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The Legal Boundaries of Israel in International Law
Anthony D'Amato
Leighton Professor of Law
Northwestern University School of Law
Discussion Archive
- Friday April 12, 2002 at 9:47 am
I would like to comment on Professor D'Amato's Article "The Legal Boundaries of Israel in International Law."Israel has already successfully negotiated border agreements both with Egypt and with the Kingdom of Jordan. The basis for both the borders so negotiated was in fact the borders of former Mandatory Palestine. The border with Lebanon, also based on the Mandatory border is not in dispute although Lebanon has not signed a peace treaty. Israel has offered to reach an agreement with Syria also based on the Mandatory boundary, entailing Israeli withdrawal from the Golan Heights, but Syria has not yet agreed to such a boundary.
The border between Israel and the Palestinian territories or with a future Palestinian State cannot of course be determined on the basis of the Mandatory border since no such Mandatory boundary existed. The only boundary that has ever existed between Israel and the Palestinian Territories was the 1949 Armistice Line, which was agreed upon with the Kingdom of Jordan at the time the Palestinian Territories were under Jordanian rule.
Prof. D'Amato proposes that the borders drawn up in the 1947 UN GA Resolution 181 on the basis of a "British proposal" were a "legally authorized demarkation of the Israel-Palestine border." Prof.' Damato writes that Britain "had the power to partition the territory."
I do not believe however this is correct in law. I know of no authority which the British Mandatory authorities had to determine such a boundary (I prefer to use the word "determine" as there was in fact never a "demarcation" of the proposed 1947 boundary). Furthermore they did not in fact attempt to propose a specific boundary. It was the UN Committee that proposed the boundaries and Britain was neither a member of the Committee nor did it submit a formal proposal to the Committee. The recommendations of the Committee were accepted by the UN General Assembly as a recommendation and even at the time had no binding force. Although the Jewish Authorities in Palestine were willing at the time to accept the Resolution, all the Arab States voted against UN Resolution 181, and the then representatives of the Palestinians also rejected it. The UN records show that Britain, to whom the recommendation was addressed, abstained in the vote. Prof.' D'Amato correctly point out that the "Arab States did not seriously entertain the idea of a Palestinian state for almost another forty years." I would add moreover that, for at least the first thirty years of that period, they did not even accept the idea of a Jewish state within any boundaries.
In the intervening years the UN Security Council adopted Resolution 242 which was subsequently accepted by Israel, by the Palestinians and by the neighboring Arab States. It is this acceptance which gives the Resolution its present authority. The Resolution, as Prof. D'Amato correctly points out calls for withdrawal from "territories occupied in the recent conflict" the conflict was of course the 1967 War, the resolution also refers to the need for "secure and recognized boundaries." Thus Resolution 242, accepted by all the parties, categorically relates the border issue to the 1949 Armistice line, which was the demarcated line in June 1967. In the Declaration of Principles signed by Israel and the PLO in 1993 and witnessed by the US and Russia, the Parties agreed to negotiate a permanent status agreement, including borders, based on UN SC Resolution 242. Thus the detailed "secure and recognized" boundary will have to be negotiated between Israel and the Palestinians.
The 1947 UN General Resolution recommendation for a boundary was part of a non-binding UN General Assembly; the boundary was never implemented or demarcated. The Resolution was rejected categorically by all Arab States and by the Palestinians and not supported at the time even by the British Mandatory Authorities to whom the recommendation was addressed. UN SC Resolution 242 introduced a different basis for boundaries and was accepted as such by Israel, the PLO and all the Arab States. The boundary between Israel and a future Palestinian State will have to be negotiated on the agreed basis of UN SC Resolution 242. This was how the boundaries with Egypt and Jordan were negotiated and the principle is, I believe, one firmly based on international law.
Robbie Sabel
Visiting Professor of International Law
The Hebrew University Jerusalem - Friday April 12, 2002 at 2:49 pm
With regard to "The Legal Boundaries of Israel in International Law" by Anthony D'Amato, Leighton Profesor of Law Northwestern University School of Law and reply by Robbie Sabel, Visiting Professor of nternational Law The Hebrew University Jerusalem, I would like to point to the key issue forgotten by both parties, namely that during British Mandate over so-called Palestine, both Jews and Arabs had an ID stating: "nationality -- Pelstiniain, religion -- Jewish, or Muslim." Therefore, no people or nation called Palestinians exist since 1947, and there cannot be any Palestinian state as such for non-existing state actors. To counteract illegal Arab-Palestinian claims to their rights to native Jewish lands of former Kingdoms of Israel and Judea (curernt Lebanon, Syria, Jordan, and the territories leased by Israel to Arafat under now defunct Oslo Agreement, former PM Golda Meir stated, "I am a Palestinian as well." Furthermore, Arabs have no legal title to native Jewish lands, and illegal, self-proclaimed Arab-Palestinian states of Jordan and Lebanon exist already, with Palestinians in the majority in both Parliaments, not forgetting the fact that those Arabs tried to overthrow self-proclaimed King Hussein of Jordan and were crushed to death by his tanks (8000 murdered), and in Lebanon they massacred Christian Arabs and destabilized the whole region with their terror and destroyed Beirut -- Paris of the Middle East. If those Arabs had any rights, including human rights, they lost them through genocide of Jews and crimes against humanity committed together with their British, Nazi-German and Soviet masters. So, there are no Palestinian people and cannot legally be any Palestinian state, otherwise it should be inhabited by both Jews and Arabs, former subjects of British Palestine. Sol Budnik, former professor of Comparative Law, president of UTG-PRI. a paralegal human rights entity, Israel.
SOL BUDNIK
United Trial Group -- Peoples Rights International
ISRAEL - Saturday April 13, 2002 at 10:19 pm
In your article you state as follows: The six-day war of 1967 further increased the size of Israel at the expense of the Palestinians My response: In 1962 the PLO publishes its Covenant which called for the destruction of Israel and for the annhilation of its people. In May of 1967,newspapers in Cairo and Damascuse and Baghdad stated that Arab armies were about to invaded Israel and Nasser announced that " this time we will exterminate the Jews" At the time, the Egyptians ordered the UN out and closed the straights of Tiran. In response to the blockade and the threats, the Jews attacked Egypt. A few days later, Syra andJordan, for no reason attacked Israel The purpose of the invasion was to carry out the promise of genocide set forth in the Charter. Today, 800,000 Pal kids are taught that when they grow up, they must kill Jews and Destroy Israel and that to die in that effort, means entry into heaven. My question: The Palestinians are the only people in the world whose national purpose is genocide. Why should a people who have such evil motives receive territory or receive anything ?
Alan Bernson
USA - Monday April 15, 2002 at 2:55 am
I agree with Prof. A. D´Amato's legal and political comments. However, I like to put additional facts. I.E General Sharon, was one of the original "terrorists" of the past, fighting for creation and recognition of Israel as a state. Presently, Palestinians are duing the same, they want recognition of their state, just as Israel obtained its recognition. What is the difference, except bias, or double standard so common in international politics. However, the law should prevail, and Mr. Sharon should be accountable for his actions.
Carla Berg
Austria - Monday April 15, 2002 at 5:47 pm
The mandated Palestine is the both sides of the Jordan river,the westbank is the Jewish,the east side is the arab Palestine,both people has right to settle on either place,if they wish so, and accept the laws and rules of the respective states,be Arab or Israel.Even so the arabs would benefit to inhabit 2/3 of Palestine, remain 1/3 for the Jews.Preserve the arab or jewish identity of these two countries,immigration should be regulated.This is the only solution to be acceptable.
Otto Bleuer
Canada - Monday April 15, 2002 at 10:34 pm
Sol Budnik's response demonstrates why this conflict is intractable. He casually erases the identity of millions of people by claiming that since his people stole their land in 1947, they don't exist. Such refined humanity, decency and goodwill is the root of this crisis. So long as Budnik and his ilk hold sway, there will be no peace.
Kija Persdotter
MN/USA - Monday April 15, 2002 at 11:48 pm
This is a fascinating discussion, but I have a few questions and points for consideration by Prof. D'Amato: 1. Should the 1928 Kellogg-Briand Peace Pact also be taken to mean that all European borders changed as a result of WW II should revert to their state in 1928? (Especially of the signatories? For a series of wonderful maps, see http://users.erols.com/mwhite28/post-ww2.htm) 2. UN Resolution 181 states that the trusteeship of Palestine is terminated, yet you seem to argue, on the basis of 181, that the trusteeship continues to exist until the establishment of the second state. Yet surely there has not been a mandate/trust for 54 years. What are we to make of this paradox? 3. If one rejects Tranjordan's and Egypt's illegal conquests and Israel's legal defensive acquisition of these territories, and if there is no mandate/trust, then surely this is a "stateless" territory. 4. If this is a stateless territory, then it is up to the countries bordering it to determine its status -- which brings us right back to UNSCR 242.
Morley Harper
SCS
Michigan - Tuesday April 16, 2002 at 5:37 pm
Also legal arguments are both important and interesting, history tends many times to look in another direction. As Morley Harper correctly observed above, the eastern border of Germany was pushed westward some 200 Km or so as a result of WW2 and despite the sanctity of international borders that Proffesor D'amato preached for. Furthermore, almost all the population of German origin was deported west of this border both from Poland and from the then called Czechoslovakia, making refugees out of millions of people as a result. The "world", it seems, was ready in this case to give up on the sanctity of established international borders for the sake of some higher principle (can we call it a moral principle?) which I can lamely define (I am no lawyer) as the principle that nations carry what may be called an historical responsibility for their wrong doings. In other words, nations who commit acts of agression can be punished and their punishment can be of a teritorial nature. Should not a similar principle be applicable in the case of the Middle East, where the Arab population of Palestine (they did not know at the time they are "Palestinians", but that's another story) chose not to accept UN resolution 181 and instead opened a war of agression on their Jewish neighbours? I know that if the Czech agreed today to let the Sudetten Germans back into their country it would make ny point somewhat weaker, but somehow I don't expect to see that soon.
Moshe
Israel - Wednesday April 17, 2002 at 2:52 am
I would value any observations about the derivation of the rights of Britain as Mandatory to decree the fate of "Palestine" in cooperation with U.N. organs. Perhaps a contrasting hypothetical would help: Had there been a nation of Palestine that was briefly under Ottoman rule, then under British rule, and that nation had a predominant population with an ethnic identity different from its neighbors: a. Would Britain have had the right, as an occupying power in Mandate's clothing, to allow sufficient persons of a different ethnic/linguistic group to immigrate so that the character of the nation changed and two groups concertrated in different areas emerged; b. If the different groups were of roughly equal numbers and spread over roughly equal areas, if Britain had decided to give 90% of the territory to one group and 10% to the other -- and the UN organs endorsed this -- would this be "legal"? c. Finally, if at the time Britain abandoned the mandate a civil war ensued and the group that got 10% of the territory occupied 50%, would that group "own" 50% of the territory or would it be an "occupier" of 40% of the territory? Answers to these questions are not directly the point -- the point is where ANYONE gets the legal authority to ordain the future of an expanse of land. Wasn't Britain an occupying force? Although it assumed control long before the current Geneva Convention re: civilians, did it have the power to do more than to restore the land to its status quo ante -- and what was that status? And as for the groups within, didn't their right of self-determination, recognized in the UN Charter at the time of independence, give them a right to make what they could of a nation for themselves? I think international law gives little guidance on these subjects. In some respects, it is still the "Law of Nations," with nations as the building blocks, and just as Newtonian physics is inadequate to deal with atom smashing, international law is of limited value in dealing with the creation of nations, especially at the dawn of the new, UN era.
Dan Derby, professor
Touro Law Center
NY, USA - Wednesday April 17, 2002 at 4:06 am
I wonder how far back one should apply Prof. Derby's comments. If one were to question the legality of the Mandate and describe Britain as an "occupier", couldn't the same be said of the Ottomans, the Mamluks, the Crusaders, the Arabs, the Persians, the Romans.... Prior to the 20th century, the last non-colonial and self-governing population was the Hebrew Judea. In that light, wasn't the Balfour Declaration about restoring that status quo ante?
