themselves up, where a broad sweep tends to hide them.

    There is no originality in this analysis, just building on Tony D但mato痴 as well as wondering what Tony D Amato would have said if he had held a brief for the Christian Church , and thus taken his thesis to its logical conclusion in the same vein for the City of Jerusalem.

    (a) the trust (or even the trust document as well- The Palestine Mandate, The Council of the League of Nations:July 24, 1922 http://www.mideastweb.org/Mandate.htm) - the Mandate

    (b) the trustee- the Mandatory Power , Britain (not Great Britain)

    (c ) the beneficiaries

    (i) the people residing in Palestine

    (ii) maybe we should also include the Jews from outside Palestine ! see the Mandate痴 preamble 展hereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might 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

    (iii) maybe we should also include the 妬nternational community or at least the international community who are adherents of the 3 monotheistic Abrahamic faiths- Judaism, Christianity, Islam

    and a further fourth element,

    (d) the trust properties- 鍍he territory of Palestine, which formerly belonged to the Turkish Empire, within such boundaries as may be fixed by them It is common knowledge now that the trust property was carved out and partitioned into 3 blocs, 1st for the Jewish state, 2nd for the Arab state and 3rd for the International City of Jerusalem. As Anthony says later, 的t also provided for an independent international mixed status for the city of Palestine. and 套it could relinquish its trusteeship if the territory were divided into two states, a Jewish State and an Arab State.

    (1) For the trust to be fully discharged, in ordinary commercial parlance, all the trust properties must be transferred to all the beneficiaries.

    (i) 殿ll the trust properties means

    Jewish state in Mandate for Palestine

    the Arab state in Mandate for Palestine

    International City of Jerusalem in Mandate for Palestine

    (ii) 殿ll the beneficiaries means-

    Jews in the Jewish state in Mandate for Palestine and overseas Jews especially the Holocaust Jews , and the Arab people residing in the Jewish state in Mandate for Palestine

    Jews in the Arab state in Mandate for Palestine and the Arab people residing in the Arab state in Mandate for Palestine

    Jews and the Arab people residing in the International City of Jerusalem in Mandate for Palestine, and all adherents of the 3 monotheistic Abrahamic faiths- Judaism, Christianity, Islam .

    *** If this point of the beneficiaries also being 殿ll adherents of the 3 monotheistic Abrahamic faiths- Judaism, Christianity, Islam . and not just 典he beneficiaries were the people residing in Palestine. as stated by D但mato then the prior mentioned document of the MEMORANDUM OF THEIR BEATITUDES THE PATRIARCHS AND OF THE HEADS OF THE CHRISTIAN COMMUNITIES IN JERUSALEM ON THE SIGNIFICANCE OF JERUSALEM FOR CHRISTIANS, November 14, 1994. The full Memorandum can be read at http://www.al-bushra.org/hedchrch/memorandum.htm, makes sense . They are representatives of the beneficiaries to the City of Jerusalem!

    Since Anthony D Amato says: 鏑egal title to the land was not conferrred by Resolution 181 alone but rather by Great Britain's acceptance of the terms of Resolution 181. ... Instead, as soon as Resolution 181 was passed ., the legal borders between Israel and Palestine were forever fixed.

    then it also means that, the legal borders of the corpus separatum for the City of Jerusalem were also forever fixed.

    Since Anthony D Amato says : 典hose borders henceforth could only be changed by one of two processes: first, explicit agreement between Israel and the authorized representatives of Palestine,

    then the legal borders of the corpus separatum for the City of Jerusalemcould only be changed by one of two processes: first, explicit agreement between Israel and the authorized representatives of Palestine, on the one hand and representatives of the adherents of the 3 monotheistic Abrahamic faiths- Judaism, Christianity, Islam on the other hand.

    Since Anthony D Amato says : Thus after all the wars, the bloodshed, aggressions and counter-aggressions, acts of terror, reprisals, and attendant UN resolutions, nothing has changed the legal situation as it existed after Resolution 181 in 1947. The legal boundaries of Israel and Palestine remain today exactly as they were delimited in Resolution 181.

    then after all the 溺EMORANDUM OF THEIR BEATITUDES THE PATRIARCHS AND OF THE HEADS OF THE CHRISTIAN COMMUNITIES IN JERUSALEM ON THE SIGNIFICANCE OF JERUSALEM FOR CHRISTIANS, November 14, 1994, the BASIC AGREEMENT BETWEEN THE HOLY SEE AND THE PALESTINE LIBERATION ORGANIZATION , signed February 15, 2000 , the wars, the bloodshed, aggressions and counter-aggressions, acts of terror, reprisals, and attendant UN resolutions, nothing has changed the legal situation as it existed after Resolution 181 in 1947. The legal boundaries of the City of Jerusalem remain today exactly as they were delimited in Resolution 181.

    In ordinary commercial practice, after the transfer has been legally effected and the title of 1 of the 3 properties passed from the trustee to the beneficiary, the trustee's change of mind about the 'area' of the title of the said one property is irrelevant. I suspect this is what Tony D'Amato means by "Thus after all the wars, the bloodshed, aggressions and counter-aggressions, acts of terror, reprisals, and attendant UN resolutions, nothing has changed the legal situation as it existed after Resolution 181 in 1947. The legal boundaries of Israel and Palestine remain today exactly as they were delimited in Resolution 181."

    This then addresses all the issues we raised of Britain's de jure recognition in 1950 of land annexed by Israel in 1949 and de facto recognition in 1950 of the 'de facto occupation of West Jerusalem'

    In other words, according to Tony D' Amato, all these are irrelevant to his analysis that, the borders of Israel are per 1947 and not 1949 or 1950 ! :-)

    Yi Ling
    Malaysia

  • Saturday September 07, 2002 at 8:43 am

    In ordinary commercial practice, Trustee legally effects transfer of Land A (per trust deed) out of a trust pool of Land A, Land B, Land C to Mister A.

    Mister A has title deed to Land A. Mister A is legal and beneficial owner of Land A.

    Before transfer was effected, Mister A is beneficial owner of Land A but not legal owner of Land A.

    After transfer is effected Mister A is legal as well as beneficial owner of Land A.

    Can trustee after transferring Land A says, officially, that trustee recognises Mister A right to Land A + "x"%?

    Whatever trustee says, after the transfer, does it increase the beneficial ownership? Did we not establish that whether before or after the transfer, at all times per the trust deed, Mister A was the beneficial owner of only Land A? The transfer only affected the legal ownership of Land A

    Its our ignorance of the basic concepts of international law, that entices us to the various UN SCR 242 and UN GAR 43/177, and argue without legal basis for the change of the beneficial and legal ownership status and for land increases. We become seduced and are enticed away by the changing politics from nation states, UN GA, UN SC, since UN GAR 181.

