A View from Outside

Professor Alon Confino, History, University of Virginia and Ben-Gurion University

Professor Confino began by emphasising the need to view the Palestine Mandate as part of the international system. The Great War was not a European war, but a global war. The mandate system was established in order to resolve the question of the former colonies of the German and Ottoman Empires. None of the Allies contemplated giving the colonies back to Germany; nor did Britain and France intend to give away the Middle East. Yet President Wilson insisted that a simple annexation was also not acceptable. Reluctantly, the Allies agreed to establish the mandate system under the League of Nations. Three kinds of mandate were agreed upon, allegedly based on the stage of development of the people of the territories in question, which therefore predicted their ability to self-govern. Middle East territories was designated as A Mandates, which meant, in theory, that the local people could soon exercise self-government. Most of German Africa became B Mandates. The territories too remote to be of importance to the Allies were designated C Mandates. This status was the most ambiguous, as the mandatory power was permitted to govern these territories as integral to itself. The Mandate for Palestine was thus part of a global political history.

Moving to the meaning and interpretations of the mandate system, Professor Confino stated that when this system was first established, people viewed it as a significant change from the imperial system, namely as a possibility for the development of and progress for the conquered people. In the last few decades this interpretation has been challenged, and the mandate system is now perceived as colonial rule in a different guise, especially because of Article 22 of the Covenant of the League of Nations, which explicitly stated that the mandate territories were inhabited by peoples not yet able to govern themselves and should be governed by the civilised nations. More recent historical discourse casts the mandate system in a new light: not as a political institution, because it was not an effective administrative system, but as a mechanism for introducing new language about governance. It generated norms and offered the mandatory powers legitimacy through an international sphere wherein they spoke of rights, governance and sovereignty. The mechanism that allowed such legitimacy was the petition system, which created a perception of legitimacy for the empire to govern those people. Between the two World Wars, powerful states had no difficulties in ruling but faced problems of legitimacy to rule. Naked imperialism was not enough, and there was a need for a structure that would appear to be different, although in reality the powers applied to the territories under mandate the same political structures of former colonies. By allowing others to challenge them, they opened a space to subvert their own rule. This was the role of the League and of the Commission of the League. In this way, the League and the mandate offered a new narrative. They allowed people to form and substantiate their political demands for the present on narratives drawn from the League and the Charter. This is the way in which Arabs and Jews now justified their own historical narratives.

Professor Confino concluded by noting that most of the petitions that had been brought before the Mandate Commission came from Palestine, from both Zionists and Arabs. Until 1929 the Zionists argued that the Mandate was not being enforced because Great Britain had not established the Jewish national home that was envisaged under the Balfour Declaration. The Arabs had more difficulties: they could not rely on the Mandate, because it did not recognise their collective political rights. Nonetheless, this legal text became important in forming the historical rights of both parties.

The Zionist View

Professor Aviva Halamish, History, Philosophy and Judaic Studies, The Open University

Professor Halamish presented the Zionist conception of the obligations of the Mandatory power, namely Great Britain. From the Zionist perspective, the fundamental document was the Balfour Declaration of 1917, incorporated into the Mandate for Palestine of 1922. The Declaration is obviously asymmetrical, being very clearly pro-Zionist, and termed by some even as Zionist-biased.

With respect to the Jews, the Balfour Declaration used the adjective ‘national’, while the term ‘Arabs’ did not appear at all. The Jews were recognised as a people on their own merit, while the Arabs were referred to as ‘existing non-Jewish communities in Palestine’. The Jews are a people and the Arabs are communities. The Jewish rights are national and collective and phrased in active form (the British government ‘will use their best endeavour to facilitate the achievement’), while the rights of the Arabs are individual, civil and religious, expressed in passive form (‘nothing shall be done which may prejudice’ them). The text of the Balfour Declaration gave the impression that the Jews were the majority in Palestine, and steps were to be taken to protect the civil and religious rights of the Arabs, in a way usually applied to minority groups.

The Zionists considered the Balfour Declaration to be the cornerstone of the Mandate, expected the British to adhere to its principles, and used it as a yardstick by which to judge the deeds of the Mandatory power. From this perspective, the Mandate period was a process of retreat from the policy of the Balfour Declaration until its final abandonment in May 1939. The Zionists struggled against the evolving approach of the British of regarding their obligation in Palestine as being dual in nature.