Leeron Kopelman
USA - Wednesday April 17, 2002 at 2:22 pm
I like the comments on this site. We have been 'accidently' discussing the Israel-Palestine conflict at the Negotiation and Mediation classes at Rhodes University Law School- South Africa. While the majority of people commenting on this site view the conflict as a matter of boundaries and genocide, we view it as a matter of negotiating styles. Soon or later the issue will be settled at the tables. How will the process go? This is our focus. What mechanisms should be put in place to facilitate those negotiations? Most colleagues down here question the role of US in solving the problem. Others simply view the issue as a matter of self determination. My view is that both Israelis and Palestinians are wrong in the procedures. They have choosen extremist mechanisms and those mechanisms are simply deepening distrust. For sure there will be a Palestinian territory and Israel will continue to exist. What they now need is to concentrate on the way they will live side by side and without threats. Both entities have long standing histories and no one can deny the existence of the other. Though Israel after having disappeared from world maps for centuries emerged under a very fashioned manner after the Nazi genocide, it is equally true that Palestinians existed there and have right to continue existing there as people. If the borders suggested by UN are not accepted, what will happen to the African borders drawn up by the Europeans in the Berlin Conference? The principles applied to settle border issues in Africa should equally apply in the Middle East. After all those principles are the only one now recognised under International Law.
Jorge Aimite
Rhodes University Law School
South Africa - Wednesday April 17, 2002 at 6:24 pm
A Question for any law professor: Since the British administration of the Palestine Mandate was detrimental to Palestinians, can Britain be sued in International Courts for malfeasance, etc.? Krishna Madan English Instructor University of Hawaii - Maui
Krishna Madan
University of Hawaii
Hawaii - Thursday April 18, 2002 at 3:05 am
Let me start with Morley Harper's questions. The changes of Germany's boundaries at the end of World War II were part of the treaty of peace that ended a war in which German aggression was held to be illegal by the Nuremberg tribunal. Germany was penalized additionally by the subsequent peace treaty in that she lost her colonies abroad and parts of her own territory. The situation with Israel-Palestine is quite different. Neither Israel nor Palestine has ever been declared by any competent international tribunal to have engaged in a war of aggression against one another. So under the Kellogg-Briand Pact no territory can be taken from one side by another by virtue of any armed conflict between them (with or without the intervention of other states). Second, Mr. Harper says that there has not been a Mandate/trust for 54 years. But my argument does not depend on the continued existence of the Mandate after 1947. All I argued, above, was that the borders drawn by the General Assembly in 1947 are the only legitimate borders between Israel and Palestine in the entire area today. By 1966, Israel had doubled the amount of land that it was given in 1947. If the Palestinians today were to consent to that doubling, as Saudi Arabia suggests in its proposal to restore the boundaries to their pre-1967 position, the of course the boundaries can change by the simple process of mutual consent. That's why I said at the end of my essay that the Saudi proposal seems to be a good deal for Israel. Mr. Harper's third point is that after 1947 Palestine became a stateless territory. But the fact is that under General Assembly resolution 181, an "Arab State" was explicitly provided for. We might call Palestine a state-in-formation. Under the boundaries established by the Resolution in 1947--which of course also provided for the establishment of a Jewish state--Israel has no right to encroach upon the state-in-formation. It is not vacant land, after all, nor undiscovered territory, or anything like that; it is a settled territory whose inhabitants have a legal right to establish thereon an Arab state. Moshe asks whether an aggressor state can be punished by taking away its land. That is certainly what happened after World War II, but in my view only because the Axis powers were held to be aggressor states at Nuremberg and at the Military Tribunals for the Far East. The closest we have come to "aggression" since 1945 was Iraq's aggression against Kuwait in 1990. Even there, the international community backed away from stripping Iraq of any of its land (though the Kurds were given some degree of protection short of land ownership). So I would conclude that in the Palestinian situation, neither side can take away land from the other side as a punishment for the other side's military acts. By the same token, neither side can add to its 1947 boundaries by virtue of military conquest (whether or not the conquest is morally justified). One might very well criticize international law for not being morally sensitive to ancient claims such as the Jewish claims over the Holy Lands. But don't shoot the messenger! I'm only trying to describe the content of international law as it is, and not as either you or I might like it to be. To my friend Professor Dan Derby, let me briefly reply that no matter how Great Britain came to have sovereignty over Palestine, once it put that land up as a Mandate under the League of Nations, it lost its sovereignty and simply became the legal authority over the land with the responsibility of overseeing its evolution into independent statehood. Dan then asks what if Great Britain and the UN decided on a ridiculous allocation of land in 1947; would that still be legal? My view is that if there had been a 90% - 10% split as in Dan's hypothetical question, any nation could have petitioned the International Court of Justice for an advisory opinon whether such a split was in the best interests of the inhabitants of the territory. Thus, the substantive question cannot be avoided (as indeed it can't be avoided in any trust situation if there is collusion between the trustee and the supervising authority). So I think the ICJ would have thrown out any 90%-10% split. Indeed, I had this "interests of the inhabitants" issue in mind when I argued in the above essay that the 1947 allocation was fair even though it favored Jews over Palestinians, for the reasons above given. But while I think the allocation was fair, I don't think a case can be made that it was outrageous or ridiculous. The UN might have avoided all the subsequent sorry history of the region if it had "sold" the partition plan to the Arab people at the time. Unfortunately the UN was busy contemplating its navel in New York, and didn't pay attention to the disastrous reception soon to be given to Resolution 181. As for the "right of self-determination," it's a rather meaningless phrase unless someone can tell us how we determine who is the "self." For example, if we agree that self-determination should be applied to Ireland, do we say that the people in the island as a whole should vote on the question, or do we say that the people in Northern Ireland should have one election and the people to the south should have a separate election? The outcome of any such self-determination election obviously depends on first determining who the "self" is, but as soon as we do that, we know what the result of the election will be. Finally, Leeron Kopelman notes that if Israel is an "occupier," so were the Ottomans, the Mamluks, the Crusaders, the Arabs, the Persians, and the Romans. True, but their occupations occurred before 1928, when it was legal under international law to gain territory by conquest. No longer so. It even follows, I would argue, that although temporary military occupation at the end of a conflict is probably a necessity, continued and prolonged and indefinite occupation is tantamount to illegal conquest.
Anthony D\'Amato
Northwestern University School of Law
Chicago, Illinois - Saturday April 20, 2002 at 1:25 pm
Although I hear, here in the American Midwest -- and regardless of all the pro-Israel propaganda in mainstream American media -- that President Truman made a mistake by creating Israel ... it would not have been born without our support ... I still believe (despite the attempted massacre of the USS LIBERTY, current Israel Lobby mischief during Clinton and now Bush, etc.) that he did do the right and good thing, creating a Jewish Home Land ... unless Israel does prove only to be a living-space/Lebensraum-grabbing ethnic/religious monster.
And regardless of treaties and other legalities, the bottom line of all this is ... as our JURIST moderators have perceived ... clear, universally accepted, and permanent borders -- which will require the following:
1. A fair division of space between Israelis, Palestinian Christians, and Palestinian Muslims. (Why is the American superpower so indifferent to the fate of the Palestinians of its own majority religion?)
2. A permanent separation of the groups into areas that won't intermingle them. 3. Preservation of religious shrines, unless they are so inciting that they should be destroyed instead. (I have strongly/publicly opposed the ethnic cleansing of the (200,000!) Kosovo Serbs by NATO and the Kosovo Albanians, but the latter's obliteration of Serb religious shrines at least eliminates that motive for Serb re-conquest of all Kosovo (however far in the future). The Taliban's destruction of the Afghan Buddhas was, by contrast, in no way justified or excusable.)
4. Logical, easily defensible borders ... with internationally-manned buffer zones existing for a generation or two, to ensure there aren't violations to justify cross-border incursions. (And Israel's retaliatory invasion of the West Bank is not unlike our General "Black Jack" Pershing's foray into Mexico, in (futile) pursuit of the Mexican bandit leader Pancho Villa.)
5. Intrusive -- as U.S. Sec of Defense Rumsfeld puts it -- inspections of the area's major military powers, to ensure no weapon-of-mass-destruction attacks are possible.
Anything less, and this will just continue indefinitely until there is a major war utilizing "major" weapons and probably dragging the great powers into a far wider holocaust as well. (I notice that not only did Egypt refuse to see Sec. of State Colin Powell, on his tour, it instead entertained the Chinese foreign minister. Our one-sided support of the Israelis is costing us far more than just New York lives and real estate.
Time is running OUT, and the great and regional powers must meet and intervene ... dictating and guaranteeing, if necessary, the optimal boundaries. If the past borders/treaties are just a Gordian Knot hobbling any hope of a reasonable solution, they should just be THROWN OUT. If Churchill, Roosevelt, and Stalin could work out what has proven (overall) to be a fair and workable division of Europe, Palestine shouldn't be unsurmountable by comparison.
Meanwhile, while the world's attention is fixed (by our media) upon the homicidal bickerings of petty states, the polar icecaps are melting (and the oxygen-supplying midlatitudes will become a sterile furnace) as the world population continues to grow out of control. Are we lemmings?
Lou Coatney
Macomb Illinois USA - Wednesday April 24, 2002 at 11:10 am
I would like to congratulate Professor D'amato on his effort to provide a purely legal view of the situation. I have no legal training but was looking for this sort of analisys on the web and this is the only one I found. I want to comment on a side note you made "(I might add that I have always believed that the British decision was both morally and legally justified.)" I think a major hurdle to peace is that both sides do not comprehend each other on that point. Some palestinians accept a settlement as the lesser of several evils, or out of human respect (minority) for their jewish neighbours since they are already there. But none I have met undertands how an informed and non-partisan person could think the genesis of Israel (basically a gift from europe to jews) remotely morally justified. I share their incomprehension, and truly want to understand your point of view. If you feel this discussion is inappropriate in this forum we can switch to another or you can email me directly.
Shibl Mourad
Quebec/Canada - Thursday April 25, 2002 at 9:37 am
Despite his misleading “disclosure” of harboring a bias that favors Israel in the opening paragraph of his essay, Mr. D’Amato’s actual bias against Israel is clearly apparent in his concluding paragraph, which he labels “Comment.” Why does Mr. D’Amato lay the blame for the violence in this conflict entirely at the feet of Ariel Sharon? He says he finds it remarkable that Israel has not accepted “with enthusiasm” the Saudi proposal. The Saudi proposal includes the “right of return” of Palestinians to “Israel proper,” not the West Bank or Gaza. To the Arabs (Palestinians and others), this “right of return” means “restoring THEM as owners of the land.” For the Jews, this would amount to being displaced out of their own land. The blind acceptance of such a suicidal proposal, as Mr. D’Amato seems to advocate, would be, on the part of Israel, imprudent to say the least. Why doesn’t Mr. D’Amato assign any blame to Yasser Arafat, who in 2000 balked at a proposal made to him by Israel’s then Prime Minister, Ehud Barak? That proposal would have granted Arafat 95% of what he had asked for at the time in exchange for the cessation of hostilities on the part of Arafat and the Palestinians. This proposition has been described by some as the most generous offer that has ever (and could have ever) been made to the Palestinians by the state of Israel. Also, what about all of Arafat’s doublespeak and total lack of integrity that he brings to the peace process? One day he says at a United Nations’ speech that his hand is extended out in peace toward Israel, while having given a speech that morning, in Arabic, to Palestinians in Ramallah calling for their commitment in bringing violence to any and all Jews! In recent years Israel has had several Prime Ministers who have pandered to Arafat and his ever-changing demands and it has only returned the Israelis more terrorism. Finally, there is a Prime Minister in Israel that will stand up to Arafat and his antics, and the world is up in arms. It is up in arms because it can not get beyond the notion that a strong army is “picking on” a weaker adversary. Never mind that this weaker adversary has been given countless opportunities to stop its suicide bombing campaign, abandon its unachievable goal of killing all the Jews, and pursue real peace through the creation of a Palestinian state. Never mind that this weaker adversary primarily targets innocent civilian women, children, and elderly for the most brutal attacks. Never mind that the economic aid, given to them for food and medicine, is used instead to purchase illegal weapons in violation of treaties to which they have pledged adherence. Never mind that they were filmed by television cameras in the streets cheering and celebrating the events of September 11! Mr. D’Amato’s essay could have been something worthy of dissemination had it not contained that ridiculous personal opinion (labeled “Comment”) which stands in sharp contrast to the rest of his seemingly objective research. Unfortunately, rather than lending credence, his “Comment” has only served to cast doubt on the veracity and accuracy of the entire article.