    When and if we revert to more familar grounds of day to day trust deeds as we know of, maybe then, Tony D' Amato's gem, starring at us, but missing us, for so many months since April 2002 can be gleaned, "Thus after all the wars, the bloodshed, aggressions and counter-aggressions, acts of terror, reprisals, and attendant UN resolutions, nothing has changed the legal situation as it existed after Resolution 181 in 1947. The legal boundaries of Israel and Palestine remain today exactly as they were delimited in Resolution 181." :-)

    As he says there are 2 situations where the land can change, 典hose borders henceforth could only be changed by one of two processes: first, explicit agreement between Israel and the authorized representatives of Palestine,

    Have the 2 situations been legally shown to apply?

    Yi Ling
    Malaysia

  • Tuesday September 17, 2002 at 10:43 am
    Yi Ling the idea that Christians or Muslims have some claim over the holy sites is a recepie for disaster.
    It is simply the flip side of Zionism.
    Palestinians and Israelis have a claim because, they live there not because of their religions.

    S Mourad
    Canada

  • Tuesday September 17, 2002 at 7:11 pm
    S. Mourad says: "Yi Ling the idea that Christians or Muslims have some claim over the holy sites is a recipie for disaster. It is simply the flip side of Zionism. Palestinians and Israelis have a claim because, they live there not because of their religions." I disagree. I think that Christians, Muslims, and Jews do have certain claims on access to the religious sites of their respective faiths and these sites must be protected and open for visits by their faithful. The same is true for privately owned Arab land in the West Bank and Jerusalem; the owners of these lands should enjoy the legal rights pertaining to owners of private property. But, I think, what has still not been determined by the legal discussion in this forum is who has the right to impose an overarching national sovereignty upon the entire territory, including the religious sites, private property and all of the non-privately owned land in between. (The latter is practically all of the territory at issue.) The issue is sovereignty, not visiting rights and the enjoyment of privileges on isolated bits of land.

    S. Ames
    Arizona, USA

  • Wednesday September 18, 2002 at 9:56 am

    S Mourad,

    The given start up point is GAR 181 of 1947, where there are 3 entities: 1st the Jewish state of Palestine, 2nd the Arab state of Palestine and 3rd the International City of Jerusalem. If the premise of the GAR 181 is acknowledged and accepted, then any claim by Christians or Muslims to the International City of Jerusalem, would be in accordance with GAR 181, which our dear Professor Anthony D但mato has stated affirmatively is the ratification of the British recommendation for partition of the Palestine Mandate.

    However to date, neither the Christians nor Muslims have sent their army to impose the creation of the International City of Jerusalem. Neither has UN.

    In what way then is the International City of Jerusalem a recipe for disaster?

    Or in what way then has the International City of Jerusalem been a recipe for disaster?

    What was the conventional worldly wisdom then in 1947 for GAR 181 for the International City of Jerusalem?

    S Ames,

    Comment on your 釘ut, I think, what has still not been determined by the legal discussion in this forum is who has the right to impose an overarching national sovereignty upon the entire territory, including the religious sites, private property and all of the non-privately owned land in between. (The latter is practically all of the territory at issue.)

    On the contrary, the preceding discussion lead to the conclusion that, sovereignty lies with the 3 entities per GAR 181. That is the area carved out of the Palestine Mandate for the Jewish state of Palestine is the boundary for Israel. The area carved out of the Palestine Mandate for the Arab state of Palestine is the boundary for Palestine. The area carved out of the Palestine Mandate for the International City of Jerusalem is the boundary for the City of Jerusalem, to be administered by the UN for a period of about 10 years in accordance with the approved Statute for the City of Jerusalem. This is the conclusion that Professor Anthony D但mato would have us think- that the sovereignty of Israel is per GAR 181 of 1947, the sovereignty of Palestine is per GAR 181 of 1947. Likewise the sovereignty of the International City of Jerusalem lies not with Israel or Palestine or Jordan but it lies with the UN for the first ten years per GAR 181 and the approved Statute for the City of Jerusalem.

    Yi Ling
    Malaysia

  • Wednesday September 18, 2002 at 10:07 am

    S Ames,

    A more direct answer to your question, "who has the right to impose an overarching national sovereignty upon the entire territory, ...." would be to refer you to the nations who were eligible to vote for GAR 181 in 1947. They as the UN General Assembly had the right to impose an overarching national sovereignty upon the entire territory, and they did , as shown by their voting pattern- Professor D'Amato thinks it should be Britain that has the right to impose the overarching national sovereignty, and according to the Professor Britain recommended this UN GAR 181 to the UN GA. The Professor places less importance on the UN GA in so far as the borders are concerned. The UN GA merely RATIFIED that which Britain had decided.

    This is the voting pattern for the UN GAR 181. (1) In favour: 33 -Australia, Belgium, Bolivia, Brazil, Byelorussian S.S.R., Canada, Costa Rica, Czechoslovakia, Denmark, Dominican Republic, Ecuador, France, Guatemala, Haiti, Iceland, Liberia, Luxemburg, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Philippines, Poland, Sweden, Ukrainian S.S.R., Union of South Africa, U.S.A., U.S.S.R., Uruguay, Venezuela. (2) Against: 13-Afghanistan, Cuba, Egypt, Greece, India, Iran, Iraq, Lebanon, Pakistan, Saudi Arabia, Syria, Turkey, Yemen. (3) Abstained: 10 -Argentina, Chile, China, Colombia, El Salvador, Ethiopia, Honduras, Mexico, United Kingdom, Yugoslavia.

    Yi Ling
    Malaysia

  • Sunday September 22, 2002 at 7:32 pm
    GAR 181 and the British partition proposal was accepted by Israel in 1948 prior to the invasion by the armies of the Arab states. But the partition borders must have been nullified by the attempt by the Arabs to exterminate the Jews and erase the newly procalaimed State of Israel. There was no attempt by other powers to aid Israel to survive in any borders so I have the following rhetorical question: If the Arabs had succeeded in utterly destroying Israel and liquidating its population (then about 660,000)without any survivors, under the aegis of GAR 181, to whom would the UN insist that the territory which was to be the Jewish state be returned? And if the first attempt to exterminate Israel did not succeed are the Arabs free to continue their attempts until they one day will succeed? It cannot be possible that international law (or morality) supports the concept that the Jews could lose all of their territory if the Arab aggression succeeds but if it fails, the original territory boundaries proposed for the Arab state must be restored to allow the Arabs multiple attempts to exterminate Israel. The Arab aggression of 1948 must have nullified forever any resort to legalizing the borders of the British proposal.

    S. Ames
    Arizona, USA

  • Sunday September 22, 2002 at 7:35 pm
    GAR 181 and the British partition proposal was accepted by Israel in 1948 prior to the invasion by the armies of the Arab states. But the partition borders must have been nullified by the attempt by the Arabs to exterminate the Jews and erase the newly procalaimed State of Israel. There was no attempt by other powers to aid Israel to survive in any borders so I have the following rhetorical question: If the Arabs had succeeded in utterly destroying Israel and liquidating its population (then about 660,000)without any survivors, under the aegis of GAR 181, to whom would the UN insist that the territory which was to be the Jewish state be returned? And if the first attempt to exterminate Israel did not succeed are the Arabs free to continue their attempts until they one day will succeed? It cannot be possible that international law (or morality) supports the concept that the Jews could lose all of their territory if the Arab aggression succeeds but if it fails, the original territory boundaries proposed for the Arab state must be restored to allow the Arabs multiple attempts to exterminate Israel. The Arab aggression of 1948 must have nullified forever any resort to legalizing the borders of the British proposal.

