Sunday, September 18, 2011

Who actually has legal rights to Palestine? Part 1

With all this media frenzy about the Palestinian unilateral state bid at the UN this coming week, does anyone ever stop to think whether this move will have any legal ramifications? What's more, does anyone even care what previous commitments state and what they oblige their parties to uphold?

Well, the Mainstream Media (MSM) sure doesn't. Furthermore, President Abbas knows very well that the MSM has a selective amnesia when it comes to these subjects, and he exploits that to the max.
Why yes, contracts are legally binding. Unless you signed a contract with Israel obviously.

Points to keep in mind which we'll be developing in this post:
  • United Nations General Assembly Resolutions are not legally binding.
  • Rights in regards to Jews and Arabs in Palestine were created in International law during the British Mandate of Palestine (in other words, a long time ago)
  • United Nations Security Council Resolution 242 does not call for the return to 1967 borders
  • Israel and the Palestinian Authority signed legal agreements, or contracts, which give both parties not only rights but also obligations.

United Nations General Assembly Resolutions are NOT legally binding.

Wait, what? No way.

Well yes. In their own words: The General Assembly is not a world government - its resolutions are not legally binding upon Member States.

That can't be right, can it? Then what the hell are they useful for? Not much really Actually yes it's right, and again in their own words: However, through its recommendations it can focus world attention on important issues, generate international cooperation and, in some cases, its decisions can lead to legally binding treaties and conventions.

But then what's the deal with resolution 181, the Palestine Partition Plan? Why do we get all teary eyed when recounting the votes, and even name streets after that fatidic date of 29th November?

First of all, because it was a kick-ass resolution! Even if for just one ephemeral moment, everything seemed perfect. And it could have been, had the Arabs accepted the partition plan.

But from a legal point of view?
Resolution 181 in the United Nations General Assembly in 1947 paved the way for the rebirth of the state of Israel in 1948. However, did this give Israel legitimacy?
The answer is “No”.
Generally speaking in International law, General Assembly resolutions are not binding.
It’s a white myth, there’s absolutely no truth that Israel’s legal foundation is based on the UN partition resolution of November 1947.
If the Jewish people and the Arabs had agreed to enter into a treaty based on the terms of the resolution, then rights and obligations could have been created in international law. But that didn’t happen.
This is like finding out your parents never got married. We're an illegitimate child then? Where do we find our legitimacy?

Rights in regards to Jews and Arabs in Palestine were created in International law during the British Mandate of Palestine (in other words, a long time ago)
The legal foundation of modern Israel really is initially traced back to the period right after the first world war, when the great powers at the time and the League of Nations, which was the UN of that particular period, had decided what’s going to happen to various former enemy territories.
In case you need reminding, up till the end of WW I, Palestine was part of the Ottoman Empire, who were on the losing side of that war. That war also brought about the establishment of the League of Nations.

Many people believe that Israel's claims to legitimacy exist only thanks to a short little note which we now know as the Balfour Declaration of 1917. That may have been what ignited it all, but Israel's right to exist is based more on just this.