Lou Cala
Raleigh, North Carolina - Thursday April 25, 2002 at 3:47 pm
In response to Lou's cooment. I think that Prof D'Amato's comment is consistent with the comments of many Israeli intelluctuals who can hardly be described as anti-Israel.
As for the Saudi initiative, it proposes to "address" the refugee issue. This does not mean they will be sent back to their lands, but that a reasonable compensation is agreed to.
For an analisys of Barak's offer please check: http://www.gush-shalom.org/generous/generous.html
More importantly the offer does not include any reference to the UN established right of return of Palestinians.
Shibl Mourad
Quebec/Canada - Saturday April 27, 2002 at 4:07 am
Perhaps Jews as Semites should reconsider their claim to the territories, and exmanine the establishment of Jewish communities after Norman conquest. Or even better,re-examine the facts that both Sunny Arabs and Jews are Semites at least according to the written "facts". If is correct that that SEMITE is someone descendend from Shem, the oldest son of Hoah. A HEBREW is someone descended from Herber ( EBER), one of the great-grandsons of Shem. So all Hebrews are Semites, but not all Semites are Hebrews.( Both Sunnite Arabs and Jews are Semites and Hebrews. Six generation after HERBER, ABRAHAM was born to his line, so Abraham was both a Hebrew and a Semite, born of the line of Herber and Shen. Ishmahel was born of Abraham, and Sunnite, Arabs, especially Muslims consider themeselves to be descendants of him, so they are BOTH SEMITES and HEBREWS. Isac was born of Abraham, then Jacob of Isac. Jacob´s name was changed to "Israel", he fathered 12 sons. His sons and descendants are called Israelites. However, this does not make Abraham or Isac "Israelites", those who interchange words "Jew" and Israelite, call Abraham a Jew, yet Abraham was not even an Israelite, the word "Jew" is NOT USED IN THE OLD TESTAMENT, untill 1,000 years AFTER ABRAHAM. One of Jacob-Israel´s children was Judah, (Hebrew - YEHUDAH) His descendants were called YEHUDIM. Perhaps, to be fair and ballanced in debate one must consider the double standard in politics and absolute need for recongnition of ARABS as Semites. Both, Jews and Arabs have legitimate claim on the same land, eventually they would have to share the land on equal basis, regardless or religion. After all, Both are the people of the Book. History and religion, intail rights for both.For Jews could not call others anti Semites, when they practice anti Semitisam. I am not ANTISEMITE, however, both Jews and Arabs are Semites.
Carla Berg
University -
Austria - Sunday April 28, 2002 at 3:57 pm
Carla, it's off topic but serious enough that what you say must be addressed. The term "anti-Semitism" was created as a euphemism meaning "Jew-hater", by self-described Jew-haters, around 1879. The word has nothing to do with "Semitism", just as "inflammable" does not mean the opposite of "flammable". Similarly note that we park on drive-ways and drive on park-ways. Words and terms do not simply mean the sum of their parts. While your analysis of the biblical term of "Semite" rings true (though you should revisit "Yehuda"/"Yehudim"), I'm not sure that anthropoligists would agree with this as a matter of fact. (Furthermore, Arab sources make no mention of Abraham prior to their learning of him from Jews around the time of Mohammed, ~2500 years later.) The modern meaning of "Semitic" describes a LANGUAGE group. Strictly speaking, Jews who are not speakers of Hebrew (or another Semitic language) are not Semitic. Defining people based on obscure language groupings can be fairly tricky. Roughly half of Ethiopians speak a Semitic language -- but the other half does not. Does this make Ethipians Semites? Regardless of such academic questions the etymology and definition of "anti-Semitic" means "anti-Jewish", period.
Leeron Kopelman
Ann Arbor, MI, USA - Monday April 29, 2002 at 11:32 am
Further rsponse to Carla, is her conclusion that since Arabs are semites they have the right to live in Palestine.
It is dangerous and I think immoral to link the right to live in country to relegious or racial characteristics.
Palestinians have the right to live in the land they own because they owned it. They have deeds that prove their ownership, houses that they built, trees they irrigated, etc.
Through acts of history, there is now a new set of poeple who has deeds for the same lands etc.
And here lies the tragedy. Any resolution will involve poeple sacrificing what most of consider our basic human rights.
I think we should all consider our responsability in creating this tragedy in particular the Europeans for driving the jews out (Germany, Austria, France) and abusing the Paletinian rights to fix their problems (UK). The US for banckrolling Israel while allowing it to create settlments etc. And arab countries for aggrevating the situation by unfilfilled promises to the Palestinians and the manipulation of their cause to their personal interest.
Shibl Mourad
Quebec/Canada - Saturday May 04, 2002 at 3:18 am
Professor D'Amato argues that the border proposed by the United Nations 1n 1947 should be regarded as the legal border of Israel. But although General Assembly resolution 181 proposed the partition of the Palestine Mandate, the British chose not to implement this recommendation. Consequently legal title to the entire Mandate was passed to the State of Israel, which came into being at the termination of British rule on May 14,1948. In its Declaration of Independence, Israel pledged that it would assist the United Nations in implementing Resolution 181, and repeated this pledge a few months later, when it was admitted to the United Nations. However, Israel subsequently revoked this pledge, and Resolution 181 was later superceded by Security Council Resolutions 242 and 338. Thus, the sacred guarantees that the Kellogg-Briand Pact invests in international borders cannot be assigned to the 1947 partition plan boundaries, because they never actually existed. The United Nations has no power to create boundaries or borders. They can only be created by treaties by the adjacent countries involved. In 1949, Israel, with the assistance of the United Nations, negotiated Armistice agreements with Egypt, Syria, Lebanon and Jordan. The cease-fire lines agreed to in the Armistice documents roughly co-incided with the military deployments of each country at the time of their signing. However, it is important to note that the Armistice lines came into being through international agreement, not through war. Moreover, although the terms of the Armistice agreements clearly stated that the cease-fire lines were not to be regarded as permanent boundaries, they also contained pledges, from the nations adhering to them, to change the armistice lines only through peaceful negotiations, and not by force. Thus, although they are not formal boundaries, the 1949 Armistice lines have the same sacredness accorded to international frontiers by the Kellogg-Briand Pact. Up until the 1967 war, the Gaza Strip was administered by Egypt on behelf of the All-Palestine Government, which was proclaimed in Gaza on October 1, 1948, and which was recognized by several Arab countries, while The West Bank was federated with Trans-Jordan to form the Hashemite Kingdom of Jordan, and this annexation was recognized by Britain and Pakistan. In the aftermath of the 1967 and 1973 wars, however, Jordan fomally ceded all its claims in the West Bank to the P.L.O. During the period it was annexed to Jordan, residents of the West Bank had full rights as Jordanian citizens, including the right to vote in elections to the Jordanian parliament.
Mike Anderson
Toronto, Canada - Monday May 06, 2002 at 3:33 pm
Mr. Anderson's comment is exceptionally succinct and well-informed. I don't disagree with his facts, only with his legal conclusions--however, they are of pivotal importance. First, 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). Fourth, Mr. Anderson's argument depends on construing an armistice as a peace treaty. But they aren't the same; e.g., the US and Japan entered into an armistice in September 1945, but didn't enter into a peace treaty until September 1951. The reparations and land exchanges were spelled out in the peace treaty of 1951, not in the armistice of 1945. Moreover, to say that an armistice freezes the lines is to say that territory can be obtained by conquest (contrry to Kellogg-Briand) and that any armistice that ends the fighting ratifies the newly gained territory. This argument of course would not only destroy Kellogg-Briand, but would also destroy the value of armistices--i.e., a temporary laying down of arms--and convert all armistices into peace treaties, so that both sides would have to keep fighting until the peace treaty was finalized (and how do you do that, when the situation on the ground is changing?)
Anthony D\'Amato
Northwestern Law School
Illinois, USA - Tuesday May 07, 2002 at 12:25 pm
So, to sup up the argument, the only legal borders in that case are borders that has never existed between one country that came into being and another one that never existed, because the very people for whom it was ment rejected the whole idea. How sad that the world is not running according to lawyers... Of course, all of this could have been very funny, but for the fact that this kind of absurd reasoning is so clearly made to serve a very definite political agenda.
Moshe Achmon
Israel - Tuesday May 07, 2002 at 8:33 pm
Professor D'Amato may assert that the partition line of UN Resolution 181 is an international boundary, but the fact remains that there is nothing in the charter of the United Nations giving that body the legal authority to demarcate international frontiers or to partition trust territories. The text of UN Resolution 181 defines it as a recommendation, not as a legislative act. Israel's initial willingness to agree to set up an international frontier in accordance with the Resolution does not mean that one was actually created there, since by definition an international boundary can only be created by a legal agreement between two adjacent nations. There was never any legal agreement signed both by Israel and any Arab state to demarcate a boundary in accordance with the Resolution. The only legal demarcation of a boundary in the Former Mandate of Palestine occured when Israel and the Arab nations of Egypt, Jordan, Syria and Lebanon signed the Armistice agreements of 1949. The signatories of these agreements bound themselves not to alter the boundary in any way except through a formal treaty of peace. Egypt, Jordan and Lebanon have all signed formal peace treaties with Israel, and all of these treaties demarcate boundaries conforming to the Armistice lines of 1949, not to the Partition lines of 1947. Although the representatives of Palestine were not a party to the Armistice agreements, they have been officially acknowledged by all the Arab states to be the sole legal possesor of all Arab lands within the former Palestine Mandate. The only nation which can be accused of violating the Kellogg-Briand pact is Jordan, which annexed the West Bank in 1950 without the consent of the All-Palestine Government, but which relinquished its claim of annexation in 1988.
Mike Anderson
Toronto, Ontario - Thursday May 09, 2002 at 12:14 am
Moshe Achmon and Mike Anderson do not seem to understand the idea of a trust. 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.
Anthony D\'Amato
Northwestern Law School
Illinois, USA - Thursday May 09, 2002 at 11:36 am
To Anthony D'Amato recent letter. I think I need some clarifications here. As you stress the idea of a trust, let me ask you who was the trustee in this case, and who is it now? You seem to make some error of fact by saying "The line drawn by the British in 1947". The line was not drawn by the British, but suggested by an international commitee of enquiry. In fact, they (the British) opposed the whole division idea and abstained in the 29.11.47 vote. And, of course, there is a difference between a "recommendation" and a "ruling", yet you tried to slip in the notion that is doesn't matter. The second question I would like to ask you is who in your opinion can, or should, be the judge in this case?
Moshe Achmon
Israel - Saturday May 11, 2002 at 3:55 pm
Forgive me, but I am having a lot of difficluty accepting the argument premised on the 1928 Kellogg-Briand pact.The pact doesn't enshrine a freezing of boundaries or prohibit penalizing countries which resort to war. It states that the signatories renounce war (Article I) and that these high contracting parties will resolve conflicts by pacific means (Article II). It's very nice in principle, but it also means that the UN "police action" in Korea, as well as the war to push Iraq out of Kuwait, were also "violations". In fact, K-B is so poorly constructed that even fighting in self-defense by a signatory is technically a violation -- though signatories circumvented this by only accepting the treaty on a conditional basis. (Yet now it is to be applied unconditionally to a non-signatory?)
