ISRAEL
 JURIST >> WORLD LAW >> Israel >> The Legal Boundaries of Israel... 
覧覧覧覧覧覧覧覧覧覧覧覧覧覧
 COMMENTARY AND ANALYSIS

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エ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 電isclosure of harboring a bias that favors Israel in the opening paragraph of his essay, Mr. D但mato痴 actual bias against Israel is clearly apparent in his concluding paragraph, which he labels 鼎omment. Why does Mr. D但mato 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 努ith enthusiasm the Saudi proposal. The Saudi proposal includes the 途ight of return of Palestinians to 的srael proper, not the West Bank or Gaza. To the Arabs (Palestinians and others), this 途ight of return means 途estoring 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但mato seems to advocate, would be, on the part of Israel, imprudent to say the least. Why doesn稚 Mr. D但mato assign any blame to Yasser Arafat, who in 2000 balked at a proposal made to him by Israel痴 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痴 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 菟icking 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但mato痴 essay could have been something worthy of dissemination had it not contained that ridiculous personal opinion (labeled 鼎omment) which stands in sharp contrast to the rest of his seemingly objective research. Unfortunately, rather than lending credence, his 鼎omment 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エ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エ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痴 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但mato痴 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但mato痴 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 撤act) 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 (填N) General Assembly Resolution (敵AR) 181, the UN made it clear (ァ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但mato 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但mato 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 (填N SCR) 242, it does nothing to diminish the applicability of UN GAR 181 in my opinion. The relevant provision of the resolution is 套 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但mato痴 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痴 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但mato 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痴 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痴 agreement, the argument that Palestinians consented to the armistice line seems moot. 3. At the time of Jordan痴 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痴 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痴 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痴 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痴 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痴 view of Jordan痴 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但mato 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但mato 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但mato痴 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但mato痴 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 的srael痴 Air Strike against the Osiraq Reactor: A Retrospective (10 Temple International and Comparative Law Journal 259 (1996)), Professor D但mato argued that the Security Council is not a world legislative body and, therefore, is not empowered to create international law. Professor D但mato further argued that the Security Council resolutions are merely the expression of opinion of its members, and, therefore, are 渡ot constitutive of international norms. A question to Professor D但mato 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但mato referred to in his comments above. The article, which I recommend to others in this forum, outlines the complexity of the 宋irtual 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但mato痴 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痴 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痴 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但mato痴 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但mato 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但mato to elaborate further on the statement that UN GAR 181 is an 疎uthoritative 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 妬nviolate borders was predicated on the assertion that Great Britain痴 殿pproval 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 妬ntending some vague 殿cquiescence 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痴 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 logical result of the longevity of resolution 181 would indeed be that the "Arab" portion of Palestine is still a UN Mandate. But is there such a thing as a UN Mandate? Who is the mandatory? Jordan? If so, Britain violated Article 5 of the Mandate: "The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any way placed under the control of the Government of any foreign Power". The cession to the PLO fails on the ground that Jordan acquired the West Bank by the use of force. The only sound proposal is that put forward by Tal Libnan: Israel has the right (and maybe the duty) to cede the territory of the (former?) mandate to the Palestinians.

    Jari
    Nousiainen
    Finland

  • Wednesday June 12, 2002 at 8:35 pm
    Contrary to popular opinion, Jordan's territorial gains in 1949 were not part of an imperialist land-grab or an act of aggression. They came about as a result of a legitimate peace proposal by the official UN mediator, Count Fokke Bernadotte. The Count came to believe that most Palestinians did not want independence, but wanted to be part of Trans-Jordan. Accordingly, he came up with a new partition plan that was a modification of UN Resolution 181. Under its terms, Israel would trade the Negev desert for the Galilee region, and also gain a corridor to Jerusalem. The two states would become contiguous territories, and the Arab state would then be annexed to Trans-Jordan. But while conducting negotiations to put this proposal into effect, Bernadotte was assassinated by a member of the Stern Gang. The Count's plan became the basis for the armistice agreements that were negotiated by Ralph Bunche, albeit in a slightly different form in which Israel kept the Negev, and Egypt was given administration rights in Gaza. King Abdallah I of Jordan planned to convert the armistice treaty into a formal peace treaty, but before he could do so, he was assassinated by a Palestinian extremist. (Abdallah's grandson and succesor Hussein, personally witnessed the assasination and was nearly its second victim.) In ensuing years, Jordan did not sponsor the fedayeen terrorists who continued to use the west bank as a base from which to attack Israel. Israel's reprisals, including the controversial raid on the west bank village of Es Samu in late 1966, led to a popular uproar in Jordan, and caused Jordan to join the Arab side in the six-day war, shelling Israel with artillery fire. Israel responded by taking over the entire west bank during the 1967 war. Ironically it is now the PLO who now stand to gain 95 percent of the west bank in a peace treaty, even though it was they, rather than Israel or Jordan, who were primarily responsible for the breakdown of the armistice accords in 1967.

    Mike Anderson
    Toronto, Canada

  • Thursday June 13, 2002 at 3:56 am
    I think your viewpoint has some merit as far as it goes. The problem is that none of the points that you raised is not legal. First, the key players get killed before they can achieve their objectives. The unfulfilled objectives do not count. Second, I wouldn't trust Jordanians to invade the West Bank in 1948 just because they were so enthusiastic about Count Bernadotte's plans. There would have been better ways to show their enthusiasm. The bottomline is that they openly threatened the existence of the Israli state that was created on the basis of UNGAR 181. Third, Jordan may not have sponsored the fedayeen terrorists, but the point is that they used the Jordanian territory and that is all that was needed to make it Jordan's problem, which would seem to justify the Israeli raid in 1966.

    Jari Nousiainen
    Finland

  • Friday June 14, 2002 at 7:54 am
    Jordan's rationale for construing herself as THE Palestinian state was very weak (since there already was another one). But her rationale for construing herself as A Palestinian state, and hence entitled to rule territory within the former mandate, was very strong, particularly since she herself had once been part of the Palestine mandate. If Israel had never occupied the west bank in the first place, why would Jordan ever have ceded it to the PLO, since this would only give Israel a legitimate reason to invade it? The case for Israeli occupation of the west bank as part of a defensive effort against the Arab aggression of 1967 is not as ironclad as some might think. Egypt, Syria and the PLO had violated the armistice by sponsoring terrorism against Israel, but Jordan had not, and Secuity Council Resolution 228 had condemned the raid on Es Samu. A good legal case could be made that a formal peace treaty should award the west bank to Jordan, and not to the PLO, (even though Jordan now insists she doesn't want it!)

    Mike Anderson
    Toronto, Canada

  • Friday June 14, 2002 at 8:40 am
    The mandate authorized the partition of mandate along the Jordan. There couldn't be a Jordanian state on both sides of the Jordan. If you accept the relevance of the mandate at all, you must admit that Israel has a stronger case for annexing the West Bank than Jordan (not to mention, as you do, the PLO). The SCR 228 condemning the raid on Es Samu can hardly be seen as a condemnation of the later occupation. The events which preceded them were quite different. And as has been pointed out, no Security Council resolution can be used to settle the border issue, even if one can try to base a more vague territorial claim on them.

    Jari Nousiainen
    Finland

  • Monday June 17, 2002 at 11:05 pm
    Great Britain was the legal administrator of the Palestine Mandate, and must be regarded as having the final say in deciding its disposal. Although she abandoned the mandate on 15 May 1948, the mandate cannot be regarded as being legally terminated until Britain transfered authority to another nation. Although she had no power to partition the mandate, it has been noted that "a sovereign state always has the power to cede portions of its territory" -- either by granting independence to them or by recognizing their annexation by a foreign power. Britain recognized Israel as an independent state on January 29, 1949, and recognized Jordan's annexation of the West Bank on April 24, 1950. These actions must be seen as repesenting the legal termination of the Palestine mandate. By recognizing Jordan's territorial claims up to the 1949 armistice lines, Britain must be said to be recognizing these lines as the legal international boundaries between Jordan and Israel. It is a legitimite question to ask whether Jordan had the right to surrender the west bank to the PLO at a time when that organization had no control whatsoever over the territory in question. The Israel-Jordan peace treaty of 1994 demarcated the "final" border between the two countries, but left the future status of the west bank as an issue which is to be determined by future negotiations (and did not even mention the PLO).

    Mike Anderson
    Toronto, Canada

  • Tuesday June 18, 2002 at 2:55 am
    You admit in your argument that Jordan is indeed a foreign power. However, Art. 5 of the Palestine Mandate explictly states: "The Mandatory shall be responsible for seeing that no Palestine territory shall be ceded or leased to, or in any way placed under the control of the Government of any foreign Power". The Mandate was no part of the British territory, therefore Britain couldn't cede it either in part or in whole except for the clear purposes of the mandate itself. As you have argued earlier, "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." Further, if the armistice lines are to be regarded as international legal boundaries, why would you want to argue that "King Abdallah I of Jordan planned to convert the armistice treaty into a formal peace treaty"? Further, if resolution 242 demanded Israeli withdrawal to the armistice line and this line is the international legal border, why should the resolution refer to the need for "secure and recognized boundaries" if the armistice line was already such a boundary? Besides, not all boundaries are international legal boundaries. If Israel has the right to annex the West Bank and Gaza, the boundaries could still remain in place. We can argue where the boundary runs, but the legal context is then quite different. On the other hand, even if we didn't recognize that resolution 181 has any relevance to the actual demarcation, Professor D'Amato may be right in suggesting that Arab Palestine could be a "UN mandate". Only, the mandatory power would be Israel! Britain abandoned the mandate so Israel would be the most probable successor, but on the other hand, the annexation by Israel is not what I would say to be the spirit of the UN resolutions. The Oslo agreements come pretty close to recognizing Israel as the mandatory power. It should encourage "local autonomy", which was one of the provisions of the Palestine Mandate (Art. 3). The Mandate can be viewed at http://www.yale.edu/lawweb/avalon/mideast/palmanda.htm .

    Jari Nousiainen
    Finland

  • Tuesday June 18, 2002 at 5:54 pm
    To further the rebuttal set forth above, I would like to add that Great Britain痴 authority as Mandatory Power originated from the Palestine Mandate. In turn, the authority of the Palestine Mandate emanated from Article 22 of the Charter of the League of Nations, which gave the League of Nations authority over the former Ottoman territories. Therefore, the source of authority underpinning the Mandate rested with the League of Nations who delegated it to Great Britain. In addition, while the Mandate is somewhat silent on provisions for its termination by either the League of Nations or the Mandatory Power, it can be argued that the Mandatory Power can indeed abandon the Mandate if it so chooses. Subsequently, responsibility for discharging the provisions of Article 22 would revert back to the League of Nations. Furthermore, given the numerous policy statements made by the British government since the Balfour Declaration, it would be unreasonable to assert that Great Britain intended for the Palestine Mandate to become the state of Israel. While Great Britain also opposed partitioning of the Palestine Mandate, I see its abstention from voting for or against UN GAR 181 as revealing of either British acquiescence to its provisions or indifference to its objectives. In addition, it would seem unreasonable to assert that Israel can become successor to Great Britain as Mandatory Power. If the Mandate survived abandonment by Great Britain, then it is clear that there were no provisions in it for the transferability of the status of Mandatory Power without the consent of the League of Nations (or the UN as its successor). If the Mandate did not survive abandonment by Great Britain, then the authority of granting another Mandate to another Mandatory Power rested with the League of Nations (or the UN as its successor). Ultimately, Palestinian Jews accepted the borders reserved for a Jewish state in UN GAR 181. Palestine Arabs did not. Accordingly and without regard to the authoritative nature of the resolution, it would seem logical to assert that either the recommendations of UN GAR 181 became moot at that point and, therefore, the authority over the entire Palestine Mandate should revert back to the UN or that the portion of land allocated to an Arab state in UN GAR 181 should have remained under the auspices of the UN. As to the argument that Israeli independence, irrespective of the stated foundation by the decalarants for such independence, constituted a territorial claim, I find it interesting and would ask Mr. Anderson to elaborate further on the basis of his argument.

    Sameh Mobarek
    Chicago, Illinois, USA

  • Tuesday June 18, 2002 at 11:18 pm
    Britain's title to the Palestine mandate did not derive from the League of Nations. Palestine was acquired by Britain from Turkey under the Peace Treaty of Severes in 1920. Individual members of the League agreed to designate certain of their territories (including Palestine) as mandates, and invited the League to assist them in seeing that the mandates were run for the benefit of their inhabitants. The Statute of the League of Nations Mandate of Palestine specifically named Trans-Jordan as being an integral part of the mandate, not a foreign power, hence it cannot be illegal for Britain to transfer territory to her. An "abandonded" mandate can hardly be any different from any other abandoned property. Legal title cannot change until the possesor formally transfers said title to another. It should be noted that Egypt IS a foreign power under the Statute, and that Britain never recognized Egypt's occupation of Gaza. It is also important to note that Britain agreed in April 1950 to recognize all of Jordan's claims in the west bank except those in east Jerusalem, because she recognized the UN mandate in the city that had been created in Resolution 181. So, if it is possible for Britain to recognize a completly non-existant UN mandate in Jerusalem in 1950, then it must be also possible for Jordan to recognize an equally non-existant Palestinian state in the west bank in 1988! The fact that Israel accepted Resolution 181 as a legal basis for her independence in May 1948 implies that she was laying claim to all of the territories allocated to her under the resolution, and the fact that Britain recognized Israel's independence in January 1949 implies that she was ceding these territories to her. The fact that Britain recognized Jordan's claim to the west bank in April 1950 implies that she was designating Jordan as the "arab state" of resolution 181, and recognizing the 1949 armistice line as the new boundary between her and Israel, superceding the boundary deliniated in Resolution 181. The Oslo accords designate the West Bank and Gaza as being a single territorial unit, and incorporate resolutions 242 and 338 within them. These resolutions define areas which changed hands in "recent conflict" as being "territories occupied" by Israel. Territories occupied by a nation cannot be regarded as being integral to her.