The Balfour Declaration was addressed to the Zionist Organization (although officially it was sent to Lord Rothschild), which Article 4 of the 1922 Palestine Mandate recognised as the legitimate and sole representative of the Jewish people in all matters concerning Palestine. The British respected the statutory status of the Zionist Organization and thus strengthened certain parts of the Zionist leadership within the Zionist movement.

The Zionists conceived the major obligations of the Mandatory power as elements concerning three major issues. The first related to the establishment of a legislative council. While the Arabs wanted a council that reflected the demographic composition of the Palestine population, the Zionists were afraid that such a council would prevent the achievement of a Jewish majority in the country. The British actually sided with the Zionists, by proposing a council consisting of eight Muslims, two Christians, two Jews and ten representatives of the Mandatory government. A legislative council never materialised.

The two other obligations related to land purchase and immigration, which from the Zionist point of view were the most crucial. The British policy, clearly stated in the 1922 White Paper (defined as the official interpretation of the Mandate for Palestine), was that Jewish immigration should not exceed the economic absorptive capacity of Palestine; that immigrants should not be a burden upon the people of Palestine as a whole; and that immigrants should not deprive any section of the present population of their employment. The principle guiding the Mandatory immigration policy was economic absorptive capacity, customarily defined as the annual rate at which a country can receive immigrants without causing friction and serious economic disturbance. The Zionist Organization accepted economic absorptive capacity as the yardstick for regulating Jewish immigration to Palestine, but disputed its interpretation and implementation. The Organization differed from the British position on two basic points. The first was whether the calculations should be based, as the British maintained, on the economic absorptive capacity of Palestine as a whole, or of the Jewish sector alone. In fact, the British accepted the Zionist stand; otherwise not a single Jewish immigrant would have entered Mandatory Palestine since, paradoxically, the absorptive capacity of the Jewish labour market was greater than that of the entire Palestine economy. The British also maintained that Jewish immigration should not be a cause for dismissing Arab employees from their jobs. They nonetheless conceded that Jewish immigration could be allowed even if it prevented Arab employees from entering the Jewish labour market, admitting that Jewish capital was invested in Palestine in order to enable Jewish workers to find jobs. However, in 1937 the British relinquished the economic absorptive capacity principle in practice by fixing a ceiling of 12,000 Jewish immigrants per year – a number determined by political (demographic) considerations with the aim of maintaining the existing composition of the population, namely two-thirds Arab and one-third Jewish. In 1939 Britain abandoned the principle of absorptive capacity officially and publicly.

The other point of disagreement between the Zionists and the British was the linkage between the situation of Jews abroad – mainly in Eastern Europe and, from 1933, also in Central Europe – and the notion of Palestine as the Jewish national home. The British stance all along was to separate the two issues; however, the Balfour Declaration contained reference to the Jewish people as a whole and was not restricted to the Jews residing in Palestine at the time it was made.

The Zionists also insisted that the right of the Jews to establish their national home in Palestine be recognised internationally. The League of Nations accepted this demand, as manifested in the Palestine Mandate, as did the British in the 1922 White Paper. It is well known that the Zionists wanted the Balfour Declaration to recognise Palestine as the Jewish national home and had to settle for a ‘Jewish national home in Palestine’ (emphasis added). Did they and, more importantly, did the British envision the national home as a prelude to a Jewish state in Palestine? Members of the 1937 Palestine Royal Commission (the Peel Commission) came to the conclusion that ‘His Majesty's Government evidently realized that a Jewish State might in course of time be established, but it was not in a position to say that this would happen, still less to bring it about of its own motion’. Its conclusion was in the spirit of what David Lloyd George, who was Prime Minister at the time of the Balfour Declaration, informed them in evidence.

Professor Halamish concluded by highlighting that the Mandate for Palestine had both universal and particular aspects and, in order to fully understand this complexity, it was helpful to use a comparative perspective, comparing the British Mandate over Palestine with the French Mandate over Syria and Lebanon, paying particular attention to the preamble and the first article of each document.

The Palestinian View

Professor Hillel Cohen, Islam and Middle East Studies, Hebrew University of Jerusalem

Professor Cohen explained that the Palestinians put the emphasis in their evaluation of past events on principles of justice. In terms of justice, international law, the Mandate and the Balfour Declaration should guide us only insofar as their moral value can be established.