Encylopedia Britannica concludes that: "The signatories allowed themselves a great variety of qualifications and interpretations, however, so that the pact would not prohibit, for example, wars of self-defense or certain military obligations arising from the League Covenant, the Monroe Doctrine, or postwar treaties of alliance. These conditions, in addition to the treaty's failure to establish a means of enforcement, rendered the agreement completely ineffective." [http://search2.eb.com/nobel/micro/316_95.html]
The Columbia Encyclopeida is more succinct, stating that "The pact never made a meaningful contribution to international order." [http://www.bartleby.com/65/ke/KelloggB.html]
Bernard D. Meltzer, who served as a Nuremberg prosecutor, describes K-B as "an appeal to the conscience of the world" and questions its applicability even with regards to Germany's "crimes against the peace." ["The Nuremberg Trial: A Prosecutor’s Perspective", http://www.law.uchicago.edu/faculty/meltzer/resources/nuremberg_5-12-00_final.doc]
High contracting parties involved in WW II did redraw boundaries. So it does not appear that K-B was effective even at freezing the borders of the signatories. If there is a precedent here, it is that those who are behind aggressive wars may be punished by territorial losses. (In 1948, the Arab states, including the Arabs of Mandate Palestine, were the aggressors who rejected pacific means.)
So I reject the applicability of K-B and doubt that it has any relevance outside of the academic world, let alone being selectively applied to a country that is not a signatory to the 1928 pact (the treaty itself states that it only applies to the signatories. Article I opens with "The High Contracting Parties solemly declare...." In Article II the verb changes to "agree" but the noun is the same).
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.
So what's left? The question whether the UN Partition borders are still relevant. Mike Anderson makes an excellent point noting that both the 1949 Armistice agreements and more recent peace treaties establish internationally recognized boundaries. More importantly, though, there are also treaties that have been made between Israel and the Palestinians: the parties have already agreed to UNSCR 242 (incorporated in the Oslo Accords), so it is only the 1967 disputed areas that remain open to negotiation.. Resolution 242 calls for an Israeli withdrawal from territories taken in the "recent" [1967] conflict, but does not specify the extent of the withdrawal, leaving that to be determined by negotiations.
Morley Harper
Detroit, MI - Monday May 13, 2002 at 12:56 am
The Kellogg-Briand Pact was definitively interpreted at the Nuremberg tribunals to preclude the acquisition of territory by force. Unless you want to repudiate Nuremberg, the Far East Tribunals, and the Eichmann Case, you have to adopt the interpretation of K-B as it has come down to us in international law. 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. As far as UNSCR 242 is concerned, it is only an armistice, not a peace treaty, and it does not purport to change boundaries. And here, too, who represented the Palestinian people? We can blame Israel, and even more we should blame Syria, Iraq, Egypt, Jordan, Lebanon, and the rest of them, but we cannot turn our backs on the Palestinian people.
Anthony D\'Amato
Northwestern Law School
Illiniois, USA - Monday May 13, 2002 at 12:49 pm
It was not just the Arab states who rejected UN Res. 181, but also the Arab Higher Committee -- the representative of the Arabs of Palestine. They were represented.
The creation of an Arab state was not a term of the League of Nations Mandate, it was a recommendation of the UN Resolution that terminated the Mandate. (Similarly the proposed borders were not part of the trust and the violent Arab rejection of the compromise made these borders moot.)
Having quoted a Nuremberg prosecutor who (then as today) questions the applicability of Kellogg-Briand, perhaps you can elucidate on this point. Why are you citing an instance where borders were changed by force to argue that this is prohibited? I don't think I'm the one who has a need to repudiate Nuremberg. K-B forbids wars, not punishment of those who start wars -- including by the modification of borders. (Nor did you address why K-B applies to non-signatories when the signatories themselves stipulated only conditional acceptance.)
We may have to agree to disagree on the above, but the main point of my argument concerned UNSCR 242 and the Oslo agreements: If you insist that the trust still exists, I would argue that 242 supercedes 181 and is a modification of the borders -- as legitimate as the 1947 partition. More importantly, UNSCR 242 is not an armistice, it is a UN Resolution -- that is included as the basis of the Oslo Accords (a treaty) accepted by the Palestinian Arab leadership!
Morley Harper
Detroit, Michigan - Monday May 20, 2002 at 12:47 pm
Prof. D'Amato wrote in his article that after the partition plan of 1947, "the Palestinians ... did not seriously entertain the idea of a State of Palestine for almost another forty years". Yet he later wrote: "Israel has no right to encroach upon the state-in-formation." Starting from 1947, the "almost another forty years" brings us to "almost" 1987. It would be the height of legal fiction to say that there was a state-in-formation in the meantime. Whatever the legal force of the 1947 partition plan (and I think it has none), it is safe to say that it is too weak to provide the basis for defining where normal exercise of sovereignty stop and acquisition of territory begins. You have to weigh the partition plan with the unwillingness of the Palestinian people to form a state. (He himself makes a point of the "self" in "self-determination".) Another curious inconsistency in Prof. D'Amato's answers baffles me too. In his article he writes: "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." Yet in his answers he writes: "Neither Israel nor Palestine has ever been declared by any competent international tribunal to have engaged in a war of aggression against one another." In my logic, that would mean that the Kellogg-Briand Pact doesn't apply (provided that a declaration by a court is so crucial as he suggests). Yet Prof. D'Amato's conclusion is that the Kellogg-Briand Pact applies with all the more force: "So under the Kellogg-Briand Pact no territory can be taken from one side by another by virtue of any armed conflict between them." And why was there no such court ruling? Perhaps because no court was willing to take a chance on the 1947 partition plan (or any partition plan for that matter)? If so, has the former mandate been partitioned in the first place?
Jari Nousiainen
Finland - Wednesday May 29, 2002 at 10:54 am
Ran across an interesting article in the NY Post archives (2 Jan 1949): You cannot wage a war with an insurance policy in your pocket. You cannot invade a country and shell its cities, and then, when you are thrown back and beaten, declare that the war was a trial on your part and now you would like to have all the advantages of a compromise that you rejected and violated by arms. That of course is an opinion, but this strikes me as consistent with the principle of K-B; if the aggressor is not punished but can fall back to the status quo ante without penalty, there is no deterrent to opt for war. Another interesting paragraph indicates that following the 1948 war, even and already then the UN did not fall back to the borders proposed in 1947: By rejecting the partition resolution of Nov. 29, 1947, the General Assembly of the United Nations at Paris destroyed the document that served as an insurance policy for the Arabs when they declared war on Israel.
Morley Harper
Detroit, Michigan - Thursday May 30, 2002 at 1:36 am
While 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, the legal situation is clouded by the fact that there were actually two rival Palestinian states proclimed in 1948. The Gaza Convention of October 1 of that year proclaimed a Palestinian republic with jurisdiction over the entire Former Mandate, headed by the pro-Nazi Mufti Haj Amin, and was recognized by most of the Arab nations. The "Arab State" defined in UN Resolution 181 came into existence on December 1, 1948 and was proclaimed by a convention of Palestinian mayors and notables at a national convention in Jericho. The Jericho convention declared King Abdallah of Trans-Jordan to be king of the Arab parts of Palestine and called for a union of the two states. Trans-Jordan was the only Arab nation which did not recognize the Mufti's government, and its parliament ratified the merger of the combined territories on December 13, 1948, to create a new nation, the Hashemite Kingdom of Jordan. The legality of this union was upheld by the fact that Jordan subsequently gave the residents of the West Bank full citizenship and the right to vote in elections to its parliament. The Israeli-Jordanian armistice accords of April 3, 1949 were, therfore, a legal boundary agreement between the "Arab state" and the "Jewish state" defined in UN Resolution 181, and there was nothing in the text of the armistice agreement forbiding annexation. The Palestine Liberation Organization came into existence in 1964 as the legal succesor to the regime that had been created in Gaza. In July of 1988, Jordan formally ceded the West Bank to the PLO. Four months later, at a convention in Algiers, the PLO proclaimed an independent Palestinian state consisting of the West Bank and the Gaza Strip, and at the same time declared it would accept UN Resolutions 181, 242 and 338. The legality of this act was upheld by the results of elctions held in the West Bank and Gaza in 1996. And certainly Mr. Harper is quite correct in his assertion that the incorporation of resolutions 242 and 338 into the text of the Oslo accords can leave little doubt that the 1949 armitice demarcation line is the legitimate international boundary.
Mike Anderson
Toronto, Canada - Thursday May 30, 2002 at 4:00 am
It may be true that the armistice accord doesn't prohibit annexation, but the map in Resolution 181 in itself bears out clearly enough that the "Arab state" is a separate entity from Transjordan. Besides, resolution speaks of "an" Arab state, whereas you admit that there were two. Curiously, when the one Palestinian state was declared, it declared it would accept this same resolution 181. So was resolution 181 somehow "suspended" in the meantime? What clouds this issue is not the existence of two rival Palestinian states, but the Kellogg-Briand Pact. Maybe it has been overemphasized above, but in all fairness, the second consideration of resolution 242 emphasizes "the inadmissibility of the acquisition of territory by war". Weren't the two Palestinian states territorial acquisitions by war? The annexation by Jordan is a case in point. Maybe the annexation wasn't prohibited in the armistice agreement, but it was still an armistice agreement, in other words an "acquisition of territory by war". The same applies to the Gaza Convention of October 1, 1948. The difference is that the Palestinian republic openly claimed jurisdiction over the entire Former Mandate, which was the avowed purpose of the Arab offensive. The Palestinians supposedly abandoned this policy when resolution 181 was brought back from life. This was done after some basic principles had been broken, which were reconfirmed in resolution 242, which the Palestinians declared to accept. At last the Palestinians saw that the partition plan was the best deal they could get. That was in 1988! Was the offer still valid? I think Israel should have a say in this matter. I don't think the Palestinians can appeal unilaterally to resolutions 181 and 242 after the Palestinian state had come into existence thanks to the patent violations of these same resolutions.
Jari
Nousiainen
Finland - Sunday June 02, 2002 at 1:41 am
If it were only as simple as either resolution 181 or 242 then there might be some hope. The reality on the ground is a great deal more complicated. If one looks at the maps of the Palestinian areas established by interim agreements in December of 2000 (http://www.iris.org.il/oslo_2000.htm) one gets a rather clear idea of why the Palestinians may not be entirely happy with what the Israelis are willing to concede as Palestinian territory. That and the fact that Israelis, and the government of Israel in particular continue to refer to the West Bank as Judea and Samaria (see http://www.mfa.gov.il/mfa/go.asp?MFAH0hbb0). If one were to accept the proposition that there is some right of ownership of the land of Israel based on the granting of that right to Abraham and then again Moses by God, then one must surely admit that God, on more than one occasion, has been willing to see that right taken away. In fact, there has not been an independent Jewish state in the region since 63 BCE. Of course the history of the land of Caanan is filled with conquest and loss, not insignificantly beginning with the 12 tribes conquest of the Caananites. Remember that the Assyrians, Babylonians, Persians, Romans, Arabs, Crusaders, Mamluks and Ottomans weren't the only foreign invaders of this land. Remeber Abraham was originally from Ur of the Chaldees and Joshua led his invading force out of the wilderness, having spent forty years getting there from Egypt.
David Parsons
Houston, Texas, USA - Monday June 03, 2002 at 2:57 am
It is not true that there hasn't been a Jewish state in the region since 63 BCE. There has been one since 1948. And it is inappropriate to describe the Israelis as religious fanatics, when the Palestinians are such no less, including their leader Arafat, who says he only wants to be a martyr.