    S. Ames
    Arizona, USA

  • Monday September 23, 2002 at 10:28 am

    S. Ames of Arizona, USA,

    The first issue in your question relates to the legal position of right or otherwise to keep territory after winning a war.

    Professor earlier said, "(9.) Overshadowing the arguments in Paragraph 8 above is the undeniable fact that the Kellogg-Briand Peace Pact of 1928, as definitively glossed by the International Tribunal at Nuremberg in 1948, has abolished forever the idea of acquisition of territory by military conquest. No matter who was the aggressor, international borders cannot change by the process of war. Resort to war is itself illegal, and while self-defense is of course legal, the self-defense cannot go so far as to constitute a new war of aggression all its own. And if it does, the land taken may at best be temporarily occupied, but cannot be annexed. Thus after all the wars, the bloodshed, aggressions and counter-aggressions, acts of terror, reprisals, and attendant UN resolutions, nothing has changed the legal situation as it existed after Resolution 181 in 1947. The legal boundaries of Israel and Palestine remain today exactly as they were delimited in Resolution 181."

    Your second issue relates to your hypothetical question, of what if, Israel had lost the war? To whom does the land granted to the Jewish state of Palestine?

    If we follow the legal logic of the Professor, the land would belong to the Jews from outside Palestine, who choose to migrate to the Jewish state of Palestine, as well as the inhabitants (Jews and non Jews) of the Jewish state of Palestine. The same point that the Professor made, "..Kellogg-Briand Peace Pact of 1928, ....... has abolished forever the idea of acquisition of territory by military conquest. No matter who was the aggressor, international borders cannot change by the process of war. ...... the land taken may at best be temporarily occupied, but cannot be annexed. Thus after all the wars, the bloodshed, aggressions and counter-aggressions, acts of terror, reprisals, and attendant UN resolutions, nothing has changed the legal situation as it existed after Resolution 181 in 1947. The legal boundaries of Israel and Palestine remain today exactly as they were delimited in Resolution 181." would apply to your case of the Arab agression and total annihilation of the Jews in the Jewish state of Palestine. Total annihilation seldom occurs though in history !

    The civilising notion of international law, is that, it applies with equal force to all situations, the situation as it is today and likewise in your hypothetical situation; as well as in any other cases in the world in the past decades and for the future.

    Whether international law has the means to enforce the rules is a separate issue.

    Whether states, or international bodies follow the said rules, is too another separate issue. It is less a legal issue and more a political issue.

    Law is not law only if it is obeyed.

    If it is the law, it is the law; whether it is obeyed or not.

    The question is, is the Professor's purported statement of the law, a statement of the law?

    If the Professor's statement of the law on the legal borders of Israel per the UN partition plan of 1947 as decided by Britain prior to her recommendation of the same to the UN GA, is accurate and correct,

    then the law is that, the legal borders and sovereignty of Israel, Palestine and City of Jerusalem is per the borders of the UN Partition Plan of the UN GAR 181 of 1947.

    Yi Ling
    Malaysia

  • Monday September 23, 2002 at 3:36 pm

    S. Ames

    The exception to the Professor's General Rule, is his 2 exceptions-

    "Those borders henceforth could only be changed by one of two processes: first, explicit agreement between Israel and the authorized representatives of Palestine, and second, in the few cases of limited disputed areas where the verbal description contained in Resolution 181 was ambiguous in terms of existing maps or surveys, by international arbitration. The Security Council had and has no power to change international borders.

    Have the 2 situations been legally shown to apply?

    So S. Ames, if you wish to approach it from the legal approach, then you WOULD put your questions within any or both of the exceptions to the General Legal Rule.

    In other words, if you put outside the Professor's 2 Exceptions, you are putting the questions from another Discipline, which is not necessarily law, or which is not law.

    Your hypothetical questions and answers appear to be outside the framework of the 2 Legal Exceptions to the Legal General Rule.

    Thus, while the FRAMEWORK of your hypothetical question and answers are OUTSIDE THE LEGAL LIMITS OF LAW , they may be within POLITICS, or OTHER DISCIPLINES.

    It is the clear delineation of which framework your question sprouts from, that will clarify the kind of answers you would expect.

    If you want an international law answer, then you need to enter into the Professor's Discourse and his 2 Legal Exceptions.

    If you wnat an internaitonal political answer, then you would invite others in Your Discourse and your finding that, "The Arab aggression of 1948 must have nullified forever any resort to legalizing the borders of the British proposal."

    If you choose to invite others into Your Discourse, you would do well, to put forward facts and arguments that, present the basis of your International Political Argument.

    Yi Ling
    Malaysia

  • Monday September 23, 2002 at 3:56 pm

    S. Ames

    Identification of Frameworks are important as each framework has its values, end purpose and objective.

    Contrast - S Ames Framework ---t the partition borders must have been nullified by the attempt by the Arabs to exterminate the Jews and erase the newly procalaimed State of Israel." and "It cannot be possible that international law (or morality) supports the concept that the Jews could lose all of their territory if the Arab aggression succeeds but if it fails, the original territory boundaries proposed for the Arab state must be restored to allow the Arabs multiple attempts to exterminate Israel. The Arab aggression of 1948 must have nullified forever any resort to legalizing the borders of the British proposal."

    with Professor's Framework-----"Legal title to the land was not conferrred by Resolution 181 alone but rather by Great Britain's acceptance of the terms of Resolution 181. The State of Israel owes its entire legal existence to the proper exercise by Great Britain of its League of Nations' Mandatory Power over the territory of Palestine. It owes nothing to the United Nations and, by the same token, cannot claim any additional rights from the United Nations. Instead, as soon as Resolution 181 was passed (and of course Great Britain voted in its favor), the legal borders between Israel and Palestine were forever fixed. Those borders henceforth could only be changed by one of two processes: first, explicit agreement between Israel and the authorized representatives of Palestine, and second, in the few cases of limited disputed areas where the verbal description contained in Resolution 181 was ambiguous in terms of existing maps or surveys, by international arbitration. The Security Council had and has no power to change international borders." and "The sanctity of international borders is a principle of international law that antedates the Charter of the United Nations; in fact it goes back five thousand years" and "No matter who was the aggressor, international borders cannot change by the process of war. Resort to war is itself illegal, and while self-defense is of course legal, the self-defense cannot go so far as to constitute a new war of aggression all its own. And if it does, the land taken may at best be temporarily occupied, but cannot be annexed. Thus after all the wars, the bloodshed, aggressions and counter-aggressions, acts of terror, reprisals, and attendant UN resolutions, nothing has changed the legal situation as it existed after Resolution 181 in 1947. The legal boundaries of Israel and Palestine remain today exactly as they were delimited in Resolution 181."

    This latest debate is not of, which is the more correct view of law of legal borders, but it is a cross discplinary debate of what is the legal border.