He then considered the reasons for the British issuance of the Balfour Declaration. One common explanation is that it was an aspect of the war with Germany, an attempt to win the hearts of Jews in the United States and in Russia. Another explanation concerned the Suez Canal and its strategic importance. Great Britain wanted to ensure its control over the eastern part of the Canal and therefore it wanted to ensure that its allies, the Jews, control Palestine. There is also the myth that British Prime Minister Lloyd George was fond of Weizmann for his work and services for the British Empire, and that the Balfour Declaration was a way to reward Weizmann. According to another important explanation, it was a matter of affiliation between Judaism and Christianity. The idea of the return of the Jews to Zion was part of a biblical prophecy and tradition. However, none of these explanations is about justice. They are about imperial interests, war efforts and religion. According to the Palestinian view, the Balfour Declaration was merely an exercise of power and not an expression of justice. When law is based upon power and not upon justice, it is doomed to be replaced by new powers that will rise.

Professor Cohen noted that there were Jews such as Ehad Ha'am, who insisted that the Balfour Declaration recognised Palestine as a national home for the Jews, yet understood that the only way to establish a Jewish national home in Palestine was to give a national home to the Arab Palestinians as well. This was also true for Yehuda Leib Magnes, who opined that the Zionists should give up the Balfour Declaration in light of its consequences. The idea of co-existence must be based on equality. If Jews want to establish their national home in Palestine, they must respect the people already inhabiting it. Another opinion was that of Yosef Haim Kastell of Hebron, who suggested to Haim Weizmann that Arab Palestinians needed to be cared for and their needs taken into consideration. He practically suggested urging Britain to issue an additional Balfour Declaration according to which Palestine would also be the national home of the Palestinian Arabs.

The Jewish voices that suggested amending the Declaration, as well as the Arab opposition to it, were silenced and ignored. However, today most historians would agree that the Balfour Declaration was a crucial moment in creating and shaping the Zionist-Arab conflict. Its notion of Jewish domination in Palestine put an end to the idea of a shared homeland. Back to our main argument: although Palestinian and Arab experts in international law have argued that the Mandate was legally invalid, their main argument is that the Mandate and the Balfour Declaration were based on power and oppression, rather than ideas of justice, and this by itself invalidated these documents.

Managing Dangerous Populations: The Legacies of Census Categories in Mandatory Palestine

Dr Yael Berda, Sociology and Anthropology, Hebrew University of Jerusalem

Dr Berda began by emphasising that administrative practices and technologies and their epistemic and practical effects are not only the outcomes of political decision making. They are more than the means, procedures, and institutional arrangements according to which modern states manage populations. Administrative practices have an important role in shaping legal categories of political membership. An example is the practices of the British Mandate government in implementing the Palestine Mandate, particularly Articles 4 and 6, which also impacted upon population management and institutional relationships within government after Israel became independent.

The practices during the Mandate created the political struggle between the Jewish Agency and the Jewish National Fund, the Bureau of Statistics and the Ministry of Interior. Census categories in Mandate Palestine reflected the rapid change in political conditions that occurred between the Balfour Declaration, stating Britain's commitment to building a ‘Jewish national home’ in Palestine in 1917, and the Arab Revolt in 1936. During these two decades, British colonial strategy for population management changed numerous times.

The census was a major bureaucratic battleground for interpreting the Mandate. In 1931, in the questionnaire schedule for the enumerators, a new classification was added to citizenship, religion and sect. After entering a person's citizenship, the enumerators were instructed to add ‘Jew’ or ‘Arab’ for persons so describing themselves. National identity had clearly become a subjective question of affiliation. This represented a change from objective classification according to religion. The binary path led to concerns among Zionists and Arabs alike. It resulted in the establishment of two advisory subcommittees for the census, one Jewish and the other Arab. The Jewish subcommittee was adamant that questions of landlessness and unemployment should be avoided in the census, as these would expose the extent of the land acquisition process and could jeopardise the entire Zionist project.

The census of 1931 was a highly contested project in the eyes of Palestinian communities as well as of the Zionist leadership of the Jewish community. For the government of Palestine, the census was an exercise in maintaining the authority of British rule, and in managing recalcitrant parties that did not seem to appreciate the need for statistical information as a way of benefiting the progress of the state.

Two legacies of the Mandate were crucial in shaping population management after independence: the legacy of cooperation between the Mandate and the Jewish Agency, and the legacy of the binary ‘Jews’ versus ‘Arabs’ population categories, and its effects on population management by contemporary Israel's Ministry of Interior. The binary categories represented an important shift away from the Ottoman millet system that categorised people by their religion.