Jari Nousiainen
Finland - Wednesday June 05, 2002 at 8:04 pm
In truth, there is only one Palestinian state, not two. However for over 40 years that state acted illegally by refusing to accept the UN partition plan and by refusing to acknowledge Israel's right to exist. In doing so, the Palestinian leadership abdicated their legal right to act as the "Arab State" of Resolution 181, creating a legal void. The Kingdom of Jordan rushed in to fill this legal void by acting as the trustee of the Palestinian Arabs and federating their territories and population with her own, until such time as the Palestinian state was prepared to fufill its obligation under the UN partition plan. Jordan aquired its trusteeship, not through illegal military conquest and unilateral annexation, but rather through a lawful process of meetings of congresses of Palestinian representatives, and through parliamentary elections in which Palestinians and Jordanians participated on an equal footing. There has always been a lawful Arab State in accordance with UN Resolution 181. From 1948 to 1988 this state was Jordan, and from 1988 on it was the PLO (or Palestinian Authority). In 1949, and again in 1993, Israel and the lawful reperesentative of the Palestinian Arabs signed a binding legal agreement deliniating the borders between them (i.e. the 1949 Armistice Lines). There has never been an "expiry date" on Resolution 181, and a binding legal agreement between two nations becomes no less legitimate if it is part of an effort to lessen or end hostilities between waring parties or states.
Mike Anderson
Toronto, Canada - Wednesday June 05, 2002 at 11:07 pm
Having just reviewed the language of the Kellog Briand Pact of 1928: http://www.yale.edu/lawweb/avalon/kbpact/kbpact.htm 1. There is no clause "abolishing forever the idea of acquisition of territory by military conquest." This is a derivative interpretation of the renunciation of the resort to war. There is no specific language enumerating the penalties for violating the pact. On the contrary, precedence was set for the specific penalty of loss of territory in the case of Germany. 2. This international instrument specifically refers to its applciation to the high contracting parties only. Germany as a high contracting party was subject to the repercussions of violating the pact in 1939. NONE of the Arab states including the Arab Higher Committee that attacked Israel following her declaration of independence were or are high contracting parties to the provisions of this treaty. Nor is the applicability of the pact to non-contracting parties a prerogative taken unto themselves by the signatories to the treaty. The treaty cannot be applied to parties that are not signatories either at the time or today, nor does the actual language of the treaty preclude penalties of territorial loss for agression as was applied to Germany following the end of WWII. The protections accorded by this treaty cannot be applied to the aggression carried out by the surrounding Arab state including the leadership of the Arab Higher Committee. And to claim that the attacks against Israel in 1948 were not "adjudicated" as an aggression is a farce.
T. Libnan
USA - Thursday June 06, 2002 at 8:34 am
I agree with you. Introducing the Kellogg-Briand Pact to this discussion at all was a non-starter. It is just funny that this is conceded now that the Pact is turned against the Arabs. Now that you mention it, neither is Israel one of the signatories. As to 181, yes maybe the resolution has no expiry date, but then again, plans seldom have, and this one is clearly called a "partition plan". It is a plan, but if one wants to attribute any legal effect to it, as is done here, one would certainly be willing to concede that it is as good a basis for creating a state as any other. And to go a little further back, the problem that clouded the issue was earlier that there were two Arab state, and now the problem that clouds the issue is that there weren't: there was supposedly only one. Or two? To argue that Jordan acquired Palestine as a trusteeship is something that the history of the UN doesn't record. And of course, everybody knows that Jordan's business in Palestine was not to acquire trusteeship but to push the Jews to the sea. And to go even further back, does the original British plan, which is supposedly of primary application here, stipulate that the Arab state would form part of Trans-Jordania? Once things get this convoluted, one had better stick to the old rule of "uti possidetis", according to which the old administrative borders are inherited by the new state, and the Palestine - Transjordania border is such a border. It sounds contrived that there was no military conquest, as soon as it is suggested that the military conquest comes from the Arab side. Why was the agreement of 1949 called "armistice"? Did Israel open the hostilities perhaps? And if it was no military acquisition, why argue that Kellogg-Briand Pact doesn't say anything of acquisition of territory by war, or better yet, doesn't apply to Arab states at all? Be that as it may, Resolution 242 states that acquisition of territory by war is not allowed. Of course, this is derived from the general prohibition of the use of force enshrined in the UN Charter. Does this make the principle less relevant when applied to the Arab state? Resolution 242 points the finger at Israel, but it is generally accepted that the prohibition of acquisition of territory is derived from the GENERAL prohibition of the use of force. Saying the Jordan only wanted to ensure a peaceful trusteeship is like saying that, as soon as I get caught, I didn't want to steal somebody's bike but only wanted to take care of it while the owner was away. That is called an excuse, and a poor one at that. Another trendy term is a "farce".
Jari Nousiainen
Finland - Thursday June 06, 2002 at 10:31 am
My reference to the Kellog-Briand pact of 1928 is in response to Mr. D'Amato's contention that this treaty, primarily among European powers, creates a universal principle of law applicable to the Arabs which precludes the loss of territory by the Arabs after initiating aggression. There is no language in the pact which supports this contention, and specific actions taken in response to the violation of that convention by Germany supports the opposite maxim. Mr. D'Amato depends on this interpretation in his rejection of the legitimate establishment of Israeli sovereignty over territories held at the end of hostilities initiated by the Arabs in 1948. The Kellog-Briand pact contains no universal principle protecting Arab states including the Arab Higher Committee representing the Palestinian Arabs from loss of territories proposed for Arab sovereignty when the Arabs rejected the proposal and initiated a war of aggression against the recognized sovereign independent state established by the Palestinian Jews. And even if the Kellog-Brian pact did create such a principle for its signatories, it cannot be applied to non-signatories. And this is regardless of the weak contention that the 1947 UN recommendation created a legitimate boundary when Great Britain neither drafted the resolution or voted in favor of it, nor had a right to impose a division under the terms of its Mandate.
T. Libnan
USA - Friday June 07, 2002 at 1:56 pm
I've heard nothing of the international peace conference idea since its first mention in the media. If Israel and Palestine are still at each other's throats, the great powers (and UN) should simply mandate/dictate the border/solution ... and Yahweh/Allah help the fools who violate it. This has gone on long enough.
Lou Coatney
Illinois USA - Friday June 07, 2002 at 8:38 pm
While I may not agree with some of the points raised, I thoroughly enjoyed reading Professor D’Amato’s essay that started this form and the additional insight offered by many afterwards. I do not purport by any means to be an expert in international law nor do I have the benefit of instruction in jurisprudence (yet). Nonetheless, I tend to agree with the core of Professor D’Amato’s argument and would like to make the following comments for the sake of discussion: 1. The question of applicability of the Kellog-Briand Peace Pact of 1928 (the “Pact”) to the actions of Israel post-1947 does not depend on whether or not Israel was a signatory to the Pact. The applicability of the Pact depends on (a) whether Great Britain, as the Mandatory Power appointed by the League of Nations, had the power under its mandate to enter into international agreements on behalf of Mandate Palestine and (b) whether or not Great Britain ratified the Pact on behalf of Mandatory Palestine. In United Nations (“UN”) General Assembly Resolution (“GAR”) 181, the UN made it clear (§3, Section 2) that any international agreements entered into on behalf of Mandatory Palestine will apply to the new Jewish and Arab states. Outside of this instant, I would find difficult to accept that Israel would be bound by the Pact for the reasons already mentioned by others above; 2. Whether or not Great Britain voted for or even accepted the UN GAR 181 is not a material issue in the discussion of applicability of the resolution. As Professor D’Amato correctly pointed out, Mandate Palestine was a trust and Great Britain a trustee. The trust was formed by and the power of the trustee emanated from the authority of the League of Nations. If the trustee ceases to carry out its duty as a trustee, the trust does not automatically dissolve. Only through an action of the League of Nations, which formed the trust to begin with, can the trust be dissolved. Alternatively, if the League of Nations conferred the power to dissolve the trust to Great Britain, as Mandatory Power, it could have dissolved the trust. However, the League of Nations conferred no such power to Great Britain; 3. UN GAR 181 is clear in Part I, Section A, subsection 4, in that the period between adoption of the resolution and the establishment of Jewish AND Arab states is to be defined as a transitional period. There does not seem to be any limitation in the resolution on the length of this transitional period. From a legal prospective, Mandatory Palestine is still in this transitional period; 4. The resolution also states that Provisional Councils of both Jewish and Arab states were to be formed. If said councils were not formed, the UN Commission established by the resolution was to report this fact to the Security Council of the UN for further action. To my knowledge, the Security Council did not act on the fact that Provisional Council of the Arab state was never formed. Nonetheless, the remaining provisions of the resolution are still technically valid and enforceable; 5. While Arab reaction to the UN GAR 181 may be radical, unfortunate, and misguided, such reaction does not, by itself, invalidate the resolution or its applicability as the guiding international law in the situation. It is important to note that should the results of the conflicts in 1948, 1956, 1967, and 1973 were different in that Arab armies had made territorial gains within Israel, UN GAR 181 would still be equally applicable and would require the Arabs to adhere to its provisions; 6. The issue of annexation of the West Bank by Trans-Jordan in 1949 is irrelevant to the main point Professor D’Amato is trying to make. Nonetheless, for the record, it is my view that this action was illegal under international law irrespective of the treatment of Palestinians in the area; and 7. As for the issue of UN Security Council Resolution (“UN SCR”) 242, it does nothing to diminish the applicability of UN GAR 181 in my opinion. The relevant provision of the resolution is “… that the fulfillment of Charter principles requires the establishment of a just and lasting peace in the Middle East which should include the application of both the following principles: (i) Withdrawal of Israel armed forces from territories occupied in the recent conflict…”. The resolution calls for the establishment of a just and lasting peace WHICH SHOULD INCLUDE the withdrawal of Israeli forces from territories occupied in the 1967 war. It does not say that the peace should be LIMITED TO the withdrawal nor does it say that the resolution supercedes any other on the subject. I submit that UN SCR 242 cannot reasonably be used to justify annexation of territorial gains made by Israel in 1948 or to diminish the enforceability of UN GAR 181. In conclusion, I agree with Professor D’Amato’s contention that Palestinian acceptance of the pre-1967 borders as the basis for peace with Israel is a tremendous advantage to Israel from a legal prospective.
Sameh Mobarek
Chicago, Illinois, USA - Saturday June 08, 2002 at 4:45 am
The Kellogg-Briand Pact was the source of the rule of international law finally abolishing the acquisition of territory by force. But the rule itself is now part of customary international law as found by the Nuremberg and Far-East tribunals and indeed as reiterated in Resolution 242. Jari Nousiainen and Sameh Mobarek have contributed good arguments on this issue. What perhaps deserves underlining is the fact that the beneficiaries under a Mandate are the ones whose interests must be taken into account in an objective manner (when trusts first began, it was the Chancery courts in England that were the ultimate supervising authority over trustees, grantors, and trust instruments). Thus, some of the contributors to this discussion who have focused on the Arab leaders, or the Jordanians, or other players in the Mid-East wars since 1948, are overlooking the interests of the Palestinian people which, in my view, have never been accorded any weight in these political and military machinations. As the beneficiaries of the Palestine Mandate, they are not necessarily bound by the capricious decisions of various gangs and dictators who have foisted themselves upon the Palestinian people. As human rights within international law becomes increasingly prominent, the various statist machinations that have ignored the human rights of the Palestinian people look increasingly anachronistic if not foolish. The Mandates system of the League of Nations was a sea change in human rights as early as 1919, and the successful decolonization supervised by the UN Trusteeship Council (the equivalent of the Mandates system) stands with it as two of the most humane political accomplishments of the twentieth century. Hopefully, attention to UN GAR 181 as an exercise of mandatory powers will carry with it a greater focus upon the individual human rights of all the people living in Palestine-- Jews, Christians, and Arabs.