    S Ames argument stems from outside pure law view point while Professor's arguments stems from a pure law view point.

    Both through different disciplines purport to state that this is the legal border or that is the legal border.

    If S Ames wish to construct a legal argument, then his legal thesis can be examined through legal view points. Currently he is using non law disciplines to arrive at the legal border of the 3 entities, Israel, Palestine, City of Jerusalem.

    Yi Ling
    Malaysia

  • Monday September 23, 2002 at 5:18 pm

    S Ames

    You have offered us your assessment, idea, notion of 'the Political Border' of Israel, Palestine, City of Jerusalem

    as 'the Legal Border' of Israel, Palestine, City of Jerusalem,

    based on your notion of political constructs.

    Thus your political arguments are not based on Legal constructs or legal premise.

    This comment does not attempt to invalidate your political comment or idea or construct.

    This and the precediing comments only endeavours to distinguish between your Political Constructs and the Professor's Legal Constructs and to highlight the distinction between the 2 different disciplines.

    In common parlance, one cannot compare apples with oranges.

    Yi Ling
    Malaysia

  • Tuesday September 24, 2002 at 3:09 am
    Yi Ling: You may want to review my comments regarding K-B (See April 15, May 11 and 13).

    S Ames: See my previous comments about "no fault war" on May 29th.

    Morley Harper
    Detroit, Michigan

  • Tuesday September 24, 2002 at 11:03 am

    Morley Harper of Detroit, Michigan,

    I have perused your mentioned postings. I would like to address the issue raised in your posting of Saturday May 11, 2002 at 3:55 pm, 套Before proceeding, there is the question of whether there is still a trust: ..UN 181 (Part I.A.) terminated the Mandate (not just Britain's role as the Mandatory power): "The Mandate for Palestine shall terminate as soon as possible but in any case not later than 1 August 1948." (Surely none of the requirements of a trust, Article 22 of the League of Nations Covenant, have been carried out since.) The UN Charter granted the General Assembly supervision over non strategic trusts; it's absurd to argue that the partition was legitimate but that the termination of the trust was not.

    To do that I would start with reproduction of the extracts of the Professor痴 8 points on the Mandate & trust-

    (1) Professor Anthony D'Amato痴 Monday May 06, 2002 at 3:33 pm .Second, the "termination of British rule" is not determinative of the existence of the Mandate for the same reason that a particular trustee is not essential to the continued operation of a trust. .Third, the international boundaries do indeed exist, precisely as they were spelled out in Resolution 181--or to put it perhaps more accurately, either international boundaries exist or the Mandate itself is still in existence. But in either case, the only legal borders between Israel and Palestine are those contained in Resolution 181, and nothing subsequent to 1947 has changed the legal situation (the military situation, of course, is entirely different).

    (2) Professor Anthony D'Amato痴 Thursday May 09, 2002 at 12:14 am.A trust is divided not according to the wishes of the beneficiaries, but according to the terms of the trust instrument. Unless one understands this common-law concept of trust, one cannot understand the Palestinian Mandate. The line drawn by the British in 1947, authorized by Resolution 181 ("recommended" if you prefer--it doesn't matter), created the sole boundary between the new Jewish State and the new Arab State. Of course, once created, the two states can get together and agree on a different boundary. But (a) it cannot be done by force, and (b) it requires two states. The state of Palestine has not come into existence.

    (3) Professor Anthony D'Amato痴 Monday May 13, 2002 at 12:56 am Although the Mandate was dated to expire in August, 1948, an essential term, namely the creation of an "Arab state," was not fulfilled. Of course this was the fault of the neighboring Arab countries, but one still has to protect the beneficiaries of the trust, namely, the people living in the area. The Jewish people were protected by the creation of their state, but the Palestinian people were not protected. Therefore I would argue--and you may well disagree with me--that the Mandate survives until its substantive terms are fulfilled.

    (4) Professor Anthony D'Amato痴 Sunday June 09, 2002 at 6:35 am . What about GAR 181? It was called a "resolution" (which is why I've put that word in quotes) but in fact it was an authoritative finding. The GA found that the Palestine Mandate could be terminated and independence for the people could be established by making two states out of the territory rather than just one state (as had been the case with all other Mandates and Trust Territories).

    (5) Professor Anthony D'Amato痴 Tuesday June 11, 2002 at 2:35 am An authoritative finding in the context of an international Mandate or Trust is a mixed question of law and fact, or more precisely, a factual determination made under the aegis of the mandate instrument. When I worked on the South West Africa cases in the early 1960s, it was my job to draft the portions of the brief (for the plaintiff states Ethiopia and Liberia) on the devolution of the South West African mandate as if it had been supervised by the Trusteeship Council. (Like the Palestine Mandate, the South West African Mandate was never negotiated with the Trusteeship Council and so did not fall under the TC's actual jurisdiction.) I made a number of proposed intermediate findings of fact concerning the situation in South West Africa--the degree of participation of the inhabitants in local government, the degree and universality and relevance of education, the economic well-being of the people, opportunities for advancement, etc. All of these led up to my proposed ultimate authoritative finding: that an extension of the apartheid system into South West Affica would contravene the terms of the Mandate. The Mandate would be contravened because the well-being of the inhabitants would in all the particularities examined, be worsened rather than promoted by racial discrimination. Except for the apartheid system, South West Africa by the 1960s was prepared to stand alone. And indeed, in due course it became the independent nation of Namibia. It had come a long way from its Class C Mandate status. Palestine began as a Class A Mandate. The obstacle was not apartheid or any other overarching system; rather, it was the personal antagonism between Jews and Arabs, fueled not by the Palestinians but by the neighboring Arab states. This was an unprecedented situation for the UN. Palestine was clearly ready to become an independent state and get rid of its status as a Mandate, except for the fact that a democratic government would be divided pretty much down the middle, and waves of Jewish immigrants from Europe would upset whatever political balance might have been drawn between Arabs and Jews in a new government. In other words, but for the Arab-Jew division, Palestine could have been given its independence. Under this unique circumstance, it would not have made much sense for the UN to continue the Mandate. The situation wasn't going to get any better; indeed, immigration would make it more volatile. The people weren't going to get any closer to standing alone than they already were; they did not need more tutelage in self-government, for example. Thus the Mandate was all but ready to expire on its own--except for the conflict between Arabs and Jews. Thus, the reasonable solution led to an authoritative finding by the UN General Assembly (acting for the UN as a whole, including the Trusteeship Council which did not have jurisdiction over Palestine) that splitting the country into two new nations would fulfill the terms of the Mandate. Thus independence would come to Palestine not as a unitary state but as two states. As I said earlier, Great Britain for political reasons did not want to endorse this proposal, but they had a lot to do with thinking it up, and they did not vote against it. Thus Resolution 181 in November 1947 said, basically, that the two-state solution would terminate the Mandate, and that the partition should be thus-and-so (taking into account projected Jewish immigration), along specified geographical lines and markers. Now, in fact, the UN's solution has been only half fulfilled. Israel became a state in 1948 but there was no comparable Arab state (although of course, as has been mentioned in this forum, a number of Arab entrepreneurs gave it a good try in the hopes of installing themselves as the new government of the Arab state.) So what we were left with after Israel became a state in May, 1948, was a UN boundary line between the Israeli state and the forthcoming Arab state. In my opinion, nothing since then has changed as a matter of law. Nothing Jordan has done, or Israel has done, or the UN Security Council has resolved (whether in Resolution 242 or any other), has affected the international legal boundary. In particular, international boundaries do not change as a result of the use of force, for reasons previously given. What about the territory underlying the proposed Arab state? What is its status today? If you accept my argument, it follows that the "Arab" portion of Palestine is still a UN Mandate. It will cease to being a mandate if an Arab state comes into being. Obviously, the negotiations for an Arab state -- now called the Palestinian State --will deal with the boundary questions. But a sovereign state always has the right to cede portions of its territory. I imagine that the US and Israel and other negotiators will ask for a final "closing" that establishes a Palestinian State at the same moment that it fixes the boundaries of that new state. The Arabs have already proposed that these boundaries can be the pre-1967 boundaries which give Israel more than double the land that was allocated under the 1947 Partition. As I said at the outset, I think that's a pretty good deal for Israel. However, Israel has to decide for itself, just as the new Palestinian state has to decide for itself, whether it's a good deal. Like a successful labor negotiation, both sides are going to walk away unhappy.