The battle over the census categories that surrounded the 1931 census is a tale of love, hate, statistics and boycott in Palestine. It is a way of exploring the various interpretations of managing the population of Palestine in cooperation with the Jewish Agency in accordance with Articles 4 and 6 of the Mandate.

Mandatory Land Law and its Impact on the State of Israel's Relationship with the Bedouins

Dr Sandy Kedar, Law, University of Haifa

Dr Kedar opened by noting that his presentation was based on a book project in progress, written with Ahmad Amara and Oren Yiftachel, titled Terra Nullius in The Negev? Indigenous Bedouin Land and Contested Legal Geographies of Southern Palestine/Israel. He then moved to offer a short overview of scholarship on critical legal geography of settler societies on the basis of a book he had co-edited (The Expanding Spaces of Law, Stanford University Press 2014). He stressed that expropriating indigenous lands does not always involve the use of physical force. The real conquest often takes place in papers, maps and the law, all used together as an organised process of denial and forgetting.

He then offered a short overview of the demographic and spatial changes that took place after 1948 in the Negev. Until 1948, between 70,000 and 95,000 Arab-Bedouins had lived in the Negev, most of whom were expelled or fled the violence of 1947–48; about 13,000 remained in the Negev. Today, they number about 220,000, with approximately half living in unrecognised villages.

As is typical with settler societies, the Israeli state created a legal doctrine which facilitates settlement and land nationalisation. It employed land settlement through the Torrens titling system as a way of erasing past rights. It is one of the tools that Israel inherited from the British Mandate administration. The Israeli Supreme Court also played a role in land nationalisation.

By describing Bedouin villages as ‘open areas’, in a way that leads them to become transparent, the state deprives them of protection. The reality is that approximately 110,000 Bedouins live in unrecognised villages (in addition to another 110,000 Bedouins living in recognised communities).

By 1948, the British had registered five million dunums of land in Palestine. The State of Israel continued the settlement process in the Negev in the 1970s. In parallel with the transfer of Bedouin tribes to particular areas in the Negev, Israel adopted the ‘Dead Negev Doctrine’, which is a method similar to that used by other settler societies. The legal logic of the doctrine resembles that of terra nullius, thus allowing Israel to carry out land nationalisation.

The state argues that it is protecting public interests and that it is maintaining legal continuity from the Ottoman and British regimes. It maintains that until recently the Negev was almost empty; that the Bedouins were nomadic tribes who had never enjoyed any legal autonomy and did not register their mewat (dead) lands when they had the opportunity to do so (by no later than 16 April 1921).

As far as legal continuity is concerned, the British did, in fact, continue to register mewat lands after 1921 and recognised the Bedouins’ land rights in the Negev. Furthermore, Jews acting in their private capacity and Zionists organisations (such as the Jewish National Fund (Keren Kayemeth LeIsrael)) bought approximately 100,000 dunums of land from Negev Bedouins before the establishment of Israel. According to the Israeli interpretation of intertwined Ottoman and British Mandate laws, unauthorised possession of mewat land constitutes trespass, regardless of how long the land is held. The state claims that the Negev lands were unsettled in the second half of the nineteenth century and the beginning of the twentieth century, and hence should be classified as mewat. Since the Bedouins were nomadic tribes who did not engage in cultivation, the argument goes, the only possible legal conclusion is that the Bedouins have no rights in the ‘dead’ Negev desert.

As is illustrated in detail in a co-written article, ‘Re-Examining the “Dead Negev Doctrine”: Property Rights in Arab Bedouin Regions’Footnote ¹ (with Oren Yiftachel and Ahmad Amara), the Israeli interpretation of British Mandate laws, jurisprudence and practice was only one of a range of possible interpretations. The interpretation chosen by Israeli legal actors was that which most limited the potential rights of Bedouin landholders, leading to their definition as trespassers. Other legitimate interpretations were ignored, thereby leading to a simultaneous Bedouin dispossession and its denial.

The Legal Relevance of the Mandate for Palestine to the Israeli–Palestinian Conflict: Mapping the Debate

Professor Yaël Ronen, Law, Sha'arei Mishpat Academic Center for Law and Science and Minerva Center for Human Rights

Professor Ronen canvassed the contexts in which legal arguments have been based on the Palestine Mandate, and considered why specifically the Mandate was being invoked. She began by examining the references to the Mandate in Palestinian arguments. The ‘traditional’ Palestinian position has been a rejection of the Mandate as altogether illegal. Perhaps the strongest legal objection to the Mandate was that of Henry Cattan, who represented the High Arab Committee before the United Nations in 1947, and later presented his view in academic literature. He argued that the Mandate violated the right of the Palestinians to self-determination, sovereignty and independence. Its administration was also illegal, because it allowed immigration which modified the demographic composition of the population in the territory of Palestine, and no self-government institutions were created despite the legal provisions to that effect. A similar view was expressed in a colloquium of Arab jurists which took place in Algiers in 1967. They concurred that the provisions of the Mandate relating to the national home for the Jewish people (Articles 2, 4 and 6) were invalid, but held that otherwise the Palestine Mandate had legal effect.

