Tuesday, August 29, 2017

How the Balfour Declaration Became Part of International Law And how it thereby helped to secure the legal foundations of the state of Israel.



How the Balfour Declaration Became Part of International Law

And how it thereby helped to secure the legal foundations of the state of Israel.
The San Remo Conference in 1920. Photo 12/Alamy Stock Photo.
The San Remo Conference in 1920. Photo 12/Alamy Stock Photo.




RESPONSE
JUNE 12 2017
About the author
Nicholas Rostow is Charles Evans Hughes visiting professor of government and jurisprudence at Colgate University.
Martin Kramer deserves our thanks: in “The Forgotten Truth about the Balfour Declaration,” he has illuminated the important role played by Nahum Sokolov in the diplomacy that led to the 1917 endorsement by the wartime allies and associated powers of the idea of a Jewish national home in Palestine under British protection. He has thereby enlarged our understanding, not only of how the Balfour Declaration came about but also of how it became part of international law.
In the case of each party to the endorsement, the politics of honor, interest, and fear (to paraphrase Thucydides) were as important in 1917 as they always are. France endorsed the Zionist project partly in order to secure its interests in Lebanon and Syria against British encroachment. But neither France nor Britain wanted to create a problem for their wartime alliance itself, and both were apprehensive lest Germany, their common enemy, would reignite, with worldwide Jewish support, its own Near Eastern ambitions, represented by the Berlin-to-Baghdad railway and the German alliance with the Ottoman empire.
If these were among the factors encouraging the Western allies to support Zionism, the Jews and the Vatican, for their part, also preferred that Britain be given the responsibility for implementing and protecting the Zionist project. Jews, looking toward self-government, thought the British imperial way far more flexible than the French way. The Vatican also preferred Protestant Britain, among European empires the most experienced in colonial administration, to anti-clerical France. (The United States, neutral in the war until it joined the allies in April 1917, would later consider but reject a formal role in governing Palestine.)
In turn, these same strategic considerations helped make the Balfour Declaration part of international law. Kramer shows how the participants in the San Remo Conference of 1920—Britain, France, Italy, Japan, Belgium, Greece, and the United States as an observer—came to endorse the idea of a League of Nations mandate for Palestine. Both Sokolov and Chaim Weizmann attended that conference, and the fact that they were welcome there assured the outcome.
In 1922, the League duly created the mandate for Palestine and made Britain the mandatory power. To the words of the Balfour Declaration, it added the recognition already given at San Remo “to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country” and conferred on Britain the obligation to implement its declaration, thus making it, too, part of international law. The terms of the mandate were binding on all members of the League. In 1924, the United States formally concurred in this international action by means of a treaty with Great Britain. Its doing so, as Kramer relates, followed logically from President Woodrow Wilson’s endorsement of the Balfour Declaration prior to its issuance and to U.S. participation in the 1920 San Remo Conference.

What has thisinteresting history to do with today? The mandate system revolutionized colonialism. The victorious allies took control of German colonies and parts of the Ottoman empire as trustees obligated to discharge “a sacred trust of civilization” (as the League of Nations Covenant put it). The goal was self-determination. In the case of the Palestine mandate, that meant Jewish self-determination in a manner that respected the rights of non-Jewish inhabitants. Similar mandates for Syria, Lebanon, Iraq, and what became Jordan were intended to result in Arab self-determination.
In legal terms, the mandates were trusts—and so, with the demise of the League of Nations, they were carried forward under the trusteeship system of the United Nations. Specifically, the UN Charter undertook to maintain each mandate until it was replaced by a new agreement between the responsible state and the United Nations. Up to that point, as the UN Charter’s chapter on trusteeships stipulated, nothing “shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which members of the United Nations may respectively be parties.” In other words, where Palestine was concerned, the terms of the League of Nations mandate, incorporating the Balfour Declaration, became part of international law.
In 1945 when the UN Charter was created, the territory of the Palestine mandate theoretically included what is now Israel, the West Bank, Gaza, and Jordan. But two decades earlier, in 1922, the British, with League of Nations concurrence, had barred Jewish settlement east of the Jordan River and created the emirate of Trans-Jordan, which eventually became the Hashemite Kingdom of Jordan. Thus amended, the Palestine mandate designated only the territory west of the Jordan as the Jewish national home: the same territory, further diminished by the UN partition resolution of 1947, that would become the state of Israel when Britain relinquished its responsibilities as mandatory power in 1948.
Violence between Arabs and Jews, restricted Jewish immigration in the 1930s, World War II and the Holocaust, the establishment of Israel, the June 1967 and October 1973 wars and their consequences—all of these developments and other, more recent ones have changed the demographics and politics in what was the Palestine mandate. But they have not by themselves changed international law.
The Balfour Declaration proclaimed the imperative to respect the civil and religious rights of non-Jews in Palestine. Today the same imperative requires both Israelis and Palestinians to honor their respective aspirations and to seek accommodation. In principle, they have done so in the Oslo process for a final distribution of the un-allocated territories of the (amended) League of Nations mandate for Palestine. Although the process has been stalled and questions have been raised about its viability, options for achieving territorial accommodation do exist—in 2011, the Washington Institute for Near East Policy published a helpful book of maps—and could yet be considered by the parties. For, as President Johnson said in the wake of the June 1967 war, “Clearly, the parties to the conflict must be the parties to the peace. Sooner or later it is they who must make a settlement in the area.”
Does this analysis constitute an answer to those who would dismiss the Balfour Declaration root and branch on the supposed grounds that, in it, one nation unilaterally promised another nation a third nation’s land? It does indeed. We need only recall that world history is full of transactions like the Palestine mandate. Events of this or of similar kind—where colonial powers granted sovereignty to stateless nations through international treaties—contributed to the boundaries of a substantial number of the UN’s 193 member states. As a matter of international law, the fact that Israel exists today is no more peculiar than that the Palestinian Authority exists or that the Hashemite Kingdom of Jordan exists. All have been created, just as the United States was created—and not by God, although Kramer does report that Pope Benedict XV saw Jewish immigration to Palestine as “providential.”