    (6) Professor Anthony D'Amato痴 Thursday June 20, 2002 at 12:45 amThe mandate issue, as it has developed in this interesting forum, has led to some advocates of the position that Jordan is the Mandatory, others advocating Israel as the Mandatory power, and others advocating Great Britain. "And the winner is ... New Zealand!" Seriously, the identity of the mandatory power is not important, just as the identity of a trustee is not important. What is important is the trust. The Mandate document issued by the League of Nations, as well as Resolution 181, only reflect the underlying Mandate, whose telos -- whose purpose for being -- is to bring the people to independence and self-government. Thus Resolution 181 can't be parsed like a contract, as Mr. Kopelman wishes, but rather has to be interpreted like a Constitution, in which the rights of the people are not exhaustively enumerated. I maintain that the Mandate (the trust) itself (not the piece of paper setting up the Mandate) does not end until the Palestinian people achieve self-government. The Jewish Palestinians achieved self-government in May 1948, but the rest of Palestine has not yet done so. As for Mr. Kopelman's "ironic" thought--that if the Mandate exists the settlements are legal, that would have been true prior to the partition of 1947. After the partition, we may have a curious one-sided situation. Israel may have the right to bar Arabs from purchasing land in Israel, because Israel is a state. But Palestinians do not have the right to bar Israelis from purchasing land in the Mandate territory, because Palestine is not a state. Thus, I think there is nothing wrong with Jewish settlements in Palestine provided the settlers purchase the land from the Palestinians who are the owner-occupiers of the land the want to purchase. Of course, to the extent that they simply bulldoze Palestinian farms and houses and carve out Jewish settlement areas, then it's simply territorial aggression, and it cannot lead to title in the land.

    (7) Professor Anthony D'Amato痴 Thursday July 25, 2002 at 7:02 am Thanks to Mr. Kopelman for restating the questions. .As for Mr. Mobarek's question, UNGAR 181 was not, in my view, a "resolution" in the normal sense of a nonbinding expression of attitude or policy by the General Assembly. Rather, in this special case, it was a surrogate for an authoritative finding by the Trusteeship Council which should have had jurisdiction over the Palestine question but was not given jurisdiction over it. The "mandates" regime of the League had to go somewhere, and in my view it went to the UN as a whole, which means that it went to the General Assembly. (If I recall correctly--and someone out there can advise me on this point--the committees on information which supervised the peaceful transition to decolonization of a great many small territories, were a creature of the General Assembly.) As a general matter--and in response to Mr. Ames' question whether the Israel-Palestine conflict is similar to many others--I think we're dealing here with a most unique situation. The closest analogy is rather distant--the one I mentioned about the South West Africa Cases. There's really nothing similar enough to the Palestine border dispute to glance any light at it. That's why it's even misleading to use words like "treaty" and "resolution" in this context, because they obscure more than they disclose. The essence of the situation is that this is a mandate, a trusteeship if you will, that cannot be wholly conceptualized within the framework of law courts. It takes a certain amount of familiarity with the rise of the Chancery court system in England and the idea of equitable jurisprudence to get a handle on what the framers of the Covenant of the League of Nations had in mind. Palestine is the last remaining mandate, and we probably will not have a chance to use this ancient learning again, but it has turned out to be a very important mandate. We scholars do not have the time or talent to go to the Middle East and get on a soapbox or help distribute food to the refugees or network at great length with distressed Israeli citizens, but we can do what we do best, which is to dig below the surface of the arguments and charges and invective that characterize debates on this subject, and see if doing the "legal thing" might in some small way possibly help.

    (8) Professor Anthony D'Amato痴 Thursday August 08, 2002 at 12:48 am Although laypersons may so think, a careful reading of the UN Charter in its entirety shows that the powers of both organs are limited. Indeed, the "range" of GA jurisdiction is much broader than the SC, while the military power of the SC is stronger within the Charter's specified limits. But in either case, as I have tried to show at some length in the earlier posts in this forum, the mandate power resided in the League of Nations, and whan the League was extinguished in 1946, the mandate power devolved to the UN which had been established in 1945. It was contemplated that the Trusteeship Council would take over the mandate supervision, and for the most part that is what happened, but it did not happen with respect to Palestine nor with respect to South West Africa. Except for the fact that these are class A and C mandates respectively, much of the same legal analysis applies to both. As I argue, it is the GA, not the SC, which inherits the mandate supervisory power, as it's power is much broader than that of the security council. The latter properly stepped in when there was a threat to the peace in resolution 242, but it had no power to redraw the lines of the mandate, and in fact, did not attempt or purport to do so.

    Morley Harper, as extraction and reproduction has taken time, another day I will comment on the extracts of the Professor痴 legal position on the 鍍ermination as well as 兎xistence of the Mandate as shown above, to refute or support your view that, 妬t's absurd to argue that the partition was legitimate but that the termination of the trust was not.

    Yi Ling
    Malaysia

  • Friday October 04, 2002 at 10:07 am

    The move by EU of 29 August 2002 for a provisional state of Palestine by August 2003 and a final state by 2005 is welcomed and so too that of the QUARTET EU, USA, RUSSIA, UN, of 17 September 2002 agreeing on a provisional state of Palestine by 2003 and a final state by 2005.