    Mike Anderson
    Toronto, Canada

  • Wednesday June 19, 2002 at 6:50 am
    If Jordan became the mandatory power, as Mike Anderson says, then it needed the consent of the League of Nations (or the UN as its successor, as Sameh Mobarek says. This didn't happen. The closest to a UN-given consent was the UNGAR 181, which was accepted by the Jews and rejected by the Arabs. It is typical of the Palestinian way of thinking to argue that since Israel accepted UNGAR 181, she is bound by it in its entirety, while the Arabs are not. In other words, Israel should stay inside the borders provided by UNGAR 181, while the Arabs can claim the whole territory of the former mandate. Note that this argument doesn't state that the Israeli has any title to her own "recognized" territory. This is then supposedly supported by Britain's subsequent actions. First of all, it isn't logical to say that Britain's title to the Palestine mandate did not derive from the League of Nations. The mandate couldn't have been derived from anywhere else, otherwise it would have been no mandate. If you start arguing that the British title surpasses the UN resolutions, you leave the door wide open for the Israeli annexation of the West Bank in spite of any UN resolutions. Once that happens, there is nothing non-existent about, so ultimately the case may be settled by what is existent and what is not. In fact, that is what the argument in favour of the armistice lines implies.

    Jari Nousiainen
    Finland

  • Wednesday June 19, 2002 at 4:57 pm
    Needless to say, I agree with the view expressed by Mr. Nousiainen above, and would add the following points. First, while Great Britain was a signatory to the agreement, the Treaty of S钁res of 1920 (the 典reaty) did not grant Great Britain the former Ottoman territory of Palestine. In fact, the Treaty included, as Part I, the Charter of the League of Nations, including Article 22. Part II of the Treaty specifically defined the boundaries of Turkey after the war thereby giving effect to the needs established in Article 22 with respect to territories that were under the control of Turkey prior to the war but not included within its boundaries as set by the Treaty. So long as the Palestine Mandate remained effective and Great Britain accepted the role and responsibility of Mandatory Power, Great Britain had authority over Mandate Palestine but only to the extent said authority was explicitly outlined in the Palestine Mandate. Furthermore, once Great Britain abandoned the Mandate, it no longer had the powers reserved for the Mandatory Power in the Palestine Mandate. Second, I still find it difficult to accept that the armistice line of 1949 between Israel, on one side, and Jordan and Egypt on the other should be regarded as de facto boundaries among the concerned states. Arguably, the agreed armistice line was on land that none of the signatories to the armistice had legal title to. It is like Germany and France invading Belgium and agreeing on an armistice line that splits Belgium between them. Granted that the territory between Israel, as defined in its declaration of independence, and Trans-Jordan, as defined in the Palestine Mandate, was not an independent state, there are still issues related to title of land of the indigenous population and their right for self-determination. Third, with regard to Egypt痴 occupation of Gaza, I believe British objection to the occupation stems from Egypt痴 agreement to the Kellogg-Briand Pact, which Egypt ratified in 1929.

    Sameh Mobarek
    Chicago, Illinois, USA

  • Wednesday June 19, 2002 at 10:40 pm
    Prof. D'Amato says: "it was the personal antagonism between Jews and Arabs, fueled not by the Palestinians but by the neighboring Arab states" that muddled the mandate.

    The 1929 "disturbances" (riots) and the 1936-1939 "revolt" were not due to outside influences (unless you don't consider Arabs who immigrated to Mandate Palestine as "Palestinians". For example, the Syrian-born Sheik Izz el-Din al-Qassam after whom Hamas' military wing is named). This sounds like an argument meant to absolve the Palestinian Arabs from what transpired at the time (just as many incorrectly argue that the Palestinian Arabs themselves were not represented before the UN in 1947, ignoring that the [Palestinian] Arab High Committee also rejected UNGAR 181).

    "Resolution 181 in November 1947 said, basically, the two-state solution would terminate the Mandate... a UN boundary line between the Israeli state and the forthcoming Arab state... If you accept my argument, it follows that the "Arab" portion of Palestine is still a UN Mandate."

    Except that there clearly is NOT a UN Mandate today in a portion of "Palestine", nor was there one at any point since 1948. This is clearly a result of the TERMINATION of said Mandate by the very document you are waving. Contrary to your argument, said termination was not predicated upon the establishment of two states. The order of operation here is vital. The UN first terminated the Mandate (section I-A), then partitioned the territory (section II). This is further evident in dates and timelines presented. For example, the Mandate would UNCONDITIONALLY terminate no later than 1 August 1948 whereas the two states would be established no later than 1 October 1948 -- AFTER the termination of the Mandate. Clearly the termination of the mandate was NOT tied to the establishment of two states. Nothing suggests that the failure of one or both states to emerge would undo the termination of the Mandate.

    The nonsensical nature of the revisionist argument that there is still a Mandate can be seen from the failure of the UN to uphold other acts specified in the timeline (for example, there was no vote to determine Jerusalem's permanent status and clearly such a popular vote after parts of the city had been ethnically cleansed of its entire Jewish population would be a farce. Jari Nousiainen mentions other such contradictions and others have noted many possible yet divergent interpretations of events since). Even IF the arguments that the Mandate never terminated were correct, it would be an academic and moot point at this juncture since the last 54 years have already transpired under the working presumption that the Mandate was indeed properly terminated. What we end up with (as we've already seen) is a "coulda-woulda-shoulda've" reminiscent of sporting events (or Star Trek time-warp episodes). (:

    So even if this was in error, history has already marched forward, irreversibly so.

    (Let me add that I don't think there is a question of "original intent" since many of the same players behind 181 accepted that the partition was DOA and never stated that the Mandate was still in force despite the failure of an Arab state to emerge.)

    One last point in this regard: the Mandate document itself (Article 28) states not that the trust is one in perpetuity, but that in event of termination of the Mandate Articles 13 & 14 (pertaining to religious freedoms) and financial obligations shall be guaranteed by the League of Nations. I fear that the argument that the trust is perpetual until the emergence of a (or two) states is wrong on all counts.

    And one last, if ironic thought: if there still is a Mandate, doesn't that make the "settlements" legal as Jews (both in the Mandate and in UNGAR 181) were guaranteed the right to live in these territories?

    "international boundaries do not change as a result of the use of force"

    From Prof. D'Amato's own WW II precedent, it is clear that this applies to the aggressive use of force. The purpose behind the UN Charter, similar to the Kellogg-Briand Pact, was to prevent aggression -- not to limit consequences to the aggressor.

    The notion that a party can repeatedly attack another in an effort to seize territory while being insured by the international community against its own territorial loss is morally reprehensible and indeed, by eliminating such risk, encourages the non-pacific means these very documents seek to prevent.

    Leeron Kopelman
    Ann Arbor, MI, USA

  • Thursday June 20, 2002 at 12:34 am
    This is my question to Prof. D'Amato: Why did you omit the following function required from Britain by the Mandate as stipulated in Article 2? See below: Article 2 The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion. Why have you also omitted the boundries of Palestine? INTRODUCTORY. Position, etc. Palestine lies on the western edge of the continent of Asia between latitude 30ー N. and 33ー N., Longitude 34ー 30 E. and 35ー 30' E. On the south it is bounded by Egyptian and Saudi Arabian territory, on the east by Trans-Jordan, on the north by the French Mandated Territories of Syria and the Lebanon, and on the west by the Mediterranean. The boundaries are described as follows:-- South.--From a point west of Rafa on the Mediterranean to a point two miles west of Aqaba in the Gulf of Aqaba. East.--From a point two miles west of Aqaba in the Gulf of Aqaba up the centre of the Wadi Araba, the Dead Sea, and the River Jordan, to the junction of the latter with the River Yarmuk, thence up the centre of the River Yarmuk to the Syrian frontier. North.--The northern boundary was laid down by the Anglo-French Convention of the 23rd December, 1920, and its delimitation was ratified in 1923. Stated briefly, the boundary runs from Ras el Naqura on the Mediterranean eastwards to Metulla and across the upper Jordan valley to Banias, thence to Jisr Banat Yaqub, thence along the Jordan to the Lake of Tiberias on to El Hamme station on the Samakh-Deraa railway line. West.--The Mediterranean Sea. Resolution 181 is just a recommendation. See the resolution in following site: http://domino.un.org/UNISPAL.NSF/
    9a798adbf322aff38525617b006d88d7/
    6232f2ac638dc241852560e5005c1f2b!OpenDocument A Recommends to the United Kingdom, as the mandatory Power for Palestine, and to all other Members of the United Nations the adoption and implementation, with regard to the future government of Palestine, of the Plan of Partition with Economic Union set out below; You are misleading the public. Raam

    Raam Barak
    Israel

  • Thursday June 20, 2002 at 12:45 am
    Leeron Kopelman's last sentence is an invitation to turn the clock back four or five centuries to the notion of a "just war," where nations thought they could decide whether an attack was morally reprehensible. Ever since the Kellogg-Briand Pact of 1928, the international legal community has rejected the notion that any war can be justified. Defense of one's own country is, of course, the self-defense exception recognized in Article 51 of the UN Charter, but at the point where successful self-defense becomes aggressive war, then the latter is still illegal. For example, if you punch me, I can punch you back and defend myself, but if you have no weapon and I draw a gun and shoot you for punching me, that's murder. Why does Mr. Kopelman find this "morally reprehensible?" Let's say the Arabs attack, Israel defends, Israel pushes the Arabs back over the dividing line, Israel keeps going, and takes over a large chunk of Arab territory. If the takeover is just temporary--a way of creating a buffer zone until the fighting dies down, that's one thing. But to keep the territory and call it self-defense is an abuse of the term "self-defense." Moreover, to object to the international law prohibition against acquiring territory by force by calling it "morally represensible," Mr. Kopelman simply indicates that when a rule of law is not to his liking, he can get rid of it by looking inwardly to his own notion, whatever it might be, of morality. The proper "punishment" for Arab invasion is monetary reparations, not seizure of Arab territory. This was true in 1948-49, and strangely enough, is happening again today. Israel has announced that it will seize Palestinian territory in retaliaton for the suicide bombing. In today's case, we don't even have Mr. Kopelman's strained rationale; we don't even have an Arab attack against Israeli territory. What we have are horrible and egregious violations of human rights on the part of the suicide bombers and those who back them. There indeed ought to be an international settlement of these issues, holding Palestinians responsible for the suicide bombing. At the settlement conference, other human-rights issues should also be addressed, such as Israel's 35 year occupation of Palestinian territory and its imposition of military rule, curfews, and restrictions of movement upon the Palestinians. The mandate issue, as it has developed in this interesting forum, has led to some advocates of the position that Jordan is the Mandatory, others advocating Israel as the Mandatory power, and others advocating Great Britain. "And the winner is ... New Zealand!" Seriously, the identity of the mandatory power is not important, just as the identity of a trustee is not important. What is important is the trust. The Mandate document issued by the League of Nations, as well as Resolution 181, only reflect the underlying Mandate, whose telos -- whose purpose for being -- is to bring the people to independence and self-government. Thus Resolution 181 can't be parsed like a contract, as Mr. Kopelman wishes, but rather has to be interpreted like a Constitution, in which the rights of the people are not exhaustively enumerated. I maintain that the Mandate (the trust) itself (not the piece of paper setting up the Mandate) does not end until the Palestinian people achieve self-government. The Jewish Palestinians achieved self-government in May 1948, but the rest of Palestine has not yet done so. As for Mr. Kopelman's "ironic" thought--that if the Mandate exists the settlements are legal, that would have been true prior to the partition of 1947. After the partition, we may have a curious one-sided situation. Israel may have the right to bar Arabs from purchasing land in Israel, because Israel is a state. But Palestinians do not have the right to bar Israelis from purchasing land in the Mandate territory, because Palestine is not a state. Thus, I think there is nothing wrong with Jewish settlements in Palestine provided the settlers purchase the land from the Palestinians who are the owner-occupiers of the land the want to purchase. Of course, to the extent that they simply bulldoze Palestinian farms and houses and carve out Jewish settlement areas, then it's simply territorial aggression, and it cannot lead to title in the land.

    Anthony Damato
    Northwestern Law School
    Chicago, Illinois, US

  • Thursday June 20, 2002 at 12:49 am
    All that said, I admire Mr. Kopelman's ability to use paragraphing in his posts. No matter what I do, the computer expunges all the white areas, rendering my prose even more block-style than it normally is. Would he share his secret with the rest of us?