Anthony D\'Amato
Northwestern Law School
Chicago, Illinois, USA - Saturday June 08, 2002 at 8:22 am
Jordan's annexation of the West Bank can hardly be regarded as being illegal. That the annexation was legal under the terms of UN Resolution 181 is attested to by the fact that the man who first proposed it was none other than the official UN mediator, Count Fokke Bernadotte. There were no less than eight free and fair elections conducted in the West Bank between 1949 and 1967, in which candidates and parties favoring annexation won clear majorities of the vote. The former mandating power, Great Britain officially recognized Jordan's annexation of the West Bank as being legal. Israel informally recognized the legality of the annexation by signing the Israeli-Jordanian armistice treaty of 1949. The Arab League officially designated Jordan as the "Trustee of Palestine" in 1951. The PLO showed recognition of the annexation as being valid by the fact that they officially declared independence in Algiers in November of 1988 after Jordan formally ceded the West Bank to them in July of that year. Nowhere in UN Resolution 242 is ther any call for Jordan to relinquish her claim to the West Bank, nor is there any call for Israel to withdraw further than the 1949 Armistice Line. The Resolution defines areas which changed hands in "recent conflict" as being "territories occupied" by Israel, and does not specify the extent of Israeli withdrawal from them.
Mike Anderson
Toronto, Canada - Saturday June 08, 2002 at 4:41 pm
I respectfully disagree with Mr. Anderson’s interpretation of UN SCR 242. The scope of the resolution dealt with the Israeli occupation in 1967 of land that would have otherwise been part of a Palestinian state, as defined in UN GAR 181. While there was no call in UN SCR 242 for Israel to respect the mandates of UN GAR 181, there was no mentioned of (a) a repeal of said mandates, (b) amendments to said mandates, or (c) even language to the effect that UN SCR 242 should be the only authority with the regard to the issues in question. Without such explicit language, UN GAR 181 should be regarded as valid and applicable. It is not incumbent upon the Security Council to confirm the validity and applicability of a resolution properly approved by the General Assembly when dealing with a tangential issue. It would be necessary for them to explicitly repeal the mandates of UN GAR 181 if it was their intentions to do so. Furthermore, if it was their intention to repeal UN GAR 181, the question of whether or not they had the authority to do so must be addressed before accepting their action. The answer to this question is beyond my understanding of the UN Charter, and I would request that others with broader knowledge to opine on the subject. As to the issue of annexation of the West Bank by Jordan, I still maintain that it is not germane to our discussion of the validity of UN GAR 181. Nonetheless, to address the points that Mr. Anderson raised, I offer the following: 1. As Professor D’Amato pointed out before, an armistice is not a peace treaty, and only to the extent that the terms of an armistice are included in a peace treaty does it become akin to international law between the signatories. 2. Without regard to the opposing points-of-view that Mr. Anderson and I have on the subject of the legality of Jordan’s annexation of the West Bank, it is clear that when Jordan signed the armistice with Israel in 1949, Palestinians were not represented in any way, shape, or form in the Jordanian government. Hence, irrespective of Israel’s agreement, the argument that Palestinians consented to the armistice line seems moot. 3. At the time of Jordan’s annexation of the West Bank, members of the Palestinian population who were to become residents of the Arab state under UN GAR 181 were scattered in Jordan, the West Bank, Gaza, Syria, Lebanon, Kuwait, Iraq, Egypt, Qatar, Libya, and Algeria after the 1948 war. If the decision to cede control of the West Bank to Jordan were legitimate as representing the will of the Palestinian people, a vote involving all Palestinians that would have otherwise enjoyed residence in the West Bank would be called for. Furthermore, as history recorded, the reality on the ground was that the Jordanian army was the only force standing in the way of the Israeli army’s occupation of the West Bank. Faced with the choice of accepting the annexation of the West Bank by Jordan or Israel, it seems logical what choice the Palestinians in the West Bank would gravitate towards. Nonetheless, this has little bearing on the legality of the annexation itself. 4. Again, as history records, the first time the Palestinians had the opportunity to organize themselves and hold effective political meetings (which was in May, 1964), they asserted their independence and, without dealing with the issue of their sovereignty over the West Bank and Gaza at that time, they asserted their political, economic, and social influence over the territories. Egypt and Jordan were represented in those meetings and were supportive of the declarations made. 5. The Arab League’s award of trusteeship of the West Bank to Jordan does not, in my opinion, have any basis in international law. The Arab League did not have jurisdiction over Mandate Palestine or any portion thereof. Granted that Palestinians could have given the Arab League this authority, but, as I discussed in items 3 and 4 above, it would be difficult to make the argument that Palestinians were properly represented in any forum pre-1964. 6. If my memory of history serves me right, King Abdulla I of Jordan had the aim to establish a kingdom in the area. Until the 1920s, members of the Hashemite family ruled over present day Iraq (their rule continued until the royal family was assassinated in 1958), Syria, Jordan, and Saudi Arabia. In the 1920s, they lost Syria to the French and the Arabian Peninsula to Abdulla bin Saud (who later established Saudi Arabia with Al-Saud as the ruling family). After Abdulla’s annexation of the West Bank, he declared the establishment of the Hashemite Kingdom of Jordan. I think some of the history speaks to the issue of Jordan’s motives. 7. The declaration of independence by the PLO followed the requirements set forth by the UN in UN GAR 181 (reference the preamble to Part I, subsection C). In addition, the declaration of independence, by itself, said nothing about the PLO’s view of Jordan’s annexation of the West Bank. We can continue the mental sparring over the legality of historical action and the assertion of sovereign control over land in the area. However, this forum started by making the assertion that the Palestinian acceptance of pre-1967 border was beneficial for Israel. Professor D’Amato never made the assertion, at least not that I have noticed, that returning to pre-1948 borders, whether legal or not, is a practical possibility. Ultimately, again as Professor D’Amato pointed out, the issue of the humane treatment of Palestinians has to come into play at some point. The objective here is to bring about a lasting solution. If history teaches us anything, it teaches us the fact that the struggle for freedom and independence will continue for as long as necessary to achieve the objective. However, as the struggle continues, the level of desperation increases turning what would otherwise be peaceful people to barbaric and violent ways. One would only have to look as far as the history of the establishment of Israel to see an example. In the end, the Palestinians will not go away. Their right for a homeland is as justified as the right of Israelis to their country. Granted that there are many more details still to be negotiated in a final peace, I view Professor D’Amato’s point in his original essay as a way of showing that Israelis stand to benefit from peace on the initial terms offered by the Palestinians, if peace itself is not sufficient benefit.
Sameh Mobarek
Chicago, Illinois, USA - Saturday June 08, 2002 at 6:58 pm
Upon reviewing the comments that I submitted above, it occurred to me that I have been taking for granted that resolutions properly passed by either the General Assembly or the Security Council should be considered as international law. While I do not have any academic grounds to point to as the basis for my assumption, I have always been under the impression that by ratifying the UN Charter, the member states agreed to follow resolutions that were properly passed by either body of the UN as they would Customary Law. After reading some of Professor D’Amato’s articles and others on the subject, I am led to wonder about the basis or strength of UN resolutions all together. In an article titled “Israel’s Air Strike against the Osiraq Reactor: A Retrospective” (10 Temple International and Comparative Law Journal 259 (1996)), Professor D’Amato argued that the Security Council is not a world legislative body and, therefore, is not empowered to create international law. Professor D’Amato further argued that the Security Council resolutions are merely the expression of opinion of its members, and, therefore, are “not constitutive of international norms”. A question to Professor D’Amato is: can it be inferred from that that General Assembly resolutions carry about the same weight? If so, then what weight in international law parlance does UN GAR 181, UN SCR 242, or any other UN resolution for that matter carry?
Sameh Mobarek
Chicago, Illinois, USA - Saturday June 08, 2002 at 9:34 pm
It has been suggested here that General Assembly Resolution 181 established "inviolate" international boundaries. But as has been previously conceded by Mr. D'Amato, the UN has no such power to establish such boundaries, and any contention that they were in fact created rests solely on the authority of Great Britain in its capacity as Mandate Authority having supported the GA resolution. Yet Great Britain did not in fact concede to this division. Great Britain had no involvement in recommending specific borders, and Great Britain abstained on the UN vote to recommend specific borders. The fact that Great Britain had suggested an undefined division of the Mandate territory among its inhabitants does not lend credence to the validity of the specific lines recommended by the UN and rejected by the Arab representatives within the Mandate territory through aggression and war. ---------------------------------------------------------------- Further, it is not established that Great Britain had authority to impose upon the beneficiaries of the trust a division of territory. There is no provision within the language of the Mandate to impose such a division with the exception of the area east of the Jordan under Article 25. Even in this case, Great Britain's actions in removing the Transjordanian portion of the Mandate from the obligations of Articles 15, 16, and 18 was not properly ratified by the League of Nations as required, and thus the legitimacy of the action is suspect. ---------------------------------------------------------------- And if the Mandate created a trust as suggested here, the primary beneficiary according to the language of that trust was the Jewish people, the original inhabitants of the land in the unique historical situation of separation from their homeland as a result of the Exile. As noted in the preamble of the Mandate, "recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country." The members of the League of Nations did not create the rights of the Jewish people, but rather recognized a pre-existing right, that had been expressed by the 2,000-year-old quest of the Jewish people to re-establish their homeland. ---------------------------------------------------------------- Any division of the territory of the Mandate into more than one nation-state is ultimately a decision to be made by the inhabitants of the territory in question and the named beneficiaries of the trust, whether they reside in that territory at present or not. An imposed division is not the prerogative of any outside power including the former Mandate authority or the UN. Upon the termination of the Mandate, the Jewish representatives and subsequent sovereign Israeli government consistently adhered to the general principles of international law in attempting to reach an agreement with the Arab inhabitants of the Mandate territory to establish mutually acceptable borders dividing the territory between Arab and Jewish regions through peaceful negotiations. The Arab representatives with the help of surrounding Arab members of the UN violated the UN Charter in attempting to impose a solution by aggression and war. By their rejection of the UN recommendation and the initiation of aggressive war, the Arabs rendered any suggestion contained in UN GAR 181 irrelevant. Any future division of former territories of the Mandate cannot be made without the agreement of the government of Israel, which is the established representative of the beneficiaries of the now terminated trust. ---------------------------------------------------------------- Far from being an establishment of "inviolate" international borders, UN GAR 181 is nothing more than a recommendation to the inhabitants of the former Mandate territories of one alternative resolution of their disagreements on the future political institutions within the boundaries of the former Mandate. The last international legal allocation of territory that includes what is today the West Bank and Gaza Strip occurred with the 1922 League of Nations Mandate for Palestine. The primary beneficiary of that allocation was the Jewish Nation. Nothing has transpired since that abrogates the rights accorded under that Mandate for Jews to live anywhere within the former territory. And any division of that territory remains a matter for negotiation among the inhabitants of the territory. This is precisely the basis on which Israel and the PLO signed the Oslo agreements as an instrument to establish a framework for those negotiations. The current terrorist war being waged by the PLO is in direct contravention of these international agreements they signed, and constitutes an act of aggression against the Sovereign State of Israel. ---------------------------------------------------------------- Instead of finding it remarkable that Israel finds the old 1949 armistice line inconsistent with the principle of secure and recognized boundaries expounded in UN SCR 242, what is remarkable the rejection by the Palestinian Authority of a proposal granting them 95% of the territories still under dispute. And what is remarkable is the choice of the
T. Libnan
USA - Saturday June 08, 2002 at 9:35 pm
Mr. Mobarek raises some important issues regarding the applicability of the Kellog-Briand Pact to future sovereign authorities established in the former Mandate territories. However, the Mandate was not a part of the British Empire but under separate legal status as a territory over which Britain Palestine Mandate does not contain language that confers upon Great Britain unlimited right to enter into international agreements on behalf of the Mandate. The issue of the right to enable international agreements applicable to the Mandate is specifically referenced in Article 19, which only confers an obligation to "any general international conventions already existing, or which may be concluded hereafter with the approval of the League of Nations." In signing the 1928 Pact of Paris, the representative of Great Britain only spoke "for Great Britain and Northern Ireland, and all parts of the British Empire which are not separate Members of the League of Nations." The Palestine exercised the limited authority granted by the League of Nations Mandate. Therefore it cannot be said that Great Britain's acceptance of the terms of the Kellog-Briand Pact automatically confers on any future authority within the Mandate territory the obligations of Great Britain's signature on the Kellog Briand Pact. ---------------------------------------------------------------- Regardless of applicability to the State of Israel, the only current sovereign authority within the former Mandate territory, nothing other than simple assertions have been provided to support the contention that the Pact of Paris creates an immunity from loss of territory for those that violate its principles. The treaty contains no language to that effect. In fact, it enumerates no specific provisions for penalties for violation, much less exempts loss of territory as a consequence of resort to aggression. Reference has been made to indictments of signatories to the pact under the Nuremburg and Far East Tribunals. Yet the consequence for breach of the principles of the Kellog-Briand Pact (among other international agreements) by the signatories charged under those Tribunals included loss of territory. In the case of Germany, violation of the pact also resulted in the expulsion of millions of nationals from the lost territories as well as the territories of the victims of German violation of the pact. If a principle of application has been established, it is precisely contrary to the assertion that has been made. The only application of the provisions of the treaty to a violation by a signatory established loss of territory as a consequence for violation. ---------------------------------------------------------------- Nor does the Pact of Paris attempt to abolish the institution of war as such, as it is still clearly legally permissible in self-defense even against another signatory. The treaty also did not abolish resort to war between a party to the agreement and a country not a party to the agreement. No violation of the treaty was deemed to have occurred in the 1933 Chaco War between Paraguay and Bolivia, which was not a signatory. There is no instance where the Kellog-Briand Pact established any such application of its provisions in practice. ---------------------------------------------------------------- Further, the states that signed the pact denied validity to the doctrine of "outlawing war" by their subsequent actions. Armed conflicts were both more numerous and more serious following the pact than in the years after World War I preceeding its signing. With the exception of Germany and Japan, no penalties have ever been implemented against any nation for violation of its provisions. When particular treaty rules contrary to established norms cease to be effective, as were the principles of the Pact of Paris, practice immediately reverts to the traditional international norms of neutrality and of warfare, which includes the principle of loss of territory as a consequence of initiating aggressive war. The Kellog-Briand Pact at best represents nothing more than moral preachment, despite the trappings of a treaty surrounding the document. And as demonstrated by the consequences of violation by Germany and Japan, it certainly does not create a universal principle of immunity from loss of territory for initiators of aggression as has been asserted in this discussion.