    Under the EU proposals,29 Aug 2002 , Israel and the Palestinians would share Jerusalem, while their territories would return to those of 1967, with a few "proportionate exchanges" of territory. http://www.jerusalem.indymedia.org/print.php?id=69671

    Under the QUARTET agreement, 17 Sep 2002 the Israeli occupation that began in 1967 will be ended through a settlement negotiated between the parties and based on UN resolutions 242 and 338, with Israeli withdrawal to secure and recognised borders. http://www.jmcc.org/new/02/sep/quartetstat.htm

    Yi Ling
    Malaysia

  • Sunday October 06, 2002 at 12:29 pm
    Communicated by the Foreign Minister's Bureau of ISRAEL - 4 October 2002-- Foreign Minister Peres noted that joint efforts relating to points contained in the Quartet's communique (September 17, 2002) that are acceptable to all sides should be continued. http://www.mfa.gov.il/mfa/go.asp?MFAH0mgm0 Communiqu issued by the Quartet / New York, 17 September 2002 -United Nations Secretary-General Kofi Annan, U.S. Secretary of State Colin Powell, Russian Foreign Minister Igor Ivanov, Danish Foreign Minister Per Stig Moeller, High Representative for European Common Foreign and Security Policy Javier Solana, and European Commissioner for External Affairs Chris Patten met today in New York. 的n its final phase (2004-5), the plan envisages Israeli-Palestinian negotiations aimed at a permanent status solution in 2005. Consistent with the vision expressed by President Bush, this means that the Israeli occupation that began in 1967 will be ended through a settlement negotiated between the parties and BASED ON U.N. RESOLUTIONS 242 AND 338, WITH ISRAELI WITHDRAWAL TO SECURE AND RECOGNIZED BORDERS. ..http://www.un.org/news/dh/mideast/quartet_communique.htm

    Yi Ling
    Malaysia

  • Sunday October 06, 2002 at 12:53 pm

    (1)This appears to be a seriously inconsistent development

    of proceeding on 242 and 338 on 17 September 2002 and

    proceeding unilaterally contrary to 242 and 338 on 1st October 2002-

    (1)(a) 徹n September 30, US President George Bush signed the State Department Authorization Act (H.R.1646), which recognizes Jerusalem as Israel's capital. The bill changes the status of Jerusalem by a series of provisions, which demand that the American consulate in East Jerusalem (serving mostly Palestinians and directly answerable to the US State Department) go under the American Embassy in Tel Aviv; in effect, creating a dejure branch of the American Embassy in Jerusalem, under the direction of America's Ambassador to Israel.

    The bill further demands that all US government maps and official documents identify Jerusalem as the capital of Israel, while also giving American citizens born in Jerusalem the right to demand that their U.S. government-issued documents, such as passports and birth certificates, identify Israel as their birthplace.

    However, today (October 1, 2002) after signing the bill, US President Bush rejected efforts to begin measures moving the US Embassy from Tel Aviv to Jerusalem, with the State Department spokesperson, Richard Boucher noting, "Our view on Jerusalem is unchanged. Jerusalem is a permanent status issue that must be negotiated between the parties.''

    In 1995, US Congress passed the Jerusalem Embassy Act, requiring the US Embassy move to Jerusalem by 31 May 1999. However, the bill included a national security waiver, and presidents have postponed the move every six months since the law was enacted. http://www.lawsociety.org/Press/Preleases/2002/oct/oct1.html

    (1)(b) 鄭long with many other countries, the United States maintains its embassy in Israel in Tel Aviv to reflect the contested nature of Arab East Jerusalem, which the Jewish state occupied totally in 1967 and later annexed.

    Israel's annexation of the city has never been recognized by international community and the United States has consistently held that a resolution to the city's status must be negotiated by the Israelis and Palestinians in the context of a final peace deal. http://www.palestine-pmc.com/news/2002/
    oct/new-1a-10-02.html

    (2) Just on 17 September, 2002 US together with the other 3 members of the Quartet signed the Communique - .Consistent with the vision expressed by President Bush, this means that the Israeli occupation that began in 1967 will be ended through a settlement negotiated between the parties and BASED ON U.N. RESOLUTIONS 242 AND 338, WITH ISRAELI WITHDRAWAL TO SECURE AND RECOGNIZED BORDERS. ..http://www.un.org/news/dh/mideast/quartet_communique.htm, and then on 1st October 2002 US passes the bill on Jerusalem .

    Yi Ling
    Malaysia

  • Monday October 07, 2002 at 10:45 pm
    Yi Lang does an excellent job at reiterating one side of the argument, but my suggestion is that this argument be sent to the Trusteeship Council of the UN. That it no longer exists because the UN recognized that there were no remaining trust territories seems to dispell the "shoulda-coulda-woulda" argument.

    http://www.un.org/documents/tc.htm

    Whereas Prof. D'Amato's legal arguments may be perfectly sound (about trusts, contracts and how Res. 194 "should" be parsed), it appears to be an original intent argument that is contradicted by the very same people who produced the resolution. Within months, primarily due to Arab rejection of the compromise, the UN GA itself moved away from this proposed solution and sought others. Clearly they themselves did not see it as an authorative finding nor a binding resolution. Their own actions clearly indicate that they themselves parsed it as I do and not as others claim it should now be understood.


    Regarding UNSCR 242, please note that Jerusalem is not mentioned. Arthur Goldberg, the US Ambassador to the UN at the time and one of the authors, has explained: "Resolution 242 in no way refers to Jerusalem and this omission was deliberate... Jerusalem was a discrete matter, not linked to the West Bank."

    The US position has largely been that eastern Jerusalem was not "occupied" by Israel. Certainly very few if any voices in the west claim that western Jerusalem is "occupied", and there is no real dispute that it serves as Israel's capital (since 1950).

    Recommended further reading:
    http://www.jcpa.org/jcprg10.htm

    Leeron Kopelman
    Ann Arbor, MI, USA

  • Tuesday October 08, 2002 at 7:08 am

    Leeron Kopelman says," Yi Ling does an excellent job at reiterating one side of the argument, ..."

    Could you capture in brief the 'one side' of 'the argument', in the above statement, so that i can be clear as 'which' argument and the 'ambit' of it, that you are referring to? Thanks.

    Yi Ling
    Malaysia

  • Tuesday October 08, 2002 at 3:53 pm

    While waiting for Leeron Kopelman's elucidation, i revert to my post of Tuesday September 24, 2002 at 11:03 am to Morley Harper of Detroit, Michigan,

    The key to the issue is the DISTINCTION between :-

    (1) Morley Harper妬t's absurd to argue that the partition was legitimate but that the termination of the trust was not." and

    (2) the Professor's "What is important is the trust. The Mandate document issued by the League of Nations, as well as Resolution 181, only reflect the underlying Mandate, whose telos -- whose purpose for being -- is to bring the people to independence and self-government. Thus Resolution 181 can't be parsed like a contract, as Mr. Kopelman wishes, but rather has to be interpreted like a Constitution, in which the rights of the people are not exhaustively enumerated. I maintain that the Mandate (the trust) itself (not the piece of paper setting up the Mandate) does not end until the Palestinian people achieve self-government."

    I therefore refute Morley Harper's view that, 妬t's absurd to argue that the partition was legitimate but that the termination of the trust was not.