    Anthony Damato
    Northwestern Law School
    Chicago, Illinois US

  • Thursday June 20, 2002 at 3:33 am
    Jordan claimed the West Bank after its failed military campaign against Israel. At that time Trans-Jordania was a Mandate and thus bound by the British signature of the Kellogg-Briand Pact, whereas Israel wasn't (if that still matters). As the name implies, Trans-Jordania was supposed stay on the other side of the Jordan river, which it didn't, contrary to the Palestine Mandate. If I am not mistaken, Israel and Jordan didn't recognize each other until a lot later. So the "self-defence" of Art. 51 of the UN Charter wouldn't have applied to this situation, at least not in their eyes. Israel regarded the West Bank as part of its "self" and Jordan regarded the whole territory of the former Palestinian Mandate as part of its "self". All they reached in 1949 was an agreement on the armistice line, not a peace treaty. As long as Jordan regarded the whole former mandate as part of its "self", Israel was "more right" in repelling Jordan from the West Bank, which was only part of the "self" of Jordan (in contravention of the Mandate, which was the only mutually recognized document at that time for each other's existence). Besides, this served a legitimate strategic purpose at the time when the old conflict between them was revived after the terrorist attacks from the Jordanian West Bank provoked the Israeli raid on Es Suma in 1966 and ultimately led to the 1967 war. SCR 242 may have demanded Israel to retreat to the UNGAR 181 partition line or the 1949 armistice line, but its reference to "recognized and secure borders" would imply that neither of them was necessarily to be the final border. It is true that a Security Council resolution can't determine borders, but it wouldn't seem impossible that a General Assembly resolution couldn't do so either. This would call for the construct of "authoritative ruling". If we agree that UNGAR 181 had the effect of terminating the mandate and the partitioning of its territory, the resolution doesn't even have to be parsed. The partition could still be upheld, but since it is certain that the Palestinians turned down the offer of the creation of an Arab state, that partition plan couldn't establish an international border. Israel just had to declare itself "a Jewish AND an Arab state" and the partition line would have become its internal matter. Anyway, UNGAR 181 does not revoke the borders of the mandate but only introduces a partition inside it. Consequently, the annexation by Jordan would be contrary to UNGAR 181 as well. It is a coincidence that the armistice line between Israel and Jordan runs approximately along the partition plan, which gives a false semblance of longevity to them both. Despite some caustic comments exchanged here, I would still tend to side with Mr Kopelman. A mandate may have terminated on the basis of UNGAR 181, but even if it hadn't, I feel uncomfortable with the idea that there is a mandate (or trusteeship) which has no mandatory (or trustee). At least the UN should have been aware of its existence before these postings. So, if there is still a mandate, the UN should have been notified. If the UN didn't have to be told of the survival of the mandate, neither did it have to be told of the supposed transfer to Israel. Why did I postulate the transfer of the mandate to Israel? The mandate still needs a mandatory in my view, and judging by the more recent arrangements between Israel and Palestine, Israel would seem to come closest to a mandatory. But I still welcome the latest observations regarding the termination of the mandate, because the hypothetical mandate arrangement between Israel and Palestine would have been malfunctioning ever since its inception. At some point you have to judge a matter of law by what is a matter of fact.

    Jari Nousiainen
    Finland

  • Thursday June 20, 2002 at 9:11 pm
    I think the order that the UN followed in drafting UN GAR 181 is perfectly logical. The UN could not recommend the partitioning of the Palestine Mandate while the Mandate itself was still effective. It had to terminate the Mandate first then detail what it believed to be reasonable to discharge its obligations to the indigenous population of the Mandate. Besides, this is merely a drafting issue and does not have much bearing on the effectiveness and applicability of the resolution. As to the issue of the Arab revolts in 1929 and the 1930s, one of the main root-causes of these revolts were Arab fears, with the knowledge of the existence of the Balfour Declaration, of loosing their lands in the face of continued migration of Jews into Palestine. Like Professor D但mato pointed out, I think it is important to reiterate that the original purpose of the Mandate, and, for that matter, the provisions of Article 22 of the League of Nations, was to ensure the development of the indigenous population towards self-determination. The authority to achieve this goal was borne out of the agreements reached among signatories to the Treaty of S钁res and members of the League of Nations (and its successor). Furthermore, like I mentioned before, Great Britain did not intend for the Palestine Mandate to become "... as Jewish as England is English". In addition, it was never the intention of either the League of Nations or Great Britain to have the Mandate continue ad infinitum. Again, the purpose of the Mandate was for the League of Nations to delegate its authority to a Mandatory Power to carry out the League of Nations' responsibilities as they were outlined in its Covenants. The Mandate terminated by virtue of UN GAR 181, but, by virtue of approving UN GAR 181, the UN indicated that the whole of UN GAR 181 is needed for it to discharge the foregoing responsibility. The UN did not approve any subsequent resolutions that explicitly changed the provisions of UN GAR 181. Realities on the ground may be different, but that is by virtue of the use of tanks and not international law. As to the issue of the legality of the settlements, there is no scenario underwhich they can become legal. In fact, even if you consider the occupied territories part of Israel proper, they would still be illegal by virtue of the protection Israeli law offers land owners. As for those who would argue that Israel should be considered de facto Mandate Palestine, would you then concede the right of all Palestinian Arabs and/or their descendants to return to the land to which they had legal title prior to the wars of 1948, 1956, and 1967? Certainly, under Israeli law (not to mention international law), which would have jurisdiction if one accepts this hypothetical, they would have the right to return to their homes and reclaim their land. This argument is a double-edged sword.

    Sameh Mobarek
    Chicago, Illinois, USA

  • Thursday June 20, 2002 at 11:27 pm
    Prof. D'amato states: "The proper "punishment" for Arab invasion is monetary reparations, not seizure of Arab territory."

    Can you explain why Germany and Japan were territorially "punished" as the aggressors following WW II? Yet the territory that we are discussing (1949 Armistice) was NOT Arab territory, only destined to become Arab territory had the Arabs accepted the UN compromise as the Jews did. The post-1967 territories had been illegally occupied by Trans-Jordan in aggressive action. Is there even really such a concept as "Arab land" vs. "Jordanian land" or "Syrian land"?

    Your comment raises an excellent question: is there any talk of monetary reparations -- or compensation for Jewish refugees -- in the current (recent) peace negotiations?

    "What we have are horrible and egregious violations of human rights on the part of the suicide bombers and those who back them.."

    And those who back them include the governing authority, the "sole legitimate representative"....

    "other human-rights issues should also be addressed, such as Israel's 35 year occupation of Palestinian territory and its imposition of military rule...."

    Israel's administration is authorized by UNSCR 242, which permits Israel to hold these territories until a peaceful settlement is negotiated. I'm sure you are aware that without annexing these territories, it would have been illegal for Israel to impose anything other than military rule.

    "I maintain that the Mandate (the trust) itself... does not end until the Palestinian people achieve self-government."

    Except that this was not a condition of the trust, only of the UN Resolution that terminated the trust and established the principle of a two-state solution.

    "I think there is nothing wrong with Jewish settlements in Palestine provided the settlers purchase the land from the Palestinians who are the owner-occupiers of the land the want to purchase."

    What if the land in question was previously not owned by individuals -- or had been owned by Jews (who were illegally ethnically cleansed from the region), as is actually the case with most of the "settlement" lands?

    [Paraphraphs and italics can be achieved by embedding HTML code in the text.]

    - - - - -

    Jari Nousiainen writes: "At that [1948?] time Trans-Jordania was a Mandate...."

    I'm not sure how if it impacts your argument, but I believe Trans-Jordan gained independence in 1946 so it was no longer a Mandate at that time.

    "At some point you have to judge a matter of law by what is a matter of fact."

    Thank you for stating that so succinctly. That's what I was trying to say with my analogies to sporting events and Star Trek time-travel episodes. (:

    - - - - -

    Didn't the UN General Assembly itself backtrack on UNGAR 181 as early 1948? We have discussed the UN Mediator's half-baked plans which were never implemented, but if 181 was sacred why did the UNGAR even appoint such a Mediator in the first place? What of UNGAR 194? Consider Article 5:

    Calls upon the Governments and authorities concerned to extend the scope of the negotiations provided for in the Security Council's resolution of 16 November 1948 and to seek agreement by negotiations conducted either with the Conciliation Commission or directly with a view to the final settlement of all questions outstanding between them;

    What is striking is what is missing. There is no call for a return to the 1947 partition lines! The very establishment that gave us 181 had realized that it was no longer in force.

    - - - - -

    Mike Anderson suggests that Trans-Jordan's "reunification" with its newly acquired West Bank and Britain's recognition of said annexation indicates that Britain conveyed Mandatory Power status upon Jordan is problematic.

    Jordan's illegal acquisition of this territory by aggressive use of force in violent contravention of UNGAR 181 and the lack of international recognition (only Britain and Pakistan recognized the annexation) suggests something very different. That the UN did not approve Jordan as a Mandatory power and that Jordan did not function as a Mandatory power (consider its blatant violations of Article 7, 13, 14 and 22 of the Mandate and its failure to protect the Jewish population and access to religious sites) underscores that Jordan was not a Mandatory Power -- not in name nor deed.

    Could Jordan then grant this ill-gained territory -- which it no longer even held -- to another party?

    My understanding was that Jordan renounced its claims to the "west bank" (in the late 1980s), not that it turned it over to the PLO. Certainly its 1994 peace treaty with Israel (Article 3 and Annex 1) recognize the Jordan river as the international boundary.

    Leeron Kopelman
    stratcom
    Ann Arbor, MI, USA

  • Friday June 21, 2002 at 1:40 am
    I realize that Mr. Kopelman joined this debate at a late stage, but I refer him to paragraph 8 of the essay I wrote at the beginning of this exchange. Security Council resolution 242 and others have been cited and recited by political leaders, and Mr. Kopelman echoes their fondness for these resolutions, but in my view, NOTHING the Security Council does gives it the power to change international borders. So, as far as the Mandate is concerned, we're only talking about the General Assembly (standing in for the Trusteeship Council). As far as World War II was concerned, treaties of peace from their inception 5000 years ago have the power to change borders, and only for the reason I've previously given--that a nation (in this case, the Axis powers) has the power to cede portions of its territory.

    Anthony D\'Amato
    Northwestern Law School
    Chicago, IL, USA

  • Friday June 21, 2002 at 4:15 pm
    I take issue with several of the statements made by Mr. Kopelman, but, because of time constraints, I will focus only on one. 的srael's administration is authorized by UNSCR 242, which permits Israel to hold these territories until a peaceful settlement is negotiated. I'm sure you are aware that without annexing these territories, it would have been illegal for Israel to impose anything other than military rule. First, the Security Council never authorized any form of Israeli administration in the territories it occupied in 1967. I think it is pretty clear that the resolution specifically calls for 展ithdrawal of Israeli armed forces from territories occupied in the recent conflict. Second, the Security Council does not even have the authority to grant Israel administrative powers over the occupied territories. That power rests with the General Assembly (speaking for the Trusteeship Council).

    Sameh Mobarek
    Chicago, Illinois, USA

  • Saturday June 22, 2002 at 5:30 pm
    Prof. D'Amato: Are you suggesting that Germany and Japan willingly ceded portions of their territory to achieve peace? That they weren't "forced" to do so following their unconditional surrenders? If another mideast war were to break out and follow the traditional pattern, would you advise Israel not to agree to a cease-fire but march onto Arab capitals, demand an unconditional surrender, and then force territorial compromise? (Should Israel have done so in 1967 or 1973, when the world regarded, to some extent or another, those territories to be Egypian and Jordanian?) I realize that we're discussing the status of the territories today, but one could posit a similar situation: should Israel retake the territories under PA rule and refuse to withdraw until the PA accepts the terms of something like the Camp David proposals (i.e. agreeing to cede 5-10% of the territories)?

    As I'm sure Mr. Mobarek is aware, he's only quoting Part I of II of UNSCR 242. The Israeli withdrawal from "territories" (specifically not "the" or "all" territories) is to happen in conjunction with the "Termination of all claims or states of belligerency...." The clear implication is that Israel can hold and administer this land until a peace settlement is achieved.

    It would only be up to the General Assembly to speak on this issue (rather than the Security Council) if it considered the territories to be in trust. That in 35 years no such objection has been raised by the GA (as well as prevailing world opinion which I think is also reflected here) is a further indication that the GA still believes, as it did already in 1948, that the the trust was terminated even if the suggested partition was not implemented.

    One other point for Mr. Anderson to consider: How could Britain, who had abandoned its rule as the Mandatory Power in 1947, recognize and grant Trans-Jordan as the Mandatory power (either following the 1948 war or in 1952(?) when Trans-Jordan formally annexed its newly gained "West Bank" and following this unification renamed itself as Jordan)?

    Leeron Kopelman
    Ann Arbor, MI, USA

  • Sunday June 23, 2002 at 2:38 am
    With regard to Mr. Kopelman痴 comment about UN SCR 242, please find the following: Section (1)(i) was clearly addressing Israel痴 action, and called for, without ambiguity, the withdrawal from territories that Israel occupied in 1967 (the recent conflict). The issue of whether this established the UN痴 views with respect to final secure and recognized borders of Israel and a Palestinian state has been a matter of considerable debate, both in the international arena and in this forum. I have expressed my views on this issue already so I will not belabor the point; As Mr. Kopelman noted, Section (1)(ii) was directed towards the Arab states. It called on them, inter alia, to terminate hostilities with Israel; and The only case I see that might delay Israel痴 withdrawal is the fact that the Arab states involved in the conflict were not willing to enter into peace agreements with Israel thereby allowing Israel to have secure borders. If this is what Mr. Kopelman was referring to, I take his point, but it would be important to note that this can not be taken to imply that UN SCR 242 疎uthorized Israel to administer the occupied territories.

    Sameh Mobarek
    Chicago, IL, USA

  • Sunday June 23, 2002 at 2:08 pm
    If coercion could invalidate a peace treaty, there would never have been any such thing as a peace treaty. Obviously the concept of coercion cannot apply to the state that loses a war, because if it did, a peace treaty would be an oxymoron. In fact, international law recognizes the concept of coercion in the context of peace treaties, but only the coercion that might be directed personally against the signatories to the treaty. In other words, a peace treaty is invalid if representatives of the losing side sign the treaty at gunpoint. A peace treaty is only valid if it is a contract voluntarily entered into by both sides. It is not as if the losing side has nothing to offer at the table. In the first place, the losing side agrees not to continue fighting. This is something the winning side wants. Second, the winning side cannot extract so much from the losing side as to sow seeds of resentment that will begin as soon as the ink dries on the treaty. Both Germany and Japan knew this, in fact, at the end of World War II. They knew that the Allies demanded "unconditional" surrender, but they also knew that, undet the table, the Allies were willing to talk. Indeed, "unofficial" representatives from Japan were extending "peace feelers" to the US several months before the atomic bombing, and these private initiatives coalesced into a set of peace terms that, with one exception, were acceptable both to Japan and the US. The one exception was the retention of the Japanese Emperor. Because of this rather foolish insistence by the Japanese, Hiroshima and Nagasaki were destroyed. The peace terms following the atomic bombing were pretty much the same as those voluntarily offered by the Japanese three months before, and even the Emperor was retained under a complicated formula that said that the final decisions on all implementation terms was the Emperor's, but this was understood to be pro forma.