T. Libnan
USA - Sunday June 09, 2002 at 12:32 am
My apologies for the typographical errors in the first paragraph of the above post. On the issue of Great Britain's rights to impose international obligations on any future sovereign power in the Mandaate, the first paragragh should read as follows: The Palestine Mandate does not contain language that conferred upon Great Britain unlimited right to enter into international agreements on behalf of the Mandate. The issue of the right to enable international agreements applicable to the Mandate is specifically referenced in Article 19, which only confers an obligation to "any general international conventions already existing, or which may be concluded hereafter with the approval of the League of Nations." In signing the 1928 Pact of Paris, the representative of Great Britain only spoke "for Great Britain and Northern Ireland, and all parts of the British Empire which are not separate Members of the League of Nations." However, the Mandate was not a part of the British Empire but under separate legal status as a territory over which Britain exercised only the limited authority granted by the League of Nations Mandate. Therefore it cannot be said that Great Britain's acceptance of the terms of the Pact of Paris automatically confers on any future authority within the Mandate territory the obligations of Great Britain's signature on the Kellog Briand Pact.
T. Libnan
USA - Sunday June 09, 2002 at 6:35 am
Sameh Mobarek asks about the legal effect of UN resolutions. The answers are quite straight-forward. (1) General Assembly "resolutions" have no legal effect (if they did, the General Assembly would be a world legislature). Caveat: Sometimes a resolution, such as the GA Resolution on Genocide, is an expression of international consensus (see my essay "On Consensus" in the Canadian Year Book of International Law way back in 1970). (2) Security Council "resolutions" have legal consequences only when the SC is acting within the scope of its powers under Chapters 6 and 7 of the UN Charter. For example, the restrictions placed upon Iraq as a consequence of ending the Persian Gulf War are totally within the SC's powers to take measures when there is a threat to the peace, breach of the peace, or act of aggression. (3) What about GAOR 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). Great Britain obviously had a hand in drafting this proposal, and though it later backed out for political reasons and abstained from voting, it is clear that it acquiesced in the GA's finding. It is this finding in 1947 by the GA that constituted, in my opinion, the most recent legal word on the boundary between Israel and Palestine. Everything else that happened was military and political, and not legally determinative. As far as SCOR 242 is concerned, not only can't it override a finding by the General Assembly as to the scope of a Mandate, but also it is limited by the fact that the UN Charter does not give the SC any power to change international boundaries. By the way, it's interesting that if you go back to the creation of the Mandate after World War I, as T. Libnan does [I thought contributors here had to give their full name, city, and state], you'll find that the universally accepted practice was that Jewish immigrants to Palestine were welcome there so long as they purchased the real estate that they wanted to settle on. There was never any talk of ousting any person--Arab, Jew, or Christian--from his own land in Palestine. There was no talk of who had a historical right to the land. The question of "whose land is it?" would only have been answered, in those days, as "whoever owns it, of course." All the events concerned with ousting people from their own homes and taking over land by military force have occurred subsequent to the partition of 1947.
Anthony D\'Amato
Northwestern Law School
Chicago, Illinois, USA - Sunday June 09, 2002 at 12:01 pm
I appreciate the admittance that contrary to previous assertions at the core of the contention that UN GAR 181 established "inviolate" borders, Great Britain did not in fact vote in favor of the specific recommendations outlined in that GA recommendation. I must respectfully disagree that a failure to support the specific lines contained in that GAR recommendation constitutes "acquiescence" with the proposal. At best it can be said that Great Britain supported in general the principle of establishment of two states in the former Mandate territory while rejecting the specific lines indicated in the measure. Support for a two-state solution is also the current policy of the government of Israel. However, it has still not been demonstrated that Great Britain had the authority as Mandatory power to forcefully impose on the inhabitants a specific division of territory other than that provided for in Article 25 of the Mandate. The Mandate did not contain any such authority. Even if Great Britain "acquiesced" in the vote, the UN cannot derive such authority from the Mandate if it did not exist. Per Article 80 of the UN Charter, the General Assembly has no authority to change the terms of pre-existing agreements, and as such had no power to forcefully impose on the inhabitants of the Mandate a specific division of territory. UN GAR 181 remains merely a recommendation to the inhabitants that terminated on its rejection by one of the parties to the internal conflict, and the last legal allocation of territory remains the Palestine Mandate of 1922. ---------------------------------------------------------------- As to the characterization of conditions prior to the Arab initiated aggression of 1947-1949, I agree that there was no talk of ousting any Arab residents by official representatives of the Jewish Yishuv. As historian Anita Shapira of Tel Aviv University has noted in her essay The Past is not a Foreign Country, "there is not a shred of evidence that Zionist ideology changed in the 1930s; not a shred of evidence that the transfer idea supplanted the idea of immigration as a means to achieve a Jewish majority in Palestine." It is true that all the events concerned with the exchange of populations between Arabs and Jews took place only after the Palestinian Arabs with the assistance of the surrounding Arab members of the UN violated the UN Charter and attempted to destroy by force the Palestinian Jews. And this exchange that was a consequence of Arab aggression included 850,000 Jewish refugees from Arab lands whose descendants now comprise half the Jewish population of Israel. As Shapira has stated, "The Palestinians [Arabs] did not go to war in 1948 because they were afraid the Jews would oust them; they went to war because they were not prepared to make their peace with the idea of a Jewish state in Palestine." Unfortunately, many elements of the Arab population are still unwilling to make their peace with this idea to this day.
Tal Libnan
Arizona, USA - Sunday June 09, 2002 at 6:33 pm
I request that Tal Libnan email me to discuss a private "sidebar" to these issues.
Steve Ames
Arizona, USA - Sunday June 09, 2002 at 9:10 pm
I must admit that this discussion continues to exude tremendous educational value for me. While it is not my intention to be self-depreciating, I have to admit that it has become painfully evident to me that I am a neophyte when it comes to issues related to international law. I had the opportunity to read the article Professor D’Amato referred to in his comments above. The article, which I recommend to others in this forum, outlines the complexity of the ‘virtual’ legal system governing the relationships of states. Within the context of the discussion in this forum, the article brings some more questions to my mind with regard to the authority of the Security Council to take action under the UN Charter. But, for now, I will contend myself with expressing my views on some of the points that Mr. Libnan raised in his rebuttal above. First, I may be misinterpreting Professor D’Amato’s position, but I believe he did not in fact change his opinion with respect to the validity and applicability of UN GAR 181 to the issue of Israeli borders. I believe that it was my question regarding the force behind the resolution that might have slightly confused the issue. Second, since the trust and subsequent Mandate for Palestine originated with the League of Nations, it would seem reasonable to assert that the authority of the Mandatory Power under said Mandate would be subordinated to the authority of the League of Nations, or its successors, outside of the explicit powers granted to the Mandatory Power in the Mandate. The authority of Great Britain, aside from its normal powers as a member of the UN General Assembly and the Security Council, to affect the decision with regard to the future of the trust existed only in so far as the UN Charter gave Great Britain, as Mandatory Power, the right to agree to alterations or amendments to the trust agreement. This brings us to the issue concerning Great Britain’s abstention. It would seem reasonable to assume that if indeed Great Britain did not approve of UN GAR 181, it would have casted a dissenting vote rather than abstaining from voting all-together. Furthermore, it would be reasonable to assume that if Great Britain’s dissenting view did not prevail in the General Assembly then it would use its authority as Mandatory Power to object to the provisions of the resolution, which constitute an alteration/amendment of the Mandate for Palestine. Thus, Professor D’Amato’s assertion that Great Britain tacitly approved the resolution seems to be supported, albeit indirectly, by the facts. Third, I agree with Mr. Libnan that the Mandate for Palestine did not give Great Britain the authority to force the Palestinians (be it Jewish, Arab, or Christian) to accept the division of their territory. Such power would rest with the UN as the successor to the League of Nations that formed the trust to begin with. The UN Charter gives it latitude in promoting the independence of indigenous population of territories it holds in trust. This lends further credence to the UN power to institute a division of the territories as outlined in UN GAR 181, which, by the way, did not impact international borders of Mandate Palestine. Fourth, the notion that rejection of UN GAR 181 by any of those impacted by it automatically voids the resolutions does not seem logical. The UN General Assembly passed the resolution, which did not include any provision with regard to consultation of the indigenous population or required concurrent approval therefrom, and would seem logically to be the only entity with the authority to repeal it. Fifth, and last, while it may be true that Zionist doctrine with regard to population of Eretz Ysrael did not change over the years, the admission of notable figures in Israeli independence, such as Moshe Dayan, in their memoirs that once the 1948 war began the Israeli army forced Arab Palestinians to leave their homes at gunpoint suggests, at the very least, a deviation in official Israeli government policy from Zionist doctrine. While I do not dispute the fact that Arab countries persecuted and expelled Jews within their borders during that time, I can hardly see that such highly illegal and morally appalling acts can justify, legally or morally, subjecting Palestinian Arabs to the same treatment. In the end, I have to point out that I am solely focused on the assertions and arguments made in the original essay put forward by Professor D’Amato and subsequent comments made by participants. I am not an expert in international law or even an attorney, and would very much welcome challenges and debates of the opinions I expressed above.