    My reasoning for admitting the partition and REJECTING that the TRUST for the ARAB STATE OF PALESTINE IS TERMINATED is as follows

    (1) Drawing analogies from commercial law practice, where TRUST DEEDS ARE SIGNED, there are times, where parties wish to terminate the trust. There have been times when parties have WRONGLY assumed that, they can just sign a Termination Agreement of the Trust. Properly advised, they realise that once a trust is created, TRUST LAWS APPLY, and that they can ONLY terminate the trust by discharging the trust. That is, the trustee MUST transfer or cause the the trust property to be transferred to the beneficiary (thereby discharging the trust) and then, the beneficiary can re-transfer the same property to the "prior creator of the trust"(if the corporate exercise entails that) This is cumbersome costly time consuming and circuitous but it is the ONLY legal way to terminate the trust and vest the same property with the creator of the trust (if the parties intend that the same property revert to the creator of the trust)

    (2) By the same token, where the trust was created over Palestine, the trust can only be discharged through transferring the Palestinian land to the beneficiaries. ANY PURPORTED TERMINATION OF THE TRUST- ORALLY OR IN WRITING, BEFORE THE TRUST PROPERTY ARE LEGALLY TRANSFERRED TO THE BENEFICIARIES IS NOT VALID UNDER TRUST LAWS.

    It is the legal grounding in the law of trust as a formal discipline in the context of legal discipline and studies, and proper legal practice in trust instruments; that will ensure that the legal practitioner does NOT make the LEGAL MISTAKE of 'PREPARING THE TERMINATION OF A TRUST' BY INSERTION OF MERE WORDS OF TERMINATION OF THE TRUST.' Even if the inexperienced legal practitioner did make such a MISTAKE, by inserting words that the 鍍rust is hereby terminated it has NO LEGAL EFFECT. Prudent and excellent auditors of the company, will then properly point out to the company board that the property in question is still held under trust, even though there is a document signed under seal purporting to terminate the trust.

    As the essence of the Mandate is a trust, thus the mere insertion of words in UN GAR 181 or any other UN GAR, if any or UN SCR, if any, will NOT and CANNOT TERMINATE THE TRUST (MANDATE) until the beneficiaries of the Arab state of Palestine have received their state.

    Law is a discipline with its own rules. Trust laws are part of this discipline with the rule that trust cannot be terminated by mere insertion of words in any written document that the trust is terminated. There is ONLY One LEGAL WAY to terminate the trust. It is to transfer the trust property to the beneficiary. Once legally transferred, the beneficiary can if the beneficiary wants, transfer it to anyone or even to the creator of the trust.

    Professor has endeavoured to elucidate the trust issue from the international law point of view and I have endeavoured to elucidate the trust issue from the commercial and corporate law point of view, based on our different legal exposure. Initially, being untutored in international law, I too was swayed, over whelmed, enticed, distracted by the UN SCR and the precise terms in the UN GAR 181, where the latter in the same breath of partitioning also set a date for termination of the Mandate. However when I read the clues that the Professor gives from international law point of view and relate them to my own ground experience in commercial law practice, I can appreciate the Professor痴 sound international law argument, that the Mandate exists until the Arab state of Palestine is created.

    In ending this posting, the care with which the Professor has taken is reflected best by his statement, 展e scholars do not have the time or talent to go to the Middle East and get on a soapbox or help distribute food to the refugees or network at great length with distressed Israeli citizens, but we can do what we do best, which is to dig below the surface of the arguments and charges and invective that characterize debates on this subject, and see if doing the "legal thing" might in some small way possibly help. and I would agree with it wholeheartedly, and it underlies my endeavour to learn of some basic rudiments of or on international law. However , where elsewhere the Professor has mentioned his concern for the Palestinians, especially the core issue of the trust for the Palestinians to achieve their own state; I would think for completeness in his statement of care, it would be good to add, 電istressed Palestinians as well as Israeli citizens.

    Yi Ling
    Malaysia

  • Wednesday October 09, 2002 at 4:45 pm
    I am glad that Yi Ling legal analysis clarifies what common sense would have made clear from the onset.
    The British had Palestine in trust. They had no right to abuse the trust vested in them even assuming that they had noble intentions of reducing the suffering of European Jewish community (I doubt that was their only motive).
    If they wanted to be charitable they should have done so out of their own land and belongings.

    S Mourad
    Canada

  • Wednesday October 09, 2002 at 6:35 pm

    As stated on Thursday September 05, 2002 at 2:28 am, " This topic on the Legal Boundaries of Israel deals with 3 and not 2 entities

    1st Israel

    2nd Palestine

    3rd International City of Jerusalem

    per UN GAR 181."

    Thus the issue of the existing Mandate (trust) until the Arab state in formation is created would also SIMILARLY extend to the International City of Jerusalem in formation.

    Another day i would like to attempt the continuing legal argument on the continued existing Mandate for this THIRD LEGAL ENTITY.

    Yi Ling
    Malaysia

  • Thursday October 10, 2002 at 3:47 am
    Yi Ling, as I stated, the UN agrees that the trust has been terminated and for 50+ years has acted based on this understanding.

    > the Mandate exists until the Arab state of Palestine is created.

    There is no original stipulation in the Mandate document for the creation of two states, thus the creation of an Arab state is not required for the termination of the trust. I fear you may be getting confused on terminology: in the first half of the 20th century, the term "Palestinian" usually referred to Jews, not Arabs.

    Furthermore, UNGAR 181 specifically states that the partition into two states is a "recommendation":

    Recommends to the United Kingdom, as the mandatory Power for Palestine, and to all other Members of the United Nations the adoption and implementation, with regard to the future Government of Palestine, of the Plan of Partition with Economic Union set out below;

    The UN recognized that the conditions of the trust were met and that the mandatory power could be replaced with one or two states. It recommended 2, but that was rejected and the rest is history.

    Alternatively, if you look at Article 28 of the Mandate, you'll see that it allows the termination of the mandate with but the requirement that Articles 13 and 14 be maintained. These articles pertain to freedom of worship, not the establishment of a state (or two).

    I think the intent and wording of UNGAR 181 are perfectly clear. It was meant to 1) terminate the mandate and 2) recommended a two state solution as a compromise. Again, the very people who wrote it were quick to abandon the recommended solution (due to violent Arab rejectionism).

    Note further (Part I, Article F) that admission into the UN of one of the recommended states is not conditional nor dependent on the existence of the other state. Can it be that the trust was only partially terminated? Or did the 1949 Armistice Agreements (which in theory protected freedom of worship) provide all the beneficiaries their due?

    Forgive me if I'm not impressed by a revisionist argument that the intent was to first establish a two state solution which would terminate the trust.

    If such was the intent, I think it would have been written much differently and we wouldn't have this wonderful discussion. Furthermore, if it had been intended that way, I don't think the UN GA would have moved away from this, within months of its passing, in search of alternate solutions even while continuing to consider the mandate to be terminated.

    Leeron Kopelman
    Ann Arbor, MI, USA

  • Thursday October 10, 2002 at 7:51 am

    Leeron Kopelman, Ann Arbor, MI, USA

    Point of clarifacation, "Is your post of Thursday October 10, 2002 at 3:47 am, the 'response to my query to you of Tuesday October 08, 2002 at 7:08 am- " Leeron Kopelman says," Yi Ling does an excellent job at reiterating one side of the argument, ..." Could you capture in brief the 'one side' of 'the argument', in the above statement, so that i can be clear as 'which' argument and the 'ambit' of it, that you are referring to? Thanks."

    so that i am clear that IF it is so and if it is THAT.

