Excellent post by Henry Shiner regarding Israels legal basis being the agreements of San Remo - Not UN Resolution 181 - Source : Howard Grief : The Legal Foundation and Borders of Israel under International Law : A Treatise on Jewish Sovereignty over The Land of Israel Read below: Henry Shiner · Toronto, Ontario U.N. Resolution 181, San Remo & Article 80 of the U.N. Charter There is a widespread misconception, both among Israel’s past & present government leaders,judiciary, as well as with Israeli & international media, that the State of Israel derives its legal existence from the United Nations General Assembly Resolution 181 (II) of November 29, 1947, popularly known as the Partition Resolution. This misconception is so ingrained in official historical,political and popular thinking, that it is extremely difficult to change, regardless of the overwhelming evidence to the contrary. One major reason for this misconception is that Israel’s own Proclamation of Independenceperpetuates the wrongful notion that it was “on the strength of Resolution 181 of the United Nations General Assembly that the members of what in the Proclamation itself was called “the People’s Council” relied on in declaring the establishment of the State of Israel on May 14, 1948. Other reasons cited in the Proclamation were “our natural and historic right”. It was further stated there that “the State of Israel will cooperate with the UN in implementing Resolution 181 of the General Assembly of the 29thNovember, 1947, and will take steps to bring about the economic union of the whole of Eretz-Israel. The misstatement in the Proclamation of Independence that the State of Israel relied “on the strength” of the Partition Resolution for its legal establishment is false. As a result, this reference to Resolution 181 in the Proclamation ofIndependence actually conceals or suppresses the true fact, which is that Israel’s legal foundation under international law derives not from United Nations General Assembly Resolution 181 (II) of November 29,1947, which was merely a non-binding recommendation without any force of law, as the General Assembly of the U.N. is not a legislative body and certainly does not have the legal power to confer or deny statehood upon any people. Rather, Israel’s legal foundation stems from the San Remo Resolution of April 25, 1920, issued at the San Remo Peace Conference ( April 19-26,1920) in San Remo, Italy at the end of WWI by the Supreme Allied Council, which was comprised of Britain, France, Italy, Japan and the U.S. (as an observer). The Supreme Allied Council, who legally represented the interest of the collective allied nations/forces of WWI , did possess the full legal right of disposition over the lands of the former Ottoman Empire. Ownership and control of these lands were acquired by the Allied Nations as a result of the Right of Conquest, which was the extant International Law at that point in history. The Right of Conquest was a law that granted nations ownership of the lands that they conquered. The completion of colonial conquest of much of the world , the devastation of WW I and WW II, and the alignment of both the United States and the Soviet Union with the principle of self determination led to the abandonment of the Right of Conquest in formal international law. The Mandate System, the1928 Kellogg-Briand Pact, the post-1945 Nuremberg Trials, the UN Charter, and the UN role in decolonization saw the progressive dismantling of this principle. Simultaneously, the UN Charters guarantee of the territorial integrity of member states effectively froze out claims against prior conquests from this process. The San Remo Resolution resolution did have the force of law upon its being incorporated first in the Treaty of Sèvres of August 10, 1920 and then in the first three recitals of the Preamble of the Mandate for Palestine, that was confirmed by the 52 states, all members of the League of Nations, in 1922 and separately by the United States in a 1924 treaty with the United Kingdom : (The Anglo-American Convention). Furthermore, the Mandate for Palestine referenced the British Governments favorable view on the establishment of a Jewish Homeland in Palestine, what is commonly known as the Balfour Declaration, which was a pronouncement very much welcomed by the British and international Jewish community, however on its own merit, this pronouncement did not have any type of binding legal weight in International Law, and did not confer any sovereign legal rights upon The Jewish People. Although at that point in history, Britain was arguably the worlds super power, it had not yet acquired the legal right of disposition on this geographic region. This misunderstanding is one of the facts that has resulted in the distorted narrative that gave birth to the concept of The British Mandate for Palestine . No such Convention ever existed. Britain was the Mandatory (i.e. the property manager on behalf of the Supreme Allied Council & was to have mentored to the Jewish People- the beneficiaries of the Mandate for Palestine) . Britain was acting on behalf of the Supreme Allied Council/Allied nations to ensure that the terms of the Mandate would be fulfilled, even though they violated many of the terms during the period that the Mandate was in force. The Supreme Allied Council did possess the full legal right of disposition, and as such, did have the authority to vest the Nation of Israel/Jewish People with sovereign legal rights to establish/reconstitute their homeland in the Land of Palestine. Article 80 of the UN Charter, once known unofficially as the Jewish People’s clause, preserves intact all the rights granted to Jews under the Mandate forPalestine, even after the Mandate’s expiry on May 14-15, 1948. Under this provision of international law (the U.N. Charter is an international treaty), Jewish rights to Palestine and the Land of Israel were not to be altered in any way unless there had been an intervening trusteeship agreement between the states or parties concerned, which would have converted the Mandate into a trusteeship or trust territory. The only period of time such an agreement could have been concluded under Chapter 12 of the UN Charter was during the three-year period from October 24, 1945, the date the Charter entered into force after appropriate ratifications, until May 14-15, 1948, the date the Mandate expired and the State of Israel was proclaimed. Since no agreement of this type was made during this relevant three-year period, in which Jewish rights to all of Palestine may conceivably have been altered had Palestine beenconverted into a trust territory, those Jewish rights that had existed under the Mandate remained in full force and effect, to which the UN is still committed by Article 80 to uphold,or is prohibited from altering to this day . Source : Howard Grief : The Legal Foundation and Borders of Israel under International Law : A Treatise on Jewish Sovereignty over The Land of Israel ( available :from Amazon)
Posted on: Sat, 09 Aug 2014 20:56:08 +0000
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