    Anthony D\'Amato
    Northwestern Law School
    Chicago, Illinois USA

  • Monday June 24, 2002 at 4:50 am
    A trusteeship doesn't have to lead to the creation of an independent and sovereign state. (All strategic trusteeships held by the US in the Pacific, for instance, didn't opt for independence.) It may be true that "the original purpose of the Mandate, and, for that matter, the provisions of Article 22 of the League of Nations, was to ensure the development of the indigenous population towards self-determination". However, self-determination doesn't mean independence. It is just as valid an argument that the "Palestinians" exercised their right of self-determination when they rejected UNGAR 181. It has even become fashionable to introduce numerous divisions to the concept of self-determination. "Internal self-determination", for example, can refer to at least three different things. So self-determination doesn't equal independence. As to the Israeli administration on the West Bank on the basis of SCR 242, if the UN didn't accept the Israeli administration, what kind of administration did it accept then? Surely it had to be led by the situation on the ground. As to the right of return (although I don't think we should divert this discussion too much), what we have learned from Mike Anderson is the importance of Jordan's presence on the West Bank. The fact that Jordan declared the West Bank a "trusteeship", only to annex the "trusteeship" and later to abandon it to a non-existent state, has to have some impact on the status of the Palestinian people. If you want to stick to the right of return, which I think you shouldn't, one can argue that since Jordan naturalized the Palestinians, it is Jordan's problem what happened to the Palestinians. Surely Jordan is just as much to blame as any other state. It wouldn't occur to many states to hand over a part of the citizens to a non-existent state to speed up the political process of creating a state of their own (Palestine). If such a process went awry, it wouldn't occur to many states to blame some other state (Israel) of violations of international law. As to the relevance of SCR 242, I think that that is history. The Oslo Accord hardly leaves any doubt that Israel administers the West Bank except for the exception allowed for the Palestinian Authority. What happens now, remains to be seen. Anyway, if one adopts such a liberal view of a mandate or a trusteeship as has been done here, the mandate or trusteeship doesn't even have to be authorized by the League of Nations or the UN. It could just as well be done by states like the US, Egypt and Jordan, as in the original Camp David Agreement.

    Jari Nousiainen
    Finland

  • Monday June 24, 2002 at 3:02 pm
    While I agree that a trusteeship does not have to lead to independence, self-determination, which is the core of a trust, gives an indigenous population the opportunity to choose their own destiny. This was the case with the US trust territories where indigenous populations freely chose to remain under the auspices of the US. This was not the case with the Palestinian Arabs. Jordan had annexed the West Bank long before they had any say in an election. Furthermore, the Palestinian Arabs did not have the opportunity to choose independence at all. As I mentioned in a previous comment, practically speaking, the choice was to be annexed by Jordan or Israel. Indeed, one can argue that they exercised self-determination by rejecting UN GAR 181, but their fundamental objective by rejecting the resolution was to establish their own state, albeit on the entire Palestine Mandate. When Israel successfully fought off this attempt, their choice of independence was taken from them by Jordan and, later, by Israel. As to the issue of the UN tacit acceptance of Israeli administration in the occupied territories, the relevant facts are as follows: (a) the UN clearly indicated that they wanted Israel out of the territories it occupied in 1967, (b) the UN wanted the Arab states to respect the sovereignty of Israel, and (c) neither Israel nor the Arab states complied with UN recommendations. Both Israel and the Arab states used each other non-compliance with the provisions of UN SCR 242 as justification of ignoring the portions of the resolution applicable to them. The dilemma of UN SCR 242 is that the Security Council, in the face of an almost certain US veto, did not (and does not) have the political (or military) will to force a solution on the parties involved, which was exactly what was required back then (and seemingly the logical solution now). As to the issue of refugees, I believe it is impractical for Palestinians to expect Israel to accept the return of millions of Palestinian refugees to their land in Israel proper. The logical argument is that, once a Palestinian state is established, they can return to that state after receiving compensation for the loss of their land in Israel proper. However, if one makes the argument that Israel should be the entire Palestine Mandate, you cannot avoid the argument that Israel, morally and legally, should absorb all the refugees. Even if the argument that the refugees should be a Jordanian problem were sound (which I do not believe it is), Jordan would have to deal with refugees from the West Bank only. The difficulty with the issue of right-of-return is related to refugees from land that is now part of Israel proper (and outside of the occupied territories). As to the relevance of the UN SCR 242 in the face of the Oslo Accord, there is no doubt of the importance and significance of the Oslo Accord, but to stay that UN SCR 242 is 蘇istory would be a mistake. In my view, the Oslo Accord was the first step towards compliance with the provisions of UN SCR 242.

    Sameh Mobarek
    Chicago, Illinois, USA

  • Monday June 24, 2002 at 5:05 pm
    As an addundum to the note above, the Oslo Accord, in my view, was the first step towards compliance with the provisions of UN SCR 242 as the resolution pertains to the West Bank and Gaza. The absolute first step, I suppose, was the Egyptian-Israeli peace treaty in 1979.

    Sameh Mobarek
    Chicago, Illinois, USA

  • Tuesday June 25, 2002 at 3:18 am
    First, didn't the Palestinian Arabs really have the opportunity to choose independence at all? Wasn't that what UNGAR 181 was about, or have I missed the point completely? Sure, they made a bad choice, but how many opportunities should they be allowed? What is your version of the Palestinian rejection of the Camp David in 2000, for instance? Second, the refugees are as much the problem of Jordan as of any other country. The brutal fact is that Jordan created the refugee problem, and it did so calculatedly. Jordan deprived them of citizenship. So the right to return could just as well be limited to Jordan. As to the problem of the "refugees" in the Gaza strip, Jordan ceded its territory to this non-existent Gaza state, so if you want to argue by moral and legal responsibility, you already know what my conclusion would be. Even if we accept the original suggestion concerning the validity of the borders put forward in UNGAR 181, the refugees wouldn't be Israel's problem. You can create borders according to respect the location of the existing population, but you can also create borders even if the location of the population would be likely to change. This latter seems to be an entirely unfamiliar concept in the Arab world, whereas in Europe it is the stuff that history is made of. I think the only reason Israel hasn't claimed (rightfully) the whole former mandate is the Arabs' adherence to the land. So here is the moral dimension of the problem. A more dynamic way of thinking would suggest that there are enough Arab homelands in the Middle East, so that should be enough.

    Jari Nousiainen
    Finland

  • Tuesday June 25, 2002 at 3:44 pm
    I have difficulty accepting the idea of a "Jewish" state. Under this concept the only acceptable citizens are "defined Jews," and no others are welcome. When the people of Israel open their hearts and borders to non-Jews, giving them full citizenship and equal rights, then I can more easily support the Israeli argument for opposing the suicide bombers using the combined tactic of further encroachment and repression. Israel says that peace is her goal, but the master plan of forty years standing calls for integrating all the land west of the Jordan River into the state of Israel. Every act of Israel is seen by the world as being in furtherance of this poorly concealed policy. Every Palestinian is determined that the Israeli acts which have rendered them refugees and outcasts from their land will not succeed. The Palestinians are showing their willingness to give their lives in this effort. If Israel is to succeed over time with this tactic, her citizens must be prepared to kill every Palestinian, and potentially every supporter of the Palestinian cause. In my view, the odds are not favourable for the success of the Israeli approach. There is no compassion in it.

    Omar Rumi
    Malaysia

  • Tuesday June 25, 2002 at 6:07 pm
    Hmmmm . aaahhhh oooohhhh I am not sure where to even to begin to address the comments above. First of all, there seems to be a misconception that all Arabs are the same. While there is commonality of ancestry, Arabs are not the same. To say otherwise would be like saying that all Europeans are the same. I am sure a Palestinian would react the same way to this mischaracterization as a Finnish would if he was denied his national identity (an issue that is at the core of some of the problems in the European Union). Second, Palestinians have this inconceivable notion that they once had a land of their own and, by the declaration of a foreign power that thought it knows best to achieve the 組reater good, they were pushed aside. Troublesome and rather inconvenient of those pesky Palestinians to object to this, isn稚 it? Using the 租ynamic thinking that was alluded to above, the Serbs were justified in their war on Bosnia. In fact, the Bosnian Muslims should have accepted being pushed out of their land into greater Europe (or, better yet, into Turkey were they had ancestry). After all, there is enough European homelands and Turkish territory to absorb them. I sincerely hope that no one in a position of authority subscribes to this way of 租ynamic thinking; otherwise ethnic cleansing would be lawful in some jurisdictions. Since we are off the topic of international law, please tell me in what part of the process of formulating UN GAR 181 did the UN take into consideration the views of Palestinian Arabs? The Palestinian Arabs declared their rejection of UN GAR 181 the first chance they got. The international community (and Israel) accepted part of the provisions of UN GAR 181 by recognizing the existence of the state of Israel and using it as the basis thereof. Now I am being told that the other part should not be regarded as valid because of the objections of the Palestinian Arabs to the whole resolution. Better yet, we should just kick them all out of the land and give it to Israel because the Palestinian Arabs have not been such good sports about things!!?? Somehow I find this objectionable. As to the issue of refugees, I still maintain that Jordan痴 annexation of the West Bank was illegal and, therefore, there was nothing for them to cede. Irrespective, the refugee problem was created when trouble between Palestinian Jews and Arabs first started in 1947. Some Palestinian Arabs walked out of their land that was part of the new state of Israel in anticipation of the invasion of Arab armies, and the Israeli army forced the rest out. After Israel annexed additional territories in 1949, the Israeli army forced Palestinian Arabs in these lands out too. Consequently, most of the Palestinian refugees were either owners or residents of land that is now part of Israel proper. Jordan expelled some Palestinian Arabs in 1970 when they tried to take control of Jordan, but almost all of these Palestinians were living in refugee camps in Jordan (hence had their home somewhere outside of Jordan). So the notion that the refugees are a Jordanian problem does not make sense even if you accept the legality of Jordan痴 annexation of the West Bank. As to the issue of the deal offered Palestinians in Camp David in 2000, I think a few facts have to be noted. Without regard to Palestinian concessions with respect to physical borders that are the topic of this forum, the deal gave Palestinians no control over their air space, no control over their waterways, no control over their own borders, no control over the water resources on their land, limitations on the means of self-defense, legitimized many of the Israeli settlements, and deferred discussion on the issues of Jerusalem and refugees. The fact that the deal was the best deal offered by the Israeli government to date does not automatically make it a good deal for Palestinians.

    Sameh Mobarek
    Chicago, Illinois, USA

  • Wednesday June 26, 2002 at 12:24 am
    I never said that Britain "conveyed Manditory power status" upon Jordan. What I said was that in April 1950, Britain recognized Jordan as being the "Arab State" of resolution 181, and recognized the 1949 Israeli-Jordanian Armistice line as being the legal international boundary between Israel and Jordan, superceding the boundary deliniated in Resolution 181. The Resolution called for the termination of the mandate and its partition into two independent states. Britain was the rightful owner of the land, and the only nation holding the legal power to cede it. While we can second-guess the British decision, the fact remains that neither Israel and Jordan annexed territory unilaterally; they legally acquired title to it. The first Arab-Israeli war did not begin 1n May 1948, it began in November 1947 when the Grand Mufti of Jerusalem and the Arab Higher Committee declared a "Jihad" against the Jews of Palestine. Had the Palestinian Arabs not declared war, and accepted the partition plan, the demarcation lines deliniated in Resolution 181 would have become the legal boundaries. And although Jordan eventually ceded its sovereignity over the west bank to the PLO, the area between the partition line and the armistice line is territory that the Arabs of Palestine permanently lost because they chose to launch a war of aggression.

    Mike Anderson
    Toronto, Canada

  • Wednesday June 26, 2002 at 4:06 am
    Yes, it is a shame that somebody brought up the subject of right to return, isn't it? UNGAR 181 states in paragraph 9: "During the transitional period no Jew shall be permitted to establish residence in the area of the proposed Arab State, and no Arab shall be permitted to establish residence in the area of the proposed Jewish State..." So we are back to the issue of the length of the transitional period and the fact that the Arabs rejected the partition plan. "The refugee problem was created when trouble between Palestinian Jews and Arabs first started in 1947". Does the Partition Plan play a role? Does the "Jihad" against the Jews in Palestine in 1947, as Mike Anderson put it, play a role? Anyway, Jordan isn't to be blamed. Indeed, Jordan must have it tough. Some Palestinians tried to take over the state so Jordan thought the Palestinians were somebody else's problem: Israel's. The difference is that if Israel can't kick them off. My point wasn't that Israel should kick them off as their Arab brethren did, because that would show lack of compassion, my point was that Israel hasn't kicked them off. Arguing by moral considerations should stop there. And then we have these arguments that the Arabs are not the same. Well, neither are the Jews the same. Should Israel open its doors to all people (supposing it hasn't)? Jordan didn't open its doors during its occupation of the West Bank. Talking about ethnic cleansing, the Arabs states are of course supposed to be immune to it, never mind that some of the Jewish population now in Israel were kicked off from these Arab states. We have heard of noble ideals of lasting peace based on SCR 242 and how this is to be a stepwise process, but somehow the Camp David proposal just wasn't the right step. So the suicide bombings are what Israel deserves. And the least Israel is supposed to do is to withdraw to the armistice line, or preferably to the Partition Plan borders.