We should thankMartin Kramer for another reason altogether. At the United Nations, at the International Court of Justice, and at the Human Rights Council, as well as at other places where discussions of the Middle East take place, the legal history recounted here is overlooked. The 2004 advisory opinion of the International Court of Justice on the legal consequences of Israel’s security wall does not mention that history. Nor is it cited in debates at the UN Security Council on Israeli settlement activity or responses to terrorist and other attack, any more than such deliberations rehearse the events that led to Israel’s military action in self-defense against Egypt, Syria, and Jordan in June 1967.
That is the job of all-important reminders like Martin Kramer’s. They fill a need. It is not just that ignorance of the past can lead to unnecessary policy error. As we know all too well from UN resolutions and opinions of the International Court of Justice, such oblivion, willed or not, can and in this case emphatically does lead to gross injustice.
















    • While many of us have studied about the Balfour Declaration and understand that what was legal under the 1920 San Remo and the League of Nations became recognized and accepted as international law; thus, under the United Nations, after 70 + years with the more recent trends in the UN to back away from Balfour Declaration as a British Colonial decision that discriminated against the former colonies (i.e.: an excuse for former colonials to seek reparations from the former Colonial Powers, etc) how can Israel then convince and persuade other UN Member states (especially those who exercise on being politically correct European States whose agenda is primarily maintaining access to oil at all costs, no matter who suffers the consequences) as well as turning their backs against supporting the legitimacy granted to both Jewish and Arab-Palestinians as agreed to by the Balfour Declaration? Most countries today say Balfour is illegal because it was a colonial era agreement and not relevant today, which we know is an illusion. My concern is that the anti-colonial era position taken by the UN member states today is only mercerized to de-legitimizing the right of existence of Israel as a Nation State and Jews to have their own historical homeland. Can we argue that the Roman invasion of the ancient Kingdom of Israel and expulsion of its legal inhabitants also was an act of colonialism and illegal, and the expulsion of Jews was an example of ethnic cleansing too? How about the Australian aborigines or the Native American Indians or Hawaiians, or even the Ainu who once ruled Northern Honshu and were pushed into living in Hokkaido, Japan. Why are we not drawing a line in the sand and state that colonialism and the upheaval it caused was a tragedy, but history is history. Today, we need a solution that is respectful of both Israel and the separate "future" Arab-Palestinian State. The land space is limited and Right of Return is not possible without changing the demographics of Israel. Full stop. Arab-Palestinian militia factions must disarm and accept the borders based on Balfour, Declaration albeit the rightful gains when Arab aggressors invaded in the 1948 and 1967 Wars and lost. The territories such as the Golan Heights, Western and Eastern Jerusalem rightfully belong to Israel. Gaza belongs to the Arab-Palestinians. Whether Gaza can operate as a nation state remains to be seen, in view of its current oppressive government. The example of the two states of Pakistan that eventually became Pakistan and Bangladesh would serve to suggest that formal recognized borders would be far more secure for both the Arab-Palestinians and for Israel. That may become another future issue, but first, we need limits on the debate regarding the illegality of past colonialism. Former Colonial powers have a duty to pay reparations and most have done so to one extent or another. That includes reparations by the Arab States to Israel for Jewish assets confiscated and retained by them and reparations by Israel for Arab assets retained or used by Israel. 
                                                                                          