Sameh Mobarek
Chicago, Illinois, USA - Sunday June 09, 2002 at 9:39 pm
As an addendum to my comment above, I would like to ask Professor D’Amato to elaborate further on the statement that UN GAR 181 is an ‘authoritative finding’. What makes a resolution an authoritative finding?
Sameh Mobarek
Chicago, Illinois, USA - Monday June 10, 2002 at 5:17 am
I find the idea of Palestinian West Bank as a Jordanian trusteeship curious. Just as the force of "resolution" 181 doesn't come from the British plans but from the UN, as Tal Libnan argues (correctly, I believe), likewise the alleged Palestinian trusteeship should have been submitted to the UN Trusteeship Council. Besides, the annexation of such a "trusteeship" seems to prohibited according to the ICJ's case law in the Namibia case, as well as by the general "uti possidetis" rule. Let me repeat that the "resolution" 181 was a plan, so the General Assembly isn't the only entity to repeal it, because there was nothing to repeal. In so far as it is now said to be an "authoritative finding", it was still a plan, and it may not be wise partition the partition plan itself! If the Palestinians didn't want it, it became irrelevant, regardless of any transitional period provided in it, because that was part of the plan that was rejected. Whether the Palestinians accepted the annexation is a moot point, because there is no agreement on whether there is a Palestinian people (they were "scattered" all over the Arab world). Besides, the Palestinians were not the only Arabs who didn't accept the plan. I believe the Jordanians rejected it as well, so any attempt to embed the Jordanian rule into "resolution" 181 seems to fail. Or, as Prof. D'Amato argues, the plan was an authoritative finding, in which case the Arabs had no right to reject, in which case the Jordanian annexation is contrary to law (so Jordan also had no right to cede the West Bank to the PLO). And if Britain's signature of the Kellogg-Briand Pact could bind Palestine, it should have bound Jordan as well, in wish case the annexation and the events that led to it should have been a no-no. If only part of the mandate was used to create a state and the rest had remained a trusteeship, this matter should have been taken to the Trusteeship Council, which it wasn't, as far as I know. So I don't see any reason (except the humanitarian one) to suppose that the former mandate has been partitioned. However, even this argument seems wrongheaded, taking into account that the "trusteeship" was ceded in 1988 to the PLO (the Gaza strip). So whatever agreements Israel had made with Jordan, the PLO couldn't succeed Jordan as a party to the agreements without Israel's approval. This would have seemed unlikely, since Israel didn't recognize the PLO as a state.
Jari Nousiainen
Finland - Monday June 10, 2002 at 8:18 pm
Anthony D'Amato did not mention that Jordan was also included in Palestine. 1/3 of historic Palestine is west of the Jordan river. 2/3 of historic Palestine is east of the Jordan river. England illegally broke 2/3 of Palestine to form the Arab state of Jordan. To force the 1/3 that remains to be divided between Arabs and Jews is not fair. 2/3 is already an Arab state. The simple, fair, and long term stable solution to the conflict is to recognize that Jordan is the Arab state in Palestine and Israel is the Jewish state in Palestine.
Jack Fisher
California, USA - Monday June 10, 2002 at 10:27 pm
The Balfour Declaration and the Statute of the League of Nations Mandate of Palestine cannot be used as a legal basis to award the entire former Palestine mandate to Israel, because the British declared on several occasions that the phrase "national home for the Jewish people" did not mean an independent state. Since the only provision for partition in the Statute was the detachment of the area east of the Jordan river, the British decided they had no legal authority either to partition the mandate or to hand it intact either to the Jews or to the Arabs. They therefore simply abandoned the Mandate and left it vacant. There is nothing in the Charter of the United Nations giving that body the legal authority to set national boundaries or to partition trust territories. Therefore the partition plan boundaries never came into effect. In her Declaration of Independence Israel cited both the Balfour Declaration and Resolution 181 as the legal basis for her right to nationhood. Thus what came into existence at the dissolution of the mandate was not a boundary, but, rather a territorial claim. At the same time, the Arab League announced its conspiracy to commit aggresion against Israel and set up a United State of Palestine over the entire former mandate. There was no actual boundary demarcated between Israel and the Arabs until the armistice accords were signed at Rhodes in 1949. The Israeli-Egyptian armistice specifcly stated that the creation of a demarcation line in "the Gaza-Rafah area" could not be construed as creating an international boundary. The Israeli-Jordanian armistice did not prohibit the west bank demarcation line from becoming an international frontier but did not refer to it as being a frontier. Israel, in 1956, in response to Egyptian-sponsored terrorist raids against her citizens and Egyptian blockades of her shipping, invaded Gaza and the Sinai up to the Suez Canal. On this occaison the UN General Assembly (not the Security Council) responded by passing several resolutions (including 997, 999, 1002 and 1124) calling for Israeli withdrawal -- not to the mandate line, not to the partition line, but to the Israeli-Egyptian armistice demarcation line of 1949. When the UN Security Council passed Resolution 242 in 1967, it was not setting up new boundaries but merely following the precedent set in 1956. All subsequent mideast peace agreements -- including the Camp David accords, the Israeli-Egyptian Peace Treaty, the Oslo Accords, and the Israeli-Jordanian peace treaty -- have been based on the idea that the armistice demarcation lines are temporary boundaries until the "secure and recognized boundaries" suggested in Resolution 242 are established. (It is somewhat surprising that there are no Security Council resolutions or General Assembly resolutions condeming Jordan's "illegal" annexation of the West Bank or condemning the violation of the principle of UTI POSSEDITIS which took place when the British Cameroon mandate was partitioned between Nigeria and the former French Cameroon mandate).
Mike Anderson
Toronto, Canada - 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.
Anthony D\'Amato
Northwestern Law School
Chicago, Illinois - Tuesday June 11, 2002 at 3:43 am
The original claim that UN GAR 181 established “inviolate” borders was predicated on the assertion that Great Britain’s “approval” of UN GAR 181 constituted a conscious exercise of their Mandatory authority to divide the territory assigned under the Mandate into two states. First, no such authority has been demonstrated to exist, except for the area east of the Jordan per Article 25 of the Mandate. Second, the assertion that Great Britain affirmed the resolution is FALSE. ----------------------------------------------------------------------------------------------------- Now that the error in claiming Great Britain voted in favor of UN GAR 181 has been acknowledged, the revised argument has become one of Great Britain “intending” some vague “acquiescence” despite their failure to affirm the resolution. Unsubstantiated vague intentions cannot in any reasonable manner be construed as a conscious and purposeful exercise of an unspecified and unrecognized power of the Mandate authority to impose a division. Further, Great Britain’s actions subsequent to the vote of 29 November 1947 were clearly unsupportive of the measure. Great Britain refused to cooperate with the UN Palestine Commission, forbidding the Commission to enter Mandate territory until 1 May 1948, only two weeks prior to the termination of the Mandate. In fact, the Palestine Commission never entered the Mandate prior to the Arab invasion. Great Britain also turned over civil and military facilities in a manner entirely contrary to the provisions of the resolution, most specifically the proposed boundaries of that resolution. The entire period following the vote on GAR 181 is filled with such instances of the British government acting in direct contravention of the proposal. As noted by others, Great Britain's intent was not to support the UN proposal but to abandon their Mandate responsibilities without regard for the outcome. ----------------------------------------------------------------------------------------------------- By the failure to affirm the resolution and by subsequent actions, Great Britain clearly demonstrated that it was never their intention to exercise any Mandatory authority to impose the boundaries contemplated in UN GAR 181, nor was any such authority to do so specified in the Mandate terms. UN GAR 181 remains a non-binding suggestion of the UN General Assembly, the last legal allocation of Mandate territory remains the League of Nations Mandate of 1922, and the sovereign State of Israel remains the only legally established successor to the Mandate Authority. Contrary to the contentions made, nothing that has transpired since the British abandonment of the Mandate has established fixed boundaries for a subsequent division of territory. Neither the UN proposal, nor the armistice lines negate Jewish rights established by the Mandate terms. And as the legal representative of the named beneficiaries of the Mandate, Israel's claims to territory within the bounds of the Mandate are still valid. The Arabs are certainly at liberty to propose the old armistice line they violated in 1967 for a division. And Israel is at liberty to propose alternative demarcations as terms for ending the conflict. But without the voluntary relinquishment of legitimate claims in the disputed territory by the government of Israel, no further division of the territory of the former Mandate can be made, and no additional sovereign power can be established where none has existed since the termination of the Mandate. As Professor D'Amato has noted, "a sovereign state always has the right to cede portions of its territory." This is also true of legitimate claims of sovereign states in disputed territories. This is precisely the nature of the Israeli proposal to allow the creation of a new sovereign Arab authority. Only by the completion of the process of establishing an Arab authority in those lands where Israel cedes her claims will permanent boundaries subdividing the former Mandate territories take place.
Tal Libnan
Arizona, USA - Tuesday June 11, 2002 at 5:16 am
Yes, Article 25 of the Palestine Mandate provides: "In the territories lying between the Jordan and the eastern boundary of Palestine as ultimately determined, the Mandatory shall be entitled, with the consent of the Council of the League of Nations, to postpone or withhold application of such provisions of this mandate..." See the Palestine Mandate at http://www.yale.edu/lawweb/avalon/mideast/palmanda.htm . So the separation from Trans-Jordania from the rest of Palestine is not the issue. However, Article 25 is revealing in other respects as well: it is the only territorial partitioning allowed in the Mandate and then only with the consent of the Council of the League of Nations. So Britain had no right to issue a unilateral partition plan and then to undermine the UN partition plan 181 in 1947. According to Mike Anderson, Britain accepted that and abandoned the Mandate and left it vacant. On the other hand, that doesn't justify the Jordanian annexation either. Yes, Jordan might be construed as the Arab state meant in UNGAR 181, were it not for three inconvenient facts. There were two Arab states in Palestine, so one of them had to be contrary to the resolution. Second, the Arab states (that would include Jordan) had rejected the resolution. Besides, when the PLO got the West Bank from Jordan, it declared that it would accept resolution 181. This would mean that the Jordanian annexation was contrary to the resolution 181. Third, the British signature of the Kellogg-Briand Pact bound Jordan not to resort to aggression, and the unequivocal objective of the Jordanian presence in Palestine was not to annex the West Bank but to set up a United State of Palestine over the entire former mandate, in other words to destroy the Jewish state, which was established in accordance with resolution 181. I see no reason why the "secure and recognized boundaries" mentioned in resolution 242 couldn't be the mandate line. They would be recognized though not yet secure. It matters little where the armistice lines run, because they are temporary solutions until such secure and recognized boundaries are brought about. There is no reason why the Palestine Mandate cannot be used as a legal basis to award the entire former Palestine mandate to Israel. Yes, the British declared on several occasions that the phrase "national home for the Jewish people" did not mean an independent state, but when the matter was put to the UN General Assembly, Britain clearly acted in contravention of the ensuing resolution, according to which the national home would become an independent state. Besides, it didn't even have to come to the vote in the General Assembly, because Palestine was, as has been conceded, a Class A Mandate, which meant it needed minimal tutelage before becoming independent. Thus, you couldn't use your discretion in Palestine to the same extent as in a Class C Mandate, South West Africa being a case in point. The partitioning of the British Cameroons in contravention of the uti possidetis rule doesn't undermine this reasoning, because the partitioning of the Cameroons was taken to the International Court of Justice, if my memory serves me correctly, even if there were no UN Security Council or General Assembly resolutions against it. These organs couldn't even have said anything on the matter while the case was pending in the ICJ. As far as I know, Namibia inherited the boundaries from the times of German colonialism, so it would be incoherent to impose a partitioning on Palestine, a Class A Mandate. I think resolution 181 is given too much credit here. First of all, if the PLO accepted both resolution 181 and resolution 242 in 1988, how can both of them taken together decide the boundary issue, if they refer to different boundaries, in the latter case the armistice line of 1949? Second, the lo