    Jari Nousiainen
    Finland

  • Thursday June 27, 2002 at 4:21 am
    Perhaps I struck a nerve with Mr. Nousiainen that I should not have, but I certainly welcome and appreciate a frank discussion. When I speak of refugees, I am referring to Palestinian Arabs whose residency and land ownership pre-dated UN GAR 181. I am also referring to Palestinian Arabs who resided and owned land that was part of the Arab state contemplated by UN GAR 181 and subsequently annexed by Israel following the 1948 war. Hence, paragraph 9 does not apply. With respect to the impact of the partition plan on the relationship between Palestinian Arabs and Jews, there is no doubt in my mind that it made a bad situation substantially worse, but I fail to see how that can justify the creation of the refugee problem. As to Arab states treatment of their own Jewish citizens, it was a move designed to cater to the masses at that time and was, in my humble opinion, completely unjustified. With regard to the argument about Jordan痴 responsibility for the refugees, I am not sure why we keep coming back to this topic. I will repeat the point I mentioned before. Many of the current refugees were residents of land that is considered to be part of Israel proper today. Besides, as was pointed out by others in comments above, when Jordan annexed, albeit illegally, the West Bank, it gave Palestinians the Jordanian citizenship. In fact, over 60% of Jordan today is of Palestinian origin, and most of the Palestinian Arabs in the West Bank today carry Jordanian passports. I can not see, nor would it be fair to expect, Israel to extend the same privileges to Palestinians in the West Bank and elsewhere outside of Israel proper. As to the discussion regarding suicide bombings, I can not conceive of an acceptable reason to justify these brutal attacks. But to condemn these attacks without looking with equal vigor at the treatment by the IDF of ordinary Palestinians in the West Bank for last 35 years would be hypocritical. While I can not claim to succeed with every attempt, I try to be as objective as I can be. I do not argue the Palestinian position nor do I argue the Israeli position. I try to argue what I believe to be the right and reasonable position. Neither Israelis nor Palestinians are blameless in this conflict. While I have argued feverishly for some positions based on historical facts and reason in this forum, I do not believe that these positions should be 蘇ard positions in resolving the conflict between the two peoples. Indeed, hard positions are the reason why this conflict lasted as long as it has. As Alexander Dumas once said 擢ortune is like the Palaces of the enchanted Isles, the gates of which are guarded by dragons. In the context of what we are discussing, the dragons are the Palestinian and Israeli extremists whose uncompromising ways have caused much bloodshed and pain. The biases of the media and some political establishments have not helped either. All I am trying to advocate here is even-handedness and objectivity. If you switch the words 選sraelis and 善alestinians in your arguments, would you still believe in your own position? For me, I can say with unequivocal confidence, YES!

    Sameh Mobarek
    Chicago, IL, USA

  • Thursday June 27, 2002 at 5:19 am
    First, as much as I respect Mike Anderson's insights, I cannot understand how he can claim that Jordan has some potential right to the West Bank up to the armistice line. As Mr Kopelman corrected me, Jordan became independent in 1946, in other words before the invasion, so the West Bank incursion is clearly aggression by a sovereign state directed, let us not forget, against another sovereign state, Israel. What makes things worse is the fact that Jordan doesn't even want the West Bank back, so I can't see what the whole point is. And the refugee problem stems from this aggression, as the Palestinians fled Israel in anticipation of the Arab offensive. I don't see how that could somehow exculpate Jordan. It may have been a valiant move to naturalize the Palestinians, but I can't see how this valiance could excuse the later de-naturalization. This is clearly against the International Covenant of Civil and Political Rights 1966. And I fail to see how the illegality of the annexation would change this. So if we go back to the UNGAR 181, let us not forget paragraph 9, which states that no Arab is to establish residence in the proposed Jewish state and vice versa. No aggression by the Arabs was envisaged, so the transitional period should be re-interpreted. The logical end to the transitional period would be the peace agreement mentioned in SCR 242. As is evident from the diplomatic correspondence of that time, notably from the Americans, the Israeli administration was intended to continue on the West Bank until a peace agreement is reached. Now put together four facts. 1) The Jordanian annexation was illegal, 2) the Palestinian Arabs rejected a state of their own offered in UNGAR 181, 3) Britain abandoned the mandate, and 4) the UN didn't continue to address Palestine as a mandate, entirely in line with UNGAR 181. So who does the West Bank (and Gaza) belong to? You may say the Palestinians, even if they have rejected UNGAR 181 and all subsequent steps toward creating a state of their own. There are a number of possible permutations, depending partly on how you "parse" UNGAR 181, if at all. Let's say that the land belongs to the Palestinians. That is still a metaphor. It can't belong to an entity which is not a state. Israel has the strongest case on the basis of UNGAR 181, UNSCR 242, the Camp David Accord and the Oslo Accord. In short, I can't see how you can argue that the "Palestinian land" doesn't "belong" to Israel. On the other hand, the humanitarian situation of the Palestinians cannot help affecting the outcome. Yes, you can indeed construe Palestine as a mandate despite what seems to me insurmountable contradictions. But even then, you have to admit that the mandatory power is no other than Israel. As a whole, Israel is not against a Palestinian state, so the self-determination - in the meaning suggested by others - would fit this arrangement. However, the mandate is at war with the hypothetical mandatory power, and the Palestinians have rejected all proposals of an independent state. We can argue endlessly, but the fact remains that the situation is highly anomalous, and probably defies all classification. As to switching the words Israelis and Palestinians in my arguments, you don't seem to get it. Israel is a sovereign state, Palestine is not. All misplaced sense of justice notwithstanding, I cannot see how you can switch the two.

    Jari Nousiainen
    Finland

  • Friday June 28, 2002 at 1:58 am
    There is an important difference between the territorial claims of a state and the personal property rights of individuals. The Israeli's claim disputed territory based on statehood, and argue that those claims are superior to personal property rights of Palaestinians who have lived on the land for generations. The Palestinians are not much interested in a state that cannot protect their personal and property rights, but they are very much determined to defend those rights against forceful dispossession, whether it be Israel or any other agency. If Palestine should be established as a state, this legitimacy would form a basis for confronting and defending the territorial rights of its citizens. For this reason Israel will sabotage covertly, by any means necessary, the establishment of a legitimate Palestinian state. For this reason Bush looks like a dupe.

    Omar Rumi
    Malaysia

  • Friday June 28, 2002 at 4:16 am
    I think this discussion is dying, maybe just as well, because maybe the borders were not the real issue. As you rightly point out, there is an important difference between the territorial claims of a state and the personal property rights of individuals. That would mean that there is an important difference between international law and the Palestinian claims. And that means that personal and property rights can be dealt with in the context of the Israeli state as well. That conforms with either annexing the West Bank and Gaza or with the (shaky) mandate model. What this would in any case mean for the Palestinians, is autonomy. Traditionally, autonomy has been broken down into two categories, one is territorial autonomy (they would have a region of their own) and and the other personal autonomy (they would be dispersed among the population but guaranteed some special rights). This sounds good, but experience shows it doesn't work. This was tried before the Israeli independence. The Palestinians themselves quit the Israeli state in anticipation of the Arab onslaught in 1947, so it should be no surprise to anyone if they aren't welcomed back. Soon Jordan was to experience the same fate. The Palestinians tried to take over the Jordanian state and Jordan got rid of them. But of course interpretations vary, because the meaning of the "Palestinian people" isn't clear-cut. (Jordanians ARE Palestinians, because Trans-Jordania formed the eastern half of the former Palestine mandate.) The bottomline is that nobody really wants the "Palestinians", so you can be sure it is in everybody's interest that they should get a state of their own. But as you said, the Palestinians are not much interested in a state... (and so on). Because we are back to the basics, it may indeed have been premature to discuss the borders. Just to get the record straight. Before the independence of Israel, the Jews lived on land they had bought legally from the Arabs. Even the "settlements" are mostly built on vacant land. But as you said earlier, you have difficulty accepting the idea of a "Jewish state". Since this discussion began with UNGAR 181, where the Jewish state is mentioned more than once, I think I will step back at this point to see if anything rational is in the offing.

    Jari Nousiainen
    Finland

  • Monday July 01, 2002 at 2:56 am
    I don't think this following point was raised relating to the power of the British to alter their Mandate over Palestine and that is the fact that the British White Paper of 1939, proposing Partition, was rejected by the Mandates Commission on the eve of the Second World War but the Zionist Movement could not follow that up due to the outbreak of hostilities. If I am correct as regards history, I may be correct legally in that the full weight of international recognition and international law permits Israel to exert authority over the areas of Judea, Samaria and Gaza. In addition, Article 80 of the UN Charter specifically disallows changes in the terms of the Mandate as they were by the League of Nations. The original Mandate spoke of the right of "close settlement" which would cover the Jewish civilian communities now exisiting in over 150 locations throughout the area. It also never referred to Arabs but always to "non-Jews" and this was not coincidental. By the way, the U.S. Congress, both houses, even though the country did not join the League of Nations, passed resolutions supporting the terms of the Mandate in 1922 as recognizing the historic right of the Jews to reconstitute their homeland.

    Yisrael Medad
    Begin Heritage Center
    Jerusalem, Israel

  • Monday July 01, 2002 at 3:59 am
    Anyway, UNGAR 181 leads to the kind of misconceptions we have witnessed above. Because the resolution is declared "unparsable", people suppose that the existence of the Israeli state is contingent on the existence of the Palestinian state. So the non-existence of the Palestinian state would invalidate the existence of Israel. The current talk of a "provisional" state is bound to confuse people even more. How can a state be "provisional"? If a state exists, it will exist indefinitely. Is this "provisional" character somehow linked to the perception that Israeli state is "provisional" as long as its unidentical twin brother, the Arab state, doesn't exist? I would say that UNGAR 181 was itself provisional. Its validity depended on the non-existence of the Jewish and the Arab state. As soon as one of these came into existence, it was no more applicable. Or, arguing from another point of view, it has to be "parsed". It cannot somehow create the Palestinian state on paper. A state is much more than a UN General Assembly resolution: the situation on the ground has to be considered. Until then, the borders of Israel are not an issue. The borders of the mandate are clear. The only problem might be the border with the Palestinian state, if such a state existed. So the border between Israel and Palestine would be relevant only if a Palestinian state existed, which it doesn't. If it exists one day, it will not be on the basis of UNGAR 181. The border imposed in this resolution would apply only if the Palestinian state had been created on the basis of the same resolution. I think the solution suggested in the previous posting has a lot to recommend it, primarily because we have nothing better.

    Jari Nousiainen
    Finland

  • Monday July 01, 2002 at 4:45 am
    The following is a quite relevant article by Professor Louis Beres of Purdue University which was recently reprinted and brought-up-to-date: Setting the Record Straight Louis Rene Beres 07 April 2002 [The following article was originally written by Professor Beres in June 1992.] Media references to territories administered by Israel since the June 1967 war now routinely describe them as "occupied." Yet, this description conveniently overlooks the pertinent history of these lands, especially the authentic Israeli claims supported by international law, the unwitting manner in which West Bank and Gaza fell into Israelエs hands after sustained Arab aggression and the overwhelming security considerations involved. Contrary to widely disseminated but wholly erroneous allegations: a sovereign State of Palestine did not exist before 1967 or 1948; a State of Palestine was not promised by authoritative UN Security Council Resolution 242; indeed, a State of Palestine has never existed. As a non-state legal entity, Palestine ceased to exist in 1948, when Great Britain relinquished its League of Nations mandate. When, during the 1948 - 1949 War of Independence, the West Bank and Gaza came under the illegal control of Jordan and Egypt respectively, these aggressor nations did not put an end to an already-existing state. From the Biblical Period (ca. 1350 BC to 586 BC) to the British Mandate (1918 - 1948), the land named by the Romans after the ancient Philistines was controlled only by non-Palestinian elements. Significantly, however, a continuous chain of Jewish possession of the land was legally recognized after World War I at the San Remo Peace Conference of April 1920. There, a binding treaty was signed in which Great Britain was given mandatory authority over Palestine (the area had been ruled by the Ottoman Turks since 1516) to prepare it to become the "national home for the Jewish people." Palestine, according to the treaty, comprised territories encompassing what are now the state of Jordan and Israel, including the West Bank (Judea and Samaria) and Gaza. Present day Israel, including the West Bank and Gaza, comprises only twenty-two percent of Palestine as defined and ratified at the San Remo Peace Conference. In 1922, Great Britain unilaterally and illegally split off 78 percent of the lands promised to the Jews - all of Palestine east of the Jordan River - and gave it to Abdullah, the non-Palestinian son of the Sharif of Mecca. Eastern Palestine now took the name Transjordan, which it retained until April 1949, when it was renamed as Jordan. From the moment of its creation, Transjordan was closed to all Jewish migration and settlement, a clear betrayal of the British promise in the Balfour Declaration of 1917 and a contravention of its Mandatory obligations. On July 20, 1951, a Palestinian Arab assassinated King Abdullah for his hostility to Palestinian aspirations and concerns. Several years prior to Abdullahエs killing, in 1947, the newly-formed United Nations, rather than designate the entire land west of the Jordan River as the Jewish national homeland, enacted a second partition. Ironically, even though this second fission again gave unfair advantage to the Arabs, Jewish leaders accepted the painful judgment, while Arab states did not. On May 15, 1948, exactly one day after the State of Israel came into existence, Azzam Pasha, Secretary General of the Arab League, declared to a tiny new nation founded upon the ashes of the Holocaust: "This will be a war of extermination and a momentous massacre...." This declaration, of course, has been at the very heart of all subsequent Arab policies toward Israel. In 1967, almost twenty years after Israelエs entry into the community of nations, the Jewish State - as a result of its stunning military victory over Arab aggressor states - gained unintended control over the West Bank and Gaza. Although the idea of the inadmissibility of the acquisition of territory by war is enshrined in the UN Charter, there existed no authoritative sovereign to whom the territories could be "returned." Israel could hardly be expected to transfer the territories back to Jordan and Egypt, which had exercised unauthorized and generally cruel control since the Arab-initiated war of "extermination" in 1948-49. Moreover, the idea of Palestinian self-determination was only just beginning to emerge after the Six Day War and was not even codified in UN Security Council Resolution 242, which was adopted on November 22, 1967. For their part, the Arab states convened a summit in Khartoum in August 1967, concluding: "No peace with Israel, no recognition of Israel, no negotiations with it...." Resolution 242 has been generally misinterpreted. The formula advanced by the Resolution is patently one of "peace for land," not "land for peace." The Resolution grants to every state in the Middle East "the right to live in peace within secure and recognized boundaries." It points, therefore, to peace before territorial withdrawal to "recognized boundaries." Security Council Resolution 242 is a balanced whole. The right of self-determination of the Palestinians does not appear in the Resolution; an international conference is never mentioned; the parties referred to include only states, not insurgent/terror organizations; and the phrase "territories occupied" is neither preceded by "the," nor is it followed by "on all fronts." These have been the essential historic reasons why the territories are not "occupied." Israelエs right to reject this improper description also stems from its incontrovertible legal right to security and self-defense. Because transformation of the West Bank (Judea/Samaria) and Gaza into an Arab state of Palestine would threaten the very existence of Israel, the Jewish State is under no current obligation to relinquish control. Its rights, in this regard, are peremptory. International law is not a suicide pact. Anyone who takes the trouble to look at a map of the region will discover that Israel and the territories, comprising an area less than half the size of San Bernadino County in California, cannot afford to yield its already minimal "strategic depth." In this connection, Israel should take little comfort from the promise of Palestinian demilitarization. Indeed, should the government of Palestine choose to invite foreign armies or territories on to its territory (possibly after the original national government had been displaced or overthrown by more militantly anti-Israel forces), it could do so not only without practical difficulties, but also without necessarily violating international law. The threat posed by an independent Palestinian state would also impact directly upon Jerusalemエs nuclear strategy. For the moment, Israel - still buffered from a hot eastern border by the West Bank - can afford to keep its bomb "in the basement." If, however, this territory became the heart of "Palestine," Israel would almost certainly have to move from "deliberate ambiguity" to disclosure, a shift that could substantially improve the Jewish stateエs nuclear deterrence posture but could also enlarge the chances of a nuclear war should this posture fail. Israel does not hold any "occupied" territories. It is critical that the Government of Israel recognize this and that it never accept such an incorrect characterization. To do otherwise would be to degrade its very capacity to endure.