The question arises why the (in)validity of the Mandate (and other documents) was of interest in the 1960s and 1970s, when so much legal water had passed under the bridge. Cattan himself said that his case was not academic. The argument about the Mandate was part of a wider argument: that every legal and practical step in the path to Israel's independence was unlawful. Cattan therefore demanded that ‘right and justice’ be restored, through the dissolution of Israel.

By the twenty-first century the main question is not whether Israel may exist or not, but whether Palestine does, and the Mandate is once again being invoked. In 2010, John Quigley published The Statehood of Palestine,Footnote ² in which he aims to demonstrate that Palestine became a state in the Mandate era, albeit without independence. Quigley finds support for the existence of Palestinian statehood in the League of Nations Covenant. In light of Article 80 of the UN Charter, which provides for the continuation of rights acquired under the mandate system, Quigley concludes that Palestine continues to be a state. Querying why it was important for Quigley to ground Palestinian statehood in the Mandate rather than, for example, in the PLO's 1988 Declaration of Palestine in Tunis, Professor Ronen suggested that the answer was related to the international norms relating to statehood and occupation: if the West Bank and Gaza Strip (where Quigley locates the state of Palestine) already constituted a state of Palestine in 1967, the Israeli occupation could not extinguish its statehood.

Moving to use of the Palestine Mandate in Israeli argumentation, Professor Ronen noted that prior to and immediately after Israel's Declaration of Independence it is difficult to find statements which refer to the Mandate as a source of legal right to statehood or to a national home. In 1947, appearing before the UN Special Committee on Palestine (UNSCOP), Ben Gurion used cautious terminology, speaking of a ‘promise’, ‘justice’ and ‘equity’. In Israel's Declaration of Independence, what is attributed to the Mandate is a reflection of ‘humanity's consciousnesses’. In contrast, jumping forward to 2012, the Levy Report states that, by approving the Mandate, the League of Nations ‘recognized, as a norm enshrined in international law, the right of the Jewish people to determine its home in the Land of Israel, its historic homeland, and establish its state therein’.

However, Professor Ronen distinguished the non-reliance on the Palestine Mandate to ground the right to statehood from its role as a legal basis for the rights of immigration and settlement. Zionist agencies clearly relied on the Mandate as a source of legal rights with respect to immigration and settlement under Article 6 of the Mandate in March 1948 when speaking in the UN Security Council. Also, appearing before UNSCOP, Ben Gurion spoke of Britain preventing immigration as ‘force being used against people exercising their rights’ (emphasis added) and Sharett notes that the 1939 White Paper ‘violated the Mandate’.

Upon Israel's independence, reference to Article 6 of the Palestine Mandate ceased. This is not surprising: the state had come to exist, and immigration and settlement were within the new state's sovereign powers and no longer required any international approval. They re-emerged in the 1970s with regard to settlement in the West Bank and Gaza Strip. In 1979, Eugene Rostow opined that since Jordan and Egypt have never had sovereignty over the West Bank and Gaza Strip, these areas remained Mandate territory until sovereignty was established. Since, in his words, Article 6 of the Palestine Mandate ‘granted [the Jews] the right to … settlements’, he concluded that the UN as trustee must allow settlement.

A quarter of a century later came Judge Levy's dissent in the disengagement ruling, Gaza Coast Municipality, in 2005. Judge Levy stated that the main commitment under the Palestine Mandate was to realise the Balfour Declaration and that the means to do so was, inter alia, by settlement. He also stated that the right to a national home consists of two aspects: the right to immigrate and the right to settle. Judge Levy concludes that ‘the right of Jews to settle in Judea, Samaria and the Gaza Strip derives from the same source that granted Jews the right to settle in Naharia, Ashdod, Ramla and Lod’.Footnote ³ What the Judea and Samaria settlements have in common with the other places is that they are all within the territory of Mandatory Palestine but outside the Jewish state envisaged by the 1947 Partition Plan, but the latter locations are within Israel's internationally claimed and recognised territory. By equating the Judea and Samaria settlements with them, Judge Levy eliminated Israel's independent existence as a relevant factor in determining its rights over territory.