      Life is full of inequities, but relations among international powers must continue, and a resolution to the Arab-Palestinian and Israeli conflict needs to be expedited so we can close this sorry chapter. There will be no clear winners or losers. But there must be a viable Peace Treaty that is observed to the fullest and not simply a Peace Agreement. Compromises on both sides requires genuine strong leadership from within both the Arab-Palestinians and Israelis, as well as a recognition that outside interference from either the Arab States or from the Permanent members of the UN Security Council will not be and must not be accepted. This is ultimately a bilateral problem that cannot be imposed from or by outside parties. The question is do either politicians and leaders in Israel or in the Arab-Palestinian Authority want the hostilities to end or continuous bloodshed. Terrorism and violence is illegal and unjustifiable, it must be stopped if true peace is to be accomplished. Continued hostilities is unjustifiable and counterproductive. Doing nothing but blaming one another is unjustifiable for respective citizens on both sides. Are the parties willing to act as adults like the Irish did in Northern Ireland and the end of the sectarian terrorism? I certainly hope so. The process of peace requires open communications and a willingness to compromise and make hard decisions. It should be in the interest of both parties to come to a peaceful terms, this will bring about an increase in the standard of living, Jobs, education and healthcare.
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    • an excellent article but misleading on two points:
      "Similar mandates for SyriaLebanonIraq, and what became Jordan were   intended to result in Arab self-determination."
    • As Prof Rostow acknowledges further on in the article, there was no mandate for Jordan or Transjordan, as it was called at the time. Transjordan was part of the Palestine Mandate and The Jewish National Home [JNH]. However, the League's Palestine Mandate in its Article 25 gave the mandatory power in violation of agreements, the UK, the right to postpone temporarily east of the Jordan the application of the provisions of the Jewish National Home as spelled out in the League's Mandate for the JNH, for 25 years,     as I recall.
      Prof Rostow does not mention that the Mandate itself gave the UK an illegal loophole for setting up a non-Jewish state entity east of the Jordan which is over 77% of the territory allocated for the National Home of the Jewish people, that is, in Transjordan [article 25]
    • Eliyahu100
    • I am not sure about your basic information. But the British military and civil officials governing the Land of Israel from 1917 into the early 1920's were mainly hostile to Jews and Zionism. And Storrs was one of those who made things difficult for Jews in the country.

      Since you mention Ulster, let us be honest about history. Unlike the Ulster situation. The Jews are the indigenous people of the country as recorded in the written historical record and in archaeological findings. There never was a "Arab-Palestinian people" in all of history. After 1948, Jew-haters in the British government, like Christopher Mayhew, had the psychological warfare experts in the Foreign Office invent and elaborate the notion of a "Arab-Palestinian people" that had never existed and that did not fit the Arab-Palestinians' image of themselves as loyal pan-Arabists. But the Arab leadership first and later on Western academia and the journalists were persuaded to use the term "Arab-Palestinian people" [around the year 1969 or 1970]. The PLO of course made its initial appearance in 1964 with the blessing not only of Nasser but Russia and certain powerful Western governments and institutions.












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      1 comment:

      1. If you read the 1917 Balfour Declaration (Which emulated Napoleons 1799 letter to the Jewish community in Palestine promising that The National Home for The Jewish people will be reestablished in Palestine, as the Jews are the rightful owners). Nowhere does it state an Arab entity west of The Jordan Rive. The San Remo Conference of 1920 does not state an Arab entity west of The Jordan River. The Mandate for Palestine terms does not state an Arab entity west of the Jordan River. It specifically states a Jewish National Home in Palestine without limiting the Jewish territory in Palestine. It also states that the British should work with the Jewish Agency as the official representative of the Jews in Palestine to implement the National Home of the Jewish people in Palestine. I stress again; nowhere does it state that an Arab entity should be implemented west of the Jordan River.
        As a matter of historical record, The British reallocated over 77% of Jewish Palestine to the Arab-Palestinians in 1922 with specific borders and Jordan took over additional territory like the Gulf of Aqaba which was not part of the allocation to Jordan.

        No where in any of the above stated agreements does it provides for an Arab entity west of the Jordan River. It specifically states political right to the Jewish people. The U.N. resolutions are non-binding with no legal standing.
        YJ Draiman

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