    Yisrael Medad
    Begin Heritage Center
    Jerusalem, Israel

  • Monday July 01, 2002 at 9:48 pm
    I just want to touch on a couple points:

    1. UNSCR 242

    It's not history because much of the current (recent) peace process was based on it. Consider this from the Oslo DoP: "The aim of the Israeli-Palestinian negotiations... leading to a permanent settlement based on Security Council Resolutions 242 and 338." Similarly, the Israeli-Jordanian "Common Agenda" (14 Sep 1993) states that: "1. Searching for steps to arrive at a state of peace based on Security Council Resolutions 242 and 338 in all their aspects."

    I must disagree with Mr. Mobarek's assertion that Oslo and Camp David I were the first steps toward compliance. While Mr. Mobarek claims that both Israel and the Arab states conveniently ignored their own responsibilities outlined in 242, the truth of the matter is that Israel accepted the resolution shortly after it was passed. As has been pointed out, the Arab League rejected it at Khartoum. In fact, Egypt was ejected from the Arab League a decade later for accepting UNSCR 242 and making peace with Israel. Similarly, it was the PLO's acceptance of the resolution, more than two decades after it had been passed and accepted by Israel, which made the Oslo process possible.

    The argument that Israel should have withdrawn absent Arab acceptance let alone compliance with the resolution is absurd and reflects both a misunderstanding of the resolution as passed and of the various drafts that were rejected. Emphatically, UNSCR 242 does NOT call for an "immediate" nor "unilateral" Israeli withdrawal. Clearly the extent of withdrawal and other issues were to first be negotiated. Thus, as then Undersecretary of State Eugene Rostow has written, the UN recognized Israeli administration of the territories until the conclusion of a peace settlement.

    2. UNGAR 181

    Other than academic discussions of a "woulda-coulda-should-have", it is a matter of fact that this resolution terminated the Mandate and that for over half a century the world has functioned accordingly. (So much so that in 1967, UNSCR 242 didn't even call for the creation of a Palestinian Arab state.) Following Arab rejection of the Partition, it becomes clear that the very world body that presented it in 1947 had already abandoned it in 1948. We see this abandonment of the partition plan in attempts to reach other solutions before the war and by not calling for adherence to the partition upon achieving a cease fire (nor in the Armistice agreements). I think it was well understood already in December 1947 (or early 1948 at the latest) that the partition plan was DOA (Dead on Arrival). Thus it's not that the "transitional period" in Article 9 has not come to an end, it never began!

    Some pundits have quipped that some Arab parties have discovered UNGAR 181 some 50 years too late. The same can be said of this discussion. The peace process today is based on UNSCR 242 -- as recognized by signed bi-lateral treaties between the parties.

    Leeron Kopelman
    Ann Arbor, MI, USA

  • Tuesday July 02, 2002 at 6:57 am
    If fifty years is "too late" for Mr. Kopelman, why isn't Israel's claim to the Holy Lands fifty centuries too late?

    Anthony D\'Amato
    Northwestern Law School
    Chicago, Illinois, USA

  • Tuesday July 02, 2002 at 7:36 am
    Re: Lateness///The Jewish people were the only national grouping over 1800 that acted towards the territory as a homeland with religious observances, holidays and constant efforts to immigrate to it and even Messianic movements to restore sovereignty and major international recognition especially with Chrisitian support over centuries.

    Yisrael Medad
    Begin Heritage Center
    Jerusalem, Israel

  • Tuesday July 02, 2002 at 10:43 am
    I'm disappointed that rather than telling us why UN General Assembly Resolution 181 of 1947 is still relevant when the General Assembly itself moved away from the partition plan in 1948 and when signed treaties between the parties are based on UN Security Council Resolution 242, Prof. D'Amato chooses to discombobulate "too late". I'm not sure how Israel's claim can be considered 50 centuries too late when it is based on the events of the last 55 years and when Israel wasn't even around to make a claim prior to 1948. So one can only understand the question as pertaining to the "Jewish claim".

    As Mr. Medad points out, the Jewish claim is based upon 3000+ years of CONTINUOUS Jewish presence on the land in question and because the Jews are the only people present today who had ever lived there as an independent nation (rather than as colonists of a foreign empire).

    The question itself reveals a bias that we have just barely touched upon in this discussion: that somehow, by default, "Palestine" is "Arab land" (see my comments from June 20th, and Mr. Nousiainen's questioning of "Palestinian Land" from June 27th. Is the Jewish quarter of Jerusalem or Hebron "Arab land"? "Jordanian"? "Palestinian Land"?). While we don't have to get to the "Land without a people for people without a land" discussion, it is factual that there were few people living in Turkish "Palestine" in the 18th and much of the 19th century. The Arab line is that there were enough Arabs present to hold the land, but if that's the case, how did it become Arab land? Were there not enough Jews present in the 7th, 10th or 16th centuries? (For example, the Jewish population of Safed in the late 16th century was about half of the entire Arab population in Palestine in the mid-19th century.) So if we accept the Arab line, the land never stopped being "Jewish land" and couldn't have become "Arab land".

    Azzam Pasha (Secretary of the Arab League) told the UN in 1947 -- while speaking against the partition plan -- that: "The Arab world is not in a compromising mood. It's likely... that your plan is rational and logical, but the fate of nations is not decided by rational logic. Nations never concede; they fight. You won't get anything by peaceful means or compromise. You can, perhaps, get something, but only by the force of your arms. We shall try to defeat you. I am not sure we'll succeed, but we'll try. We were able to drive out the Crusaders, but on the other hand we lost Spain and Persia. It may be that we shall lose Palestine." In other words, "Palestine" is no more "Arab" than Spain or Persia!

    We've also touched upon individual rights vs. territorial claims and I think we all realize that the majority of the land of Palestine was government owned (it, in toto, was Turkish land until WW I and "British land" until 1948). After the 1948 war, respective areas became Israeli, Egyptian and Jordanian land. The latter two were problematic (acquisition of land by conquest, by aggressive force of arms), but both Egypt and Jordan have since renounced their claims. As we've also discussed, these countries couldn't cede land they didn't hold to a state that didn't exist.

    Thus the disputed territories are stateless lands properly under Israeli control. Surely if Israel opted to become a "bi-national" state and annex these territories and confer citizenship on its population many would find that an acceptable solution. Israel, wishing to retain its Jewish character and perhaps fearful of the Lebanon model, does not find this solution appealing. Many Palestinian Arabs also reject this because it does not confer "self-determination". Thus the form a negotiated settlement will take is that of the "two-state solution". (This doesn't mean a return to UNGAR 181, but to a concept that predates it.) Israel will annex some territory and cede the rest to a Palestinian Arab state-to-be. Hopefully by this time next year a responsible Arab authority will arise and facilitate this solution.

    Leeron Kopelman
    Ann Arbor, MI, USA

  • Wednesday July 03, 2002 at 3:21 am
    Leeron Kopelman wonders why I haven't told him why UN General Assembly Resolution 181 of 1947 is still relevant. Well, I already have, earlier in this thread. I think it's only fair to ask posters to make sure that their questions haven't been previously covered earlier in the specific forum. I believe that if Mr. Kopelman takes the trouble to go back to the top and catch up with the other posters here, he will find that a large number of his questions have been asked and answered.

    Anthony D\'Amato
    Northwestern Law School
    Chicago, Illinois, USA

  • Wednesday July 03, 2002 at 5:25 am
    There have been two answers. Professor D'Amato says in his essay, par. 5: "It was legally authoritative not because it took the form of a UN Resolution, but solely because the UN Resolution itself served as a ratification of the British proposal to divide the Mandate and leave its governance to the people." I think Mr Medad answered this on July 1: "The British White Paper of 1939, proposing Partition, was rejected by the Mandates Commission on the eve of the Second World War but the Zionist Movement could not follow that up due to the outbreak of hostilities." Mike Anderson said on May 30: "Four months later [in 1988], 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." One technical difficulty is that according to Mr Anderson himself, UNGAR 181 and UNSCR 242 don't refer to the same borders: the latter refers to the armistice line of 1949. Other problems include: did Jordan have the right to cede what it had acquired by a war of aggression, and did the PLO's unilateral declaration of independence have the power to resurrect UNGAR 181?

    Jari Nousiainen
    Finland

  • Wednesday July 03, 2002 at 5:37 am
    There is an unchallenged principle that a state may explode a nuclear device within its own borders. Israel claims the West Bank, and would therefore argue that it is legal to demonstrate their nuclear capability to the Palestinians by "testing" a device there.The avowed purpose, as stated above, would be solely to demonstrate its value as a deterrent. Certainly Israel could find religious and historical support for the necessity of this posture. Whether this concept is rational or practical is a subject for conjecture. Developing a nuclear device has capital costs that are lost once the device is detonated, and of course, the loss must be justified.

    Omar Rumi
    Malaysia

  • Wednesday July 03, 2002 at 8:14 am
    Prof. D'Amato, I have read your essay and all your comments since. The problem I have is that I've seen counter-arguments raised which have not been addressed -- starting with Prof. Sabel's comments immediately following your essay.

    You wrote: "Those borders henceforth could only be changed by one of two processes: first, explicit agreement between Israel and the authorized representatives of Palestine, and second, in the few cases of limited disputed areas... by international arbitration."

    So here are my questions:

    1. Isn't the PLO/PA's acceptance of UN 242 and the Oslo DoP an "explicit agreement" of which you speak?

    If your point is that the PA didn't have to agree to this, well, that may be so (but then, neither did Germany have to agree to territorial loss after WW II). Yet the practical matter is that they did agree -- in part because your thesis is not accepted. But that wasn't your point; your "comment" stated that Israel should accept the Saudi plan because it would recognize the 1949 Armistice lines rather than the 1947 UN Plan, ignoring treaties Israel has already signed with Egypt, Jordan and the PA.

    2. How do you explain the UN General Assembly's abandonment of Resolution 181's partition plan within months after its passage? That after the war it gave no importance to the partition borders and did not call upon Israel to withdraw to that status quo ante which had never existed? Doesn't this indicate that the UN GA didn't agree with your thesis that the proposed (but rejected) borders remained binding?

    If your point is that the UN GA erred, that they had to explicitly retract the Partition (if they had the authority to enact such a partition then certainly they had the authority to modify or retract it), you could be right. But 54 years later -- when the world has functioned under the presumption that there was an implicit retraction -- does it really matter as anything more than an academic curiosity?