The Levy Report of 2012 makes a similar, if less elaborate, proposition. The report states that what Israel did in 1967 was to restore the legal status of the territory to its original status – that is, ‘territory designated to serve as the national home of the Jewish people’. It states that Israel chose not to claim sovereignty over the territory but has allowed Israelis to live in the area voluntarily, a policy which is not unlawful under international law.

Again, asking why is it important to revert to the Palestine Mandate as a source of rights, Professor Ronen held that the assertion that the West Bank is Mandated territory serves a number of goals. First, it supports a territorial claim that, like Quigley's claim regarding Mandate-based Palestinian statehood, appears invincible. If Mandatory Palestine is designated to serve as the national home for the Jewish people, no adverse possession or claim can detract from that right: neither Jordan's possession of it in 1948, nor later Palestinian claims to a state. Second, to the extent that the present controversy revolves specifically on the legality of the settlements and the prohibition under Article 49 of the Fourth Geneva Convention, the invocation of an explicit provision calling for settlement means that the conflict is not between a legal norm and a contrary policy, but between two contradictory legal norms.

In conclusion, Professor Ronen observed that one would expect that what one side of a conflict embraces, the other would reject, and vice versa. Surprisingly, however, supporters of both Palestinian statehood and Israeli expansionism have, in recent years, turned to the Mandate for support.

The Right to Self-Determination and the 1922 League of Nations Mandate for Palestine

Professor Robbie Sabel, Law, Hebrew University of Jerusalem

Professor Sabel first questioned whether under international law the League of Nations was authorised to ‘dispose’ of Palestine. He pointed out that the legal basis of the arrangements was the authority granted by international law to Britain and France as the victorious powers in the First World War and not any supranational power of the League of Nations. Under international law, certainly as it was at the time, Britain and France were entitled to sovereignty over those parts of the Ottoman Empire they had occupied during the war; in the Treaties of Sèvres and Lausanne Turkey renounced, in favour of Britain and France, any claims it had over the Ottoman Empire. It was thus Britain and France who had the power to dispose of the Ottoman Empire, including Palestine. It was, again, Britain and France who decided not to turn the territories at issue into British and French colonies but rather to administer them in accordance with a Mandate to be issued by the League. Britain and France, of course, drafted this Mandate themselves. Therefore, the Covenant of the League of Nations granted the League no rights of sovereignty over territories or power to determine sovereignty of the former Ottoman Empire. This legal situation is reflected in the wording of the Preamble to the Palestine Mandate.

Professor Sabel then proceeded to discuss the principle of self-determination as ‘the act by which a people determine its future international status and liberates itself from “alien” rule’. He noted that although the right to self-determination was famously declared in UNGA Resolution 1514 in 1960 and in the 1970 UN Declaration on Friendly Relations between States (UNGA Resolution 2625), there is no agreed definition of a ‘people’. There was one delegation to the Third Committee of the UN General Assembly which suggested that ‘whenever a people became conscious of being a people, all definitions were superfluous’.

As for the evolution of the concept of self-determination, he noted that it is the near unanimous opinion of jurists that in 1922 the principle of self-determination was indeed an accepted political principle applied in some cases, mainly with regard to the former Austria-Hungarian Empire. However, it was not accepted as a binding principle of international law until after the Second World War, and even then with the qualification that the principle should not authorise or encourage ‘any action which would dismember or impair totally or in part, the territorial integrity or political unity of sovereign and independent states …’ (UNGA Resolution 2625 (1970)).

There is little dispute that at the end of the First World War self-determination was not yet a legal principle. Cattan himself writes that in 1917 ‘self-determination was, at best, a political principle’ and Feinberg also reaches the conclusion that it was a purely political factor.

Interestingly, Wilson's ‘Fourteen Points’ do not refer explicitly to a right of self-determination, and only in 1918 did Wilson begin to use the phrase ‘self-determination’. Although he declared that ‘[s]elf-determination is not a mere phrase, it is an imperative principle of action which statesmen will henceforth ignore at their peril’, the phrase does not appear in the Covenant of the League of Nations. In fact, in an earlier draft presented to the Versailles Conference in 1919 Wilson explicitly used the phrase ‘the rule of self-determination’ but Wilson himself dropped the phrase from a later draft. Inis Claude comments that ‘[t]he principle was convenient in that it assisted during the war to weaken the resisting power of Germany's allies’ and that ‘in no case was national self-determination recognized to the detriment of the victorious allies’.