    Yi Ling
    Malaysia

  • Thursday October 10, 2002 at 11:49 am
    Yi Ling, as you yourself stated:

    as extraction and reproduction has taken time, another day I will comment on the extracts of the Professor痴 legal position on [another topic]

    You did an excellent job restating the Professor's arguments. But you failed to provide any of the counter-arguments presented by anyone else. Yours was a reiteration of one opinion, not a summary of the discussion to date.

    Much of what I stated yesterday, and more, had already been presented by various people.

    Leeron Kopelman
    Ann Arbor, MI, USA

  • Friday October 11, 2002 at 12:33 pm

    Leeron Kopelman, Ann Arbor, MI, USA

    Thank you for your clarification . I now understand the point you are making, even though I disagree with your observations for the following reasons

    (1) I was addressing one legal issue, the issue of the existence or termination of the trust. This LEGAL ISSUE arose, in the context of sighting the wording in the UN GAR 181, which states that the Mandate would terminate by a certain date. At first few blushes, it puzzled and perplexed me, as my earlier postings had after much difficulty accepted UN GAR 181 as the 喪atification document for legal purpose of the legal borders of Israel, the Arab state of Palestine in formation and the International City of Jerusalem in formation, instead of the UN SCR 242.

    (2) Thus the entire focus of my post on Tuesday October 08, 2002 at 3:53 pm, was to determine if the trust is in existence. I did a mental short cut, when I read the Professor痴 posts as I had copied for reference in my post of Tuesday September 24, 2002 at 11:03 am. The mental short cut, was that it dawned on me that THE TRUST EXISTED because of the BASIC LEGAL NATURE OF A TRUST UNDER TRUST LAWS. It also dawned on me, that trust laws in commercial practice is akin to trust laws in international law. Having mentally and legally reconciled for myself, the discrepancy between the wording in the UN GAR 181 on the termination of the Mandate (i.e. trust) and the existence of the trust (i.e Mandate), I proceeded to make this understanding available for the benefit of others. I realized many of us had difficulty recognizing this nature of trust in international law, as I had admitted so myself , on Tuesday October 08, 2002 at 3:53 pm 的nitially, being untutored in international law, I too was swayed, over whelmed, enticed, distracted by the UN SCR and the precise terms in the UN GAR 181, where the latter in the same breath of partitioning also set a date for termination of the Mandate.

    (3) There was to me no 斗egal necessity to consider many of the other posts, for I had in my earlier posts addressed those issues. The final post of Monday September 23, 2002 at 5:18 pm, sums up the legal point :套S Ames , You have offered us your assessment, idea, notion of 'the Political Border' of Israel, Palestine, City of Jerusalem as 'the Legal Border' of Israel, Palestine, City of Jerusalem, based on your notion of political constructs. Thus your political arguments are not based on Legal constructs or legal premise. This comment does not attempt to invalidate your political comment or idea or construct. This and the precediing comments only endeavours to distinguish between your Political Constructs and the Professor's Legal Constructs and to highlight the distinction between the 2 different disciplines. In common parlance, one cannot compare apples with oranges.

    (4) The key legal issue is , 的s the Mandate a trust? That issue I too posed, on Thursday September 05, 2002 at 8:35 am 套Leighton Professor of Law Anthony D'Amato has led us to think that the Mandate is a trust. The question is, Is it a trust ?箔Only if it is a trust, is it irrelevant that Palestine is not included under any of the UN痴 three (3) extensive Lists of Non-Self-Governing-Territories since 1945: - Trust and Non-Self-Governing Territories, 1945-present - Non-Self-Governing Territories listed by General Assembly - Trust Territories that have achieved self-determination. If it is a trust, it is irrelevant that USA attempts to create a temporary trusteeship for Palestine may not have succeeded. If it is a trust, it is also legally un-necessary for USA to attempt to create a temporary trusteeship for Palestine as there is already a trust, which has not been fully discharged as the trust property has not been transferred to the other 2 entities, Arab state of Palestine and UN administration of the International City for Jerusalem .

    (5) I never did really consider the legal issue of 的s the Mandate a trust? as the Mandate is a creature of international law, as I have oft repeated I am untutored in international law. When I set out to prepare my post of Tuesday October 08, 2002 at 3:53 pm, I went on the legal basis that the Mandate is a trust.

    (6) Once I accept the advice of the Professor that the Mandate is a trust, I drew on all the basic laws of trust. In that way, I realized that the discrepancy between the purported termination of the Mandate (i.e trust) and the existence of the Mandate (i.e. the trust) was a red herring (i.e. not a legal issue).

    (7) Thus I drew on my legal practitioner痴 experience in commercial and corporate laws where I have prepared trust and discharged trust, to make the issue clear for others, particularly those of us who are untutored in international law or laws on mandates under international law.

    (8) I was approaching the issue from a legal stand point of the basic nature of trust under trust laws. It therefore was un-necessary to read the fine print of the Mandate the way you have read, once a Mandate is a trust at law. Once a Mandate is a trust at law, all the basic rules of trust as we learn in law school and in legal practice comes to play.

    Nonetheless one day I will revert to your fine print reading of the Mandate , as currently in addition to work commitments I am endeavouring to research and prepare a paper on Asean Free Trade and World Trade Organisation for Small Medium Enterprises in Malaysia for late this year. As a citizen of an upper middle income developing country, the regional crisis of late 1990痴 and the recent global slow down post September 11, 2001, has affected the ASEAN region. National economies depend not jujst on the major players but also the Small Medium Enterprises. Thus the survival and prosperity of the 40,000 Small Medium Enterprises in Malaysia is of concern to me. While Malaysia is ranked among the top 20-30 countries in the world for her competitiveness, the entry of China into WTO has added much competition with relocation of some businesses there as well as diversion of some foreign investment to China instead of to Malaysia and the ASEAN region. Therefore the ability of Small Medium Enterprises in Malaysia to effectively compete would be enhanced by their understanding or better understanding of the advantages that are availed by Asean Free Trade (like your NAFTA) and World Trade Organisation.

    I note that there is another 笛erusalem to the west of your place, Ann Harbour, MI, USA http://www.mapquest.com/maps/map.adp?addtohistory=
    &country=US&address=&city=Ann+Arbor&state=
    mi&zipcode=&historyid=&submit.x=28&submit.y=9

    Yi Ling
    Malaysia

  • Monday October 28, 2002 at 5:52 pm
    I'd like to thank everyone who contributed to this forum. It seems we've reached the end of the line. I hope that some of the contributors here who saw fit to post huge sprawling messages will refrain from doing so as they participate in other forums in the future. Email forums work if contributors keep their messages brief and to the point. Otherwise, they tend to spread out over the entire landscape and end up defeating themslves.

    Anthony D\'Amato
    Northwestern Law School
    Illinois, USA