    Leeron Kopelman
    Ann Arbor, MI, USA

  • Wednesday July 03, 2002 at 4:51 pm
    Jan Nousianinen says that Great Britain pre-rejected partition in 1939 and that the PLO post-accepted it in 1988, and leeron Kopelman says that the General Assembly didn't refer to Resolution 181 explicitly later on. But surely these are not weighty arguments for rejecting what the GA did do in 1947. What the GA did in 1947 is a fact that can't be undone by prior or subsequent events (unless there is a subsequent GA resolution explicitly modifying or revoking the Mandate settlement of 1947--that is, a resolution of the same legal power and status as the original Resolution 181). Finally, people may call all of this an "academic" exercise if they wish, but that in itself hardly means that it is more likely to be wrong than a "political" exercise. The question that I raised at the outset dealt with the LEGAL boundary between Israel and Palestine. It is up to the reader to decide whether "legal" boundaries count, or whether they should be superseded by political boundaries or military boundaries. I have only addressed my remarks to those people who care about what international law has to say on the subject, which is admittedly quite different from what the US, Israel, Europe, Palestinians, PLO, Arab States, or East Timor have to say on the subject.

    Anthony D\'Amato
    Northwestern Law School
    Illinois, USA

  • Wednesday July 03, 2002 at 10:41 pm
    I quote Professor D'Amato's own words: "The alpha and the omega of the legal power resided in Great Britain as the trustee, and not in the United Nations." In May 1948, Britain abandoned the Mandate, without ceding it to anyone. In January 1949, Britain recognized the State of Israel, at a time when Israel still claimed only the territory within 1947 partition lines. In April 1950, Britain extended de facto recognition to Israeli and Jordanian annexations up to the 1949 armistice lines, excepting the City of Jerusalem, which the British regarded as being a corpus seperatum. There was an "All Palestine Government" existing at the time (which later became known as the PLO in 1964), but the Britsh refused to recognize it, nor did the British recognize the Egyptian occupation of Gaza. The only subsequent actions which altered the status of these territories occured in 1988, when Jordan ceded the west bank to the PLO, and in 1993, when Israel and the PLO signed the Oslo accords, which declared Gaza and the west bank to be a single territorial unit and which incorporated UN resolutions 242 and 338 within its text. Resolution 181 was nothing more than a proposal for the lawful partition of the Mandate, which was rejected by the parties involved.

    Mike Anderson
    Toronto, Canada

  • Thursday July 04, 2002 at 4:47 am
    Let痴 go through this one more time. The significance of Great Britain with respect to the future of Mandate Palestine ended when it abandoned its mandate. It is interesting that Great Britain recognized the armistice line, but this fact hardly has much bearing on the legality of the boundaries of Israel or Jordan. The land occupied by both Israel and Jordan in 1948/1949 belonged to neither Israel nor Jordan. I say this on the basis of Israel痴 declaration of independence, which defined 選srael at that time on the basis of the boundaries established in UN GAR 181 for the 遷ewish state, and TransJordan痴 establishment by Great Britain prior to abandonment of its mandate. As for UN SCR 242, it did not purport to determine what the boundaries should be and certainly did not confer any rights or authority to Israel with respect to the occupied territories. The resolution was intended to be taken as a whole and called for both the withdrawal of Israeli forces from the territories it occupied during 1967 AND the establishment of 壮ecure and recognized borders among all the parties involved. The implication was that these borders would be determined by negotiations, and, as the drafters of the resolution expected based on discussions with Israel and the Arab states at the time, that the timeframe for these negotiations was supposed to be 6 months after the approval of the resolution. Within the very limited sense that Israel as a practical matter would have had to 疎dminister the occupied territories while these negotiations were taking place, the resolution allowed temporary Israeli control over the occupied territories. However, the drafters did not envision that these 創egotiations would take a long time and, therefore, the resolution can not be used as justification of or as giving sanction to long-term Israeli administration of the territories. In addition, the exclusion of the fabled 奏he before the word 双ccupied in the English language version of the resolution was intended to allow the parties some limited flexibility for minor 鼠and adjustments to make the secure and recognized borders among the parties more practical. It was NEVER the intention of the drafters to give Israel cart blanch in determining what these boundaries should be. In fact, the UN did not stop working on the implementation of UN GAR 181 or a variation of it, but, recognizing the animosities involved and the fact that any military intervention by the UN to force a solution on the parties would have been met by an almost certain US veto, the UN continued to pursue a negotiated settlement between the parties based on the two-state model established in UN GAR 181. There was general 'tolerance' of Jordan痴 annexation of the West Bank as a matter of political convenience at the time, but the issue of Palestinian refugees always kept this topic a continued focus of discussion until 1967. As for the contention that the parties (e.g. Israel and the PLO) 喪ejected UN GAR 181, I am quite positive that, given any glimmer of hope that it would get them anywhere, the PLO would jump on the opportunity to use UN GAR 181 as the basis for discussion. As for Israel, it is fairly evident that it is not in its self-interest to even acknowledge the applicability of the resolution despite the fact that it was the very basis of the state痴 independence. Therefore, the fact that UN GAR 181 is not the basis for current peace talks is more a matter of political convenience for the parties rather than a legal necessity.

    Sameh Mobarek
    Chicago, IL, USA

  • Thursday July 04, 2002 at 5:25 am
    I have to agree with Mr Mobarek. I have never heard that a recognition of a state at a certain time should confirm the borders of that state at that time. As to the wording of UNSCR 242, surely diplomatic correspondence has some bearing on its interpretation (as "travaux pr駱aratoires"), and I refer here to the Rostow communication. Admittedly, this is what the US thought (so it doesn't count from the international legal perspective according to Professor D'Amato), but the existence of the UN General Assembly doesn't mean that states cease to be subjects of international law as well and it doesn't matter what they say. As to a UN General Assembly Resolution being revokable only by another UNGAR, it must be remembered that according to Professor D'Amato's own view, UNGAR 181 had a special status as an authoritative ruling, so it can't be revoked by just any resolution. But then it becomes a matter of taste, because a resolution, including UNGAR 181, doesn't qualify itself explicitly as an authoritative ruling. It may be that such a ruling hasn't been issued after UNGAR 181, but it is equally true that UNGAR 181 hasn't been confirmed either (and here you have to take into account only the UN's own resolutions, because by Professor D'Amato's own admission it doesn't matter what the PLO says). But does a UN GA authoritative ruling have to be revoked by another authoritative ruling? Is there no normative hierarchy, so that the authoritative ruling could be revoked by a superior norm? I would like to point out that UNSCR 242 refers to secure and recognized borders. Why would it do that when it could have simply referred to UNGAR 181? As to the definiteness of a UNGA authoritative ruling, the relation between the British proposals and the UNGA partition plan seems to be different in the essay and Professor D'Amato's latest posting. In the essay the UNGAR derived its force from the British proposal, but in his latest posting Professor D'Amato suggests that UNGAR derived its force from being - a UN General Assembly resolution. As to the idea of "carte blanche" given to Israel in UNSCR 242 to determine its borders, Israel didn't need any carte blanche, because the borders of the mandate remained when the partition plan failed. As to the intention of the drafters of the UNSCR 242, it may be true that such a carte blanche was not their intention, but neither was it their intention that the Arab countries wouldn't sign a peace treaty with Israel. As to the certainty that the PLO would jump on the opportunity to use UNGAR 181 as the basis for discussion, it must be reiterated that the PLO is not in the legal position to lay down the rules. Even if it were a state, we would still have to contend with the notion that state don't make international law. I would be willing to let Mr Kopelman correct me once more: it has been UNSCR 242, not UNGAR 181, that "much of the current (recent) peace process was based on" (including Oslo).

    Jari Nousiainen
    Finland

  • Thursday July 04, 2002 at 7:31 am
    Surely Prof. D'Amato isn't suggesting that the EXPLICIT agreements signed by Israel, Egypt, Jordan and the PA have no LEGAL standing? I suppose that in the best case one can say that this discussion is about 10 years too late.

    It may be right that the UN General Assembly needed to explicitly revoke the partition plan (in which case it erred in doing so only implicitly), but I don't think that based on this technicality we should attempt to undo the last 54 years of history (much of which unfolded based on the mutual understanding that the Partition Plan was history, even if for differing reasons -- Mr. Mobarek's issues of "convenience"). As I've pointed out, the UN GA itself didn't think an explicit action was necessary precisely because it appears to have shared my view of UNGAR 181: that the mandate was terminated and the partition was a recommendation that turned out to be DOA and was abandoned.

    Perhaps the paradox here is that the 1947 partition plan wasn't rediscovered by some segments of the Arab world precisely until after the peace treaties were signed. Until that point, many were bent on the destruction of Israel -- not compromise with it, on any level (as stated by the Arab League on numerous occasions: No negotiations, No recognition, No peace). Once some had reconciled on compromise, the 1947 compromise was more appealing than the 1949 Armistice line. Good thing most have forgotten about the 1937 Peel Partition recommendation.... (:

    Leeron Kopelman
    Ann Arbor, MI, USA

  • Thursday July 04, 2002 at 9:58 am
    There is ample precedent for the acceptance of the concept that a nation continues to exercise sovereighnty over a territory it has abandoned or which it no longer has effective control over. One case that springs to mind is that of the British colony of Southern Rhodesia. Rhodesia issued a Unilateral Declaration of Independence on November 11, 1965. However the British refused to recognize Rhodesian independence, and the UN agreed with Britain's decision, declaring Rhodesia to be an illegal regime. It was not until April 18, 1980 that the British recognized Zimbabwe (formerly Rhodesia) as an independent member of the Commonwealth, and it is not until this date that its colonial status was terminated. The British Mandate in Palestine continued to exist until the British issued their formal declarations of January 1949 and April 1950. The decision by the British government to recognize the Israeli-Jordanian 1949 armistice line as an international border must be seen as being legal and binding.

    Mike Anderson
    Toronto, Canada

  • Thursday July 04, 2002 at 5:45 pm
    I believe the example of Rhodesia is not on point. Rhodesia developed over time as a British colony through treaties the British (through the South Africa Company and others) signed with the ruling tribes in the area. Palestine was never a colony. British rule emanated from the explicit powers granted to Mandatory Power by the League of Nations in the Palestine Mandate. Once Great Britain abandoned its role as Mandatory Power and UN GAR 181 terminated the mandate, any special authority that Great Britain had over Mandate Palestine ended. I agree with Mr. Nousiainen that diplomatic correspondences should be considered in order to understand the intentions of the drafters. This is what I was relying on to clarify the prevailing confusions about the intended effects of the resolution. As regards to the Rostow communications, I would appreciate it if you can be more specific as to which Rostow communication you are referring to. As to the failure of the partition plan, I do not believe that the partition plan failed. The failure was in the UN痴 inability to enforce its own resolutions. Such failure can not give Israel carte blanche (thank you for the correction) to absorb more territories without any legal consequences. Even if you do not accept the applicability of UN GAR 181, the land annexed in 1949 and occupied in 1967 was neither vacant nor abandoned. As to the culpability and clear mistake in judgment on the part of Arab states, there is no doubt that the Arab states could have acted more responsibly with respect to the development of the state of Israel and, even more importantly, with respect to their own Jewish citizens. However, the failure, by itself, of the Arab states to accept the partition plan can not imply that the plan itself is dead. As to the PLO, my earlier comment was intended to address the notion that both Israel and PLO 喪ejected UN GAR 181. The point I was trying to make is that there was no rejection, in the legal sense, of the resolution. It is self-evident that both Israel and the PLO have to agree on the basis for their negotiations, but that is a political consideration and not a legal one. But, using the Gulf War as an example, the UN resolution calling for Iraq to withdraw from Kuwait would have had little effect without the enforcement that followed. Without this enforcement, it would be left to Iraq and Kuwait to negotiate a political settlement to the conflict, irrespective of the validity and standing of the UN resolution on the subject, a situation that would have clearly favored Iraq.

    Sameh Mobarek
    Chicago, IL USA

  • Thursday July 04, 2002 at 8:43 pm
    Mr. Mobarek makes an interesting point about mandates and trust territories having a different status than that of colonies. It is true that the United Nations Security Council in April 1947 unilateraly terminated Japan's League of Nations Mandate over the Pacific Islands, and awarded them, as a Trust Territory, to the United States of America. However it should also be pointed out that in Article 2 (d) of the San Francisco Peace Treaty of September 1951, Japan formally ceded its League of Nations Mandate over the Pacific Islands. Japan could still be considered to be exercising residual sovereignty over the Pacific Islands until she formally ceded them in the San Francisco Treaty. This being the case, Britain could still be considered to be exercising residual sovereignty over the Palestine Mandate until her public declarations of January 29, 1949, in which she recognized Israel's independence, and April 27, 1950, in which she gave de facto recognition to Israeli and Jordanian annexations and to the armistice line as the new border between them.

    Mike Anderson
    Toronto, Canada

  • Thursday July 04, 2002 at 9:30 pm
    [Here's a copy of an article written by Rostow in The New Republic (21 Oct. 1991) which someone typed in (you'll recognize the obvious 1992 vs. 1922 typo): http://www.tzemachdovid.org/Facts/islegal1.shtml . You probably won't like this source, but other comments by Rostow and a quote attributed to US UN Ambassador Arthur Goldberg from the Columbia Journal of International Law, can be found at: http://www.yahoodi.com/peace/un.html and http://www.cdn-friends-icej.ca/un/242a.html ]

    Mr. Mobarek touches on a point but fails to answer his own question: why didn't the UN see fit to enforce the partition plan? Is it because the very people who passed UNGAR 181 didn't ascribe to it the weight that some now chose to? Again, why didn't the UN call on Israeli withdrawal back to the partition lines? On Egyptian and Jordanian withdrawal from "Arab Palestine"?

    Nor was it the UN's failure to enforce its resolution which allowed Israel to gain and annex territories beyond the partition (as if Israel was the aggressor and the UN was powerless to stop it). These conditions were created by the violent Arab rejection (including that of the [Palestinian] Arab Higher Committee) of the plan.

    Lastly, Mr. Mobarek attempts to dimiss diplomatic efforts as not having "legal" ramifications. It's true that these are not judgements, but it makes further judgements on an issue that has ostensibly been resolved by the parties a moot point. [See the bottom of point 5 of Prof. D'Amato's essay where he outlines this as one of two processes by which the borders can be changed.]