In April of 1920, there was the San Remo Conference, which was attended by the four principal Allied powers of World War I, namely Britain, France, Italy and Japan. It determined the allocation of mandates on territories in the Middle East previously belonging to the Ottoman Empire.
The precise boundaries weren't yet specified, to be finalized only four years later. The conferences decisions were only finally confirmed by the Council of the League of Nations in 1922, and Turkey accepted the terms in 1923.
It’s in this place that the leaders with the powers to make binding dispositions with respect to the Ottoman territories deliberated and made the decision, having heard claims from the Zionist Organization [...], having heard submissions from the Arab delegations in respect to what they wanted in the Ottoman territories, having heard these submissions, a group of them gathered here, and made final binding decisions in international law as to who would get what. At San Remo, that what had been exclusively a British approach, received the full backing of the international community.
And in that sense, Israel’s legitimacy is linked to an international decision at San Remo, and not just a whim of British policy.
And what binding decisions were made in San Remo?
In the 1922 Palestine Mandate, the League of Nations together voted on a very special resolution. It decided that they would give recognition to the historic rights of the Jewish people. To do what? To reconstitute their national home. If you look at that language, you see two things. You see they are recognizing a pre-existing right and not creating a new right. In other words, the historical rights of the Jewish people to this land were recognized by the great powers of the time. By the equivalent of the UN at the time.
It was the Jewish people that were chosen to be the beneficiaries of a trust, a mandate, under the care of the British government, in respect to Palestine. It was the Arab inhabitants of the territories of Mesopotamia (Iraq now), Syria and Lebanon that were chosen to be the beneficiaries of a trust or a mandate; part of it under the trusteeship or mandate of the French, in Syria and Lebanon, part of it under British supervision, Mesopotamia.
I want to underline that the primary objective of the Mandate for Palestine was to grant political rights in respect to Palestine to the Jewish people.
The civil and religious rights of the Arabs as individuals were fully protected in the mandate document; but insofar as the national and collective rights, and the collective political rights, we’re concerned these were reserved exclusively for the Jewish people, because the Arabs were given those same rights not in Palestine but in the neighbouring countries. And that is why today you have 21 Arab states, and one Jewish state.
Mind you, the Palestine of 1920 was not the Palestine of 1922. Here's a little reminder of how the Middle East was subdivided between Great Britain and France at San Remo

In September 1922 the Council of the League of Nations recognized Transjordan as a state under the British Mandate and Transjordan memorandum excluded the territories east of the River Jordan from all of the provisions of the mandate dealing with Jewish settlement. So while at the San Remo Conference in 1920 "Palestine" meant that whole purple blob, by 1922, a big chunk of the blob (76%) had become the Hashemite Kingdom of Jordan. The Jews would be left with 24%.
The second world war brought about the demise of the League of Nations. It was superseded by the United Nations in 1945. How does this affect the rights of the Jewish people under international law?
In their final resolution passed by the League in April of 1946, it is specified that the intent is that after the dissolution of the League it is necessary to continue to look after the well-being and development of the people concerned in each mandate. For Palestine, that meant the Jewish people.
Article 80 of the Charter of the United Nations:
“Nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any States or any peoples.”
 In November of 1947 came the already oft-discussed Partition Plan. As said before, it was not legally binding, and seen as the Arabs did not use this resolution as a launching pad for a treaty with the Jews, nothing really came of it.
In fact, it was so not legally binding that when, during the war of independence in 1948-1949, Jordan's Arab Legions crossed the Jordan river and occupied the West Bank and East Jerusalem, the UN did nothing about it.
Not even protecting the status of Jerusalem, which according to the resolution should have been an International city. Excellent move UN, thanks to you no Jews were allowed into Jordan occupied Jerusalem and West Bank for nineteen years.

Ooh ooooh, did you know that when there are armistices (such as between Israel and Jordan in 1949), there are armistice treaty agreements involved? And yes, they are also binding legal contracts with, yes, rights and obligations, oh my!
The green line is simply an armistice line, the line chosen between Israel, the Jewish people, and the Jordanians, when they stopped fighting in 1948-1949. That line, it is specified in the treaty agreement between Israel and Jordan, was never intended to be for anyone the source of rights and obligations. “It is also recognized that no provision of this Agreement shall in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question, the provisions of this Agreement being dictated exclusively by military considerations.” – Article II of the General Armistice Agreement between Israel and Jordan – April 3, 1949
You know what this means? That when people say "the 1967 borders" they're just saying a string of words that actually have no meaning whatsoever.
Following Israel’s statehood in 1948 the country was invaded by five Arab armies intending to destroy the Jewish state. The eastern part of Jerusalem was annexed by Jordan. The city was divided for nineteen years. Jordan’s sovereignty over the West Bank and Jerusalem was never recognized by the United Nations. In 1967, Israel recaptured East Jerusalem in a war of defence and later annexed it.
We all know what came after this, right? The often misquoted and very much misunderstood UN Security Council Resolution.

All this will be discussed in the upcoming part 2 of this post.
Stay tuned!

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