The Covenant of the League contains no explicit reference to self-determination. However, Article 22 of the Covenant resolved that ‘[c] ertain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory’ (emphasis added) (The A Mandates). To these communities ‘… there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant …’ (emphasis added). On this basis Feinberg held that the League of Nations reached the conclusion that it was in the interest of humanity that a solution be found for the national problem of the homeless Jewish people.

Turning to the 1922 Palestine Mandate, Professor Sabel noted that it referred to ‘a national home for the Jewish people’ and to the obligation on Britain to ‘secure the establishment of the Jewish national home’; its reference to the Arab population was to ‘the civil and religious rights of existing non-Jewish communities in Palestine’. As Stone commented, the Palestine Mandate studiously avoided referring to their political rights or political standing.

The Preamble to the Palestine Mandate repeated the text of the 1917 Balfour Declaration and the question arises whether the phrase ‘national home’ implied self-determination. The phrase ‘national home’ was in fact suggested to the British government by the Zionist Federation, following earlier references to ‘internal autonomy of the Jewish population in Palestine’ and, even earlier, to ‘a temporary British protectorate’.

The 1937 Peel Commission found that the words ‘the establishment in Palestine of a national home’ were

The Commission noted that Lloyd George, who was Prime Minister at the time, informed it that the idea was that a Jewish state was not to be set up immediately by the peace treaty without reference to the wishes of the majority of the inhabitants.

The Commission concluded that the government evidently realised that a Jewish state might in course of time be established, but it was not in a position to say that this would happen, still less to bring it about of its own motion.

Another question is the geographical extent of the promise of a ‘national home’. The draft presented to the British government by the Zionist federation used the phrase ‘Palestine should be reconstituted as the National Home of the Jewish people’. This phrase was changed by Sir Alfred Milner, the British War Minister to ‘the establishment in Palestine’ of a national home for the Jewish people. This phrase remained in the text. It enabled the British government to maintain its position that not the whole of Palestine was promised as a national home. The area of Transjordan was, at the request of Britain, excluded from the area destined for a Jewish national home by a 1922 decision of the Council of the League of Nations.

Turning to the Arab view, Professor Sabel said that the claim of Palestine's indigenous Arab inhabitants to self-determination was based on effective occupation and continuous habitation, whereas the Zionists’ claim was aligned with British imperialism. The Jewish people were not a ‘people’ for the purpose of international law, and lacked any collective connection with territory. Victor Kattan reasons that both Palestine's indigenous Jewish and Arab inhabitants had a claim to Palestine on the basis of the principle of self-determination. However, in the event of conflict between the interests of the two communities, international law would give precedence to the interests of the original and indigenous inhabitants over those who had recently migrated there from overseas. He adds that the Balfour Declaration did not apply to the whole of Palestine. Rather, the national home was to be established in Palestine.

Professor Sabel noted that the British attitude to self-determination was cynical in the extreme. Charles Hardinge, Permanent Under-Secretary of State for Foreign Affairs, wrote in an internal memo in 1920 that ‘the programme of “self-determination” is in full swing everywhere, and we must make the best we can of it’. Balfour wrote to Lloyd George on 19 February 1919:

Effectively, Arab self-determination in Palestine was being temporarily postponed so as to give the Zionists an opportunity to create their home. Chaim Weizmann was aware of this problem and he wrote, prior to the 1920 San Remo conference, to Robert Vansittart:

Professor Sabel concluded that self-determination was not a legally binding principle at the time of the adoption of the Palestine Mandate, but it was accepted as a political matter. The objective of the Zionist movement was self-determination, but for political purposes it used the term ‘national home’. The Arab population perceived Zionism as an infringement of its rights to self-determination as the majority in Palestine. The British made a decision to grant self-determination to most of the Arab population in the former Ottoman Empire, but to defer self-determination in Palestine until the Jews became the majority and could form their own national home.

Desuetude and the MandateFootnote ⁴

Professor Yuval Shany, Law, Hebrew University of Jerusalem

Professor Shany said that a discussion of the Mandate's relevance today raises two issues of the temporality of international law. The first is how to deal with changes in law when evaluating the legality of past events. The arbitration of the Island of Palmas case distinguished between questions relating to the creation of rights under international law, where the relevant body of law is that which existed at the time of the events in question, and matters such as the continued existence of certain rights which may be affected by subsequent changes in the content of the law. For instance, the principle of self-determination has gone through very dramatic changes from 1922 to 2016. On one hand we must be careful not to apply it retroactively to the creation of rights, but we may have to apply some of the developments to evaluate the continued existence of some rights or the emergence of rights which did not exist at the time.

A second temporal tension is when facts and legality diverge. One view is that no valid right derives from an event which originated in a wrong; the opposite approach maintains that factual changes over time may cure an originally flawed title. We have in both domestic law and international law rules which exemplify both approaches and the discussion of their application in specific situations must involve contextual issues – the time period, the ramifications of reinstating a factual status quo ante, and the reaction of the relevant parties or third parties.

In his leading text, The Creation of States in International Law, Professor James Crawford raises three questions regarding the creation of the State of Israel: (i) the legality of the 1922 Mandate under international law; (ii) the effect of the Partition Resolution under international law and, as a result of these two preliminary questions, (iii) the validity of the creation of Israel in 1948 under international law.

Professor Shany noted three main objections to the validity of the 1922 Palestine Mandate, which clearly favoured the interests of the Jewish community. One is a breach of Turkish sovereignty, which Crawford quickly dismisses, stating that Turkey had lost the war and relinquished the land. The second is the infringement of the sovereign rights of the indigenous population, an argument which is hard to reconcile with the state of international law at that time and the lack of a strong sense of self-determination. A third, and the most serious contention against the validity of the Palestine mandate, is that it was a violation of the Covenant of the League of Nations, which introduced the mandate system as a way of implementing the Versaillesian notion of self-determination, as a sacred trust of civilisation. Professor Shany noted that Crawford deals with the issue on a somewhat technical level – namely that, in the absence of a procedure under the Covenant according to which ‘unconstitutional’ decisions of the Council could be struck down, their legality stands. Professor Shany suggests that the authoritative interpretation idea is perhaps more appropriate – namely that the implementation of a treaty by a body which is entrusted with implementing it constitutes an important and maybe an authoritative source of interpretation. The argument could be made that the conduct of the Council of the League of Nations with respect to the Palestine Mandate is not a violation of Article 22 but a construction of self-determination at that time. Another aspect of Article 22 was to design the conditions under which the inhabitants of a territory could govern themselves. From that perspective, a project in which a group of inhabitants – even a minority, but which could over time become the majority – is empowered because that group could attract capital and skilled personnel into the area, falls within the logic of Article 22. It can be said that between 1917 and 1922 it was not as clear to the drafters of the Covenant as much as it is clear now that this process of empowering minorities at the expense of the majority might infringe the right to self-determination, and it was believed that the development of Palestine in this way would be beneficial for all populations.

As for the Partition Resolution, Professor Shany noted Crawford's view that the partition plan did not create a legally binding outcome because it was adopted before the termination of the Mandate and, according to Crawford, the only way in which the UN could have validly disposed of the territory at that time was by agreement with the Mandatory power, which did not exist. Professor Shany criticised this as a formalistic argument which could be a recipe for catastrophe, since the logic of transition is to make arrangements before the expiration of the regime. He offered other grounds to doubt the legal effects of the Partition Resolution, primarily its language and its use of the term ‘recommend’.

The final issue which Professor Shany examined in Crawford's analysis was the establishment of the State of Israel. Crawford takes the view that the termination of the legal Mandate has created a sovereignty vacuum which could have been filled by lawful and effective exercise of control over the territory. Crawford disagrees with the determination that Palestine was terra nullius, but concludes that under international law as it stood in 1948 self-determination was an emerging principle which, under the particular circumstances of Palestine, could plausibly be realised through partition. He considered that Israel validly seceded from Palestine, invoking the right to self-determination, using lawful and effective control. Professor Shany expressed doubt about the secession theory. Israel did have a claim, partly because the Jewish national home was realised in territories over which the Jewish population had effective control. However, the other party also had a right to exercise the right to self-determination and, to the extent that a Palestinian state had been created in 1949 in the areas of Mandatory Palestine, the same logic that Crawford applied with regard to Israel would apply to validate the rights of that unit under international law. The question of who seceded from whom is important, for instance, to determine title over areas in the pre-1967 no-man's lands between Israel and Jordan. It also affects whether the Arab occupation of 1948, especially in the old city of Jerusalem, can be regarded as a lawful and effective exercise of control.