    According to signed treaties, the basis of peace negotiations is UNSCR 242, not UNGAR 181. If 181 was not DOA and off the table in 1948 (as all parties considered during the 40+ year interval), the rotting corpse was burried in the early 1990s by those treaties.

    Leeron Kopelman
    Ann Arbor, MI, USA

  • Friday July 05, 2002 at 4:49 am
    In his article, Eugene Rostow says: "Resolution 242, which as undersecretary of state for political affairs between 1966 and 1969 I helped produce, calls on the parties to make peace and allows Israel to administer the territories it occupied in 1967 until 'a just and lasting peace in the Middle East' is achieved. When such a peace is made, Israel is required to withdraw its armed forces 'from territories'..." Whether or not you go along with Professor D'Amato's arguments concerning the authoritative finding, you have to admit that it is unusual that a GA resolution is submitted to another vote. Why was it submitted to another vote? Could the reason be that those who it concerned were not states, so that they couldn't participate in the vote in the UN GA? This two-step procedure shows that the finding wasn't authoritative before it was accepted by the Arabs and the Jews. Maybe the Arab rejection did away with the resolution, but does that mean that the Israeli state doesn't exist? That's what the Arab states would like to argue. However, most states have recognized Israel regardless. I can see Mr Anderson's point that the "leftover" territory has to belong to somebody. He argues it belonged to Britain and then to Jordan. Professor D'Amato argues it belongs to the UN. This views hold water only if you accept that the mandate was partitioned. It wasn't. I didn't say "Britain pre-rejected partition in 1939". Actually, I was quoting Mr Medad's words, and I will repeat them once more: "The British White Paper of 1939, proposing Partition, was rejected by the Mandates Commission on the eve of the Second World War." Britain was a state, so one may not like what they decided, but the rejection came from the Mandates Commission. Mr Mobarek may argue that the West Bank belonged to nobody. On the other hand he argues that Jordan acquired it illegally. Isn't that a contradiction? He argues that it didn't belong to Britain. So if the acquisition was illegal, who did the West Bank legally belong to? Which state was Jordan invading when she took the West Bank in 1947?

    Jari Nousiainen
    Finland

  • Friday July 05, 2002 at 12:39 pm
    "It was from occupied territories that the Resolution called for withdrawal. The test was which territories were occupied. That was a test not possibly subject to any doubt as a matter of fact East Jerusalem, the West Bank, Gaza, the Golan and Sinai were occupied in the 1967 conflict. I[t] was on withdrawal from occupied territories that the Resolution insisted.", Lord Hugh Caradon, (U.N. Security Council Resolution 242: A Case Study in Diplomatic Ambiguity. Washington, D.C., Institute for the Study of Diplomacy, 1981). "There has been much bickering over whether that resolution (242) should say from "the" territories or from "all" territories. In the French version, which is equally authentic, it says withdrawal de territory, with de meaning "the." We wanted that to be left a little vague and subject to future negotiation because we thought the Israeli border along the West Bank could be "rationalized"; certain anomalies could easily be straightened out with some exchanges of territory, making a more sensible border for all parties. But we never contemplated any significant grant of territory to Israel as a result of the June 1967 war.", Secretary of State Dean Rusk (As I Saw It. W.W. Norton & Co.: New York, 1990. p.389 & p.390. "Since 1967, questions have been raised as to the true meaning of 242 ... I asked for clarification of the withdrawal provision at the time and was told the United States was prepared to make a commitment that would be understood to require Israeli withdrawal from all occupied territory of the West Bank, with 'minor reciprocal border rectifications' conditional on mutual agreement ... An essential part of the understanding as conveyed by the representatives of the United States was that Israel had acquiesced in the agreed interpretation of what Resolution 242 would require. The specific term used was that Israel was 'on board.' And furthermore, that six months would be the outside limit for its implementation.", the late King Hussein of Jordan, who represented Jordan during the negotiations of the language of the resolution and quoted from a speech he gave before the World Affairs Council in Los Angles on 6 Nov. 1981. "Jordan's acquiescence in Resolution 242 had been obtained in 1967 by the promise of our United Nations Ambassador Arthur Goldberg that under its terms we would work for the return of the West Bank to Jordan with minor boundary rectifications and that we were prepared to use our influence to obtain a role for Jordan in Jerusalem.", Secretary Henry Kissinger (White House Years, p. 345). "Support for the concept of total withdrawal was widespread in the Security Council, and it was only through intensive American efforts that a resolution was adopted which employed indefinite language in the withdrawal clause. In the process of obtaining this result, the United States made clear to the Arab states and several other members of the Security Council that the United States envisioned only insubstantial revisions of the 1949 armistice lines. Israel did not protest this approach." US State Department Study on the subject. "He (Israeli PM Begin) also extracted from the President (U.S. President Carter) a promise that the President would not talk publicly anymore about Israeli withdrawals to the 1967 borders with minor modifications, and that he would refrain from using the formula "a Palestinian homeland." In return, the President asked Begin to exercise greater restraint on the question of settlements, but obtained no commitment from the Prime Minister. When the President put forward the argument that security through territorial annexation would in fact be a formula for insecurity, Begin responded by saying that there would never be foreign sovereignty over the West Bank and Gaza." Z. Brzezinski. Power and Principle: Memoirs of the National Security Advisor 1977-1981. Farrar, Straus, Giroux: New York, 1983. p.100. In response to Mr. Kopelman痴 question of why the UN did not enforce its own resolution, the answer is quite simple and evident. Politics! The UN would not be able to do anything against a US veto in the Security Council, which I mentioned in a previous comment. 哲or was it the UN's failure to enforce its resolution which allowed Israel to gain and annex territories beyond the partition lets not forget that Israel INITIATED the Six-Day war here. The mentioned of 妬nadmissibility of the acquisition of territory by war in the preamble of UN SCR 242 goes directly to this point. 鏑astly, Mr. Mobarek attempts to di[s]miss diplomatic efforts as not having "legal" ramifications, I actually am not dismissing the diplomatic efforts at all nor do I consider them to have the weight of law. They are indication of the intensions of the drafters of the resolution, which help clarify the confusion about interpretation of the resolution. As for Mr. Nousiainen痴 question regarding a seeming contradiction in what I said, let me clarify by saying that I believe that, from a legal prospective, either UN GAR 181 is still valid and has standing or the administration of the territories that was not ascribed to the 遷ewish state in the resolution falls back to the UN. Follow the logic of the agreements and this would seem clear.

    Sameh Mobarek
    Chicago, IL USA

  • Sunday July 07, 2002 at 7:40 pm
    Mr. Nousiainen asks: "Maybe the Arab rejection did away with the resolution, but does that mean that the Israeli state doesn't exist?"

    The State of Israel was recognized not in UNGAR 181 but by UNGAR 273 (11 May 1949, following the signing of the 1949 Armistice agreements).


    Perhaps I was unclear, but my question on why the UN didn't enforce its resolution (but rather sought new solutions) pertained to 1948. Not only didn't the UN attempt to enforce partition, it abandoned it.

    My comments about diplomacy vs. law were to mean that new agreements supercede what may or may not be old law.

    Nor is it true that Israel "initiated" the 1967 war. The closing of the Straits of Tiran to Israeli shipping was a casus belli and a violation of the 1956 agreement. Nasser's threats, removal of UN peacekeepers, and the amassing of troops on Israel's border (and on the Syrian front, too) was a clear provocation. This action forced Israel to call up its reserves to defend against this threat, a condition that Israel could not maintain indefinitely. There was and is no reason to believe that had Israel blinked the Arab armies would not have attacked and perhaps succeeded in destroying Israel.

    Stephen Schwebel (two-term president of the International Court of Justice) noted that a country acting in self-defense may seize and occupy territory when necessary to protect itself. In "What Weight to Conquest?" he wrote: "Where the prior holder of territory had seized that territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defence has, against that prior holder, better title."

    Schwebel also distinguishes "between aggressive conquest and defensive conquest, between the taking of territory legally held and the taking of territory illegally held.", a distinction that has been lost in this discourse. Likewise, Professor Sir Elihu Lauterpacht, C.B.E., Q.C., (Honorary Professor of International Law, University of Cambridge, Member of the Institut de Droit International) wrote in 1968: "Territorial change cannot properly take place as the result of unlawful use of force. But to omit the word unlawful is to change the substantive content of the rule and turn an important safeguard of legal principle into an agressors's charter. For if force can never be used to effect lawful territorial change, then if territory has once changed hands as a result of the use of unlawful use of force, the illegitimacy of the position thus established is sterilized by the prohibition upon the use of force to restore the lawful sovereign. This cannot be regarded as reasonable or correct."


    Since the UN specifically terminated the Mandate and has made no indication to the contrary in the 55 years since, it's hard to accept that the territories are "UN land". As I've noted before, I was under the understanding the Jordan and Egypt rescinded their claims, not that they ceded land they didn't hold to a state that didn't exist. I think the areas that were not annexed by Israel were stateless and properly administered by Israel. (Oslo began changing that, more below).

    The late Professor Julius Stone wrote "There is no rule of international law which requires a lawful military occupant, in this situation, to wait forever before putting the control and government of the territory on a permanent basis." The argument could be made that Israel could annex the ~6% of the territories "occupied" in 1967 which it still holds (recall that the Sinai constituted the bulk of the land). Yet Israel wants to maintain its Jewish majority and does not want to govern a hostile population. Thus Israel is willing to cede land to the Palestinian Authority which would eventually be recognized as a state. And this seems to be the trend which will supercede UNSCR 242 (just as 181's time has passed, it appears as if 242 is being superceded: surely no one expects Gaza to be returned to Egypt or that Judea and Samaria will once again become Jordan's "West Bank").

    In his recent speech, President Bush stated (quoted by The New Republic): "The United States of America will support the creation of a Palestinian state, whose borders and certain aspects of its sovereignty will be provisional until resolved as part of a final settlement in the Middle East."

    The world has not and is not standing still, as if awaiting wide Arab acceptance of UNGAR 181 or UNSCR 242. Perhaps rather than recommending to Israel to accept the Saudi non-plan as a "good deal" (10-50 years after it was no longer a good deal) the recommendation should be made to Arafat and the PA that they should start thinking about accepting a deal that is on the table rather than a deal they previously rejected and which is no longer available due to on-going events that are history.

    Leeron Kopelman
    Ann Arbor, Michigan, USA

  • Monday July 08, 2002 at 3:13 am
    I think the arguments put forward by Mr. Kopelman痴 reference to C.J. Schwebel and Professors Sir Elihu Lauterpacht and Stone hinge on two fundamental points. One that the land Israel occupied belonged to a state that threatened the security of Israel, and that the occupation is temporary and should last only until Israel removes the threat through peace treaties. So is Mr. Kopelman saying that a state existed in the territories Israel occupied since 1948? Would Israel withdraw from all these territories if peace treaties are signed? If the answer is no to these questions then the opinions of C.J. Schwebel and Professors Sir Elihu Lauterpacht and Stone are not on point, even though they have been widely quoted to the contrary. As to the contention that Israel did not initiate the 1967 war, I concede that President Nasser did indeed close the Straits of Tiran to Israeli shipping and to shipping bound for Israel, and that he moved 3 divisions into the Sinai after informing the UN that he 田ould not guarantee the safety of its peacekeepers in the area. However, the 3 divisions were dug in defensive positions in the Sinai and did not have an offensive posture at all. At the time, President Johnson informed Israeli Foreign Minister Eban of this and showed him aerial photographs of Egyptian troops in defensive position. He told Minister Eban that it was the opinion of the US government that Egypt was not preparing to attack Israel and asked Israel to refrain from any offensive action. The posture of Egyptian troops was confirmed by forward commanders of the IDF. Some years later, even Prime Minister Begin said that Israel did not have reason to attack, but it attacked anyways. I am not saying that Arab countries are to be absolved from their complicity in creating the tension to begin with, but Israel actually initiated the war. The UN recognized this in the preamble to UN SCR 242. As for the contention that Israel was 途ecognized not in UNGAR 181 but by UNGAR 273, perhaps I am misunderstanding the point. UN GAR 273 merely approved Israel痴 membership to the UN. In fact, in the General Assembly discussion that resulted in the formulation of UN GAR 273, Minister Eban specifically noted that the establishment of Israel was based on UN GAR 181 and stressed the validity of the resolution. He also stated Israel痴 willingness to withdraw from the land it occupied in 1948 as part of a peace settlement that would end hostilities with Arab countries. I think the arguments put forward by Mr. Kopelman痴 reference to C.J. Schwebel and Professors Sir Elihu Lauterpacht and Stone hinge on two fundamental points. One that the land Israel occupied belonged to a state that threatened the security of Israel, that the occupation itself is lawful, and that it is temporary and should last only until Israel removes the threat through peace treaties. So is Mr. Kopelman痴 saying that a state existed in the territories Israel occupied since 1948? Would Israel withdraw from all these territories if peace treaties are signed? If the answer is no to these questions then the opinions of C.J. Schwebel and Professors Sir Elihu Lauterpacht and Stone are not on point, even though they have been widely quoted to the contrary. As to the contention that Israel did not initiate the 1967 war, I concede that President Nasser did indeed close the Straits of Tiran to Israeli shipping and to shipping bound for Israel, and that he moved 3 divisions into the Sinai after informing the UN that he 田ould not guarantee the safety of its peacekeepers in the area. However, the 3 divisions were dug in defensive positions in the Sinai and did not have an offensive posture at all. At the time, President Johnson informed Israeli Foreign Minister Eban of this and showed him aerial photographs of Egyptian troops in defensive position. He told Minister Eban that it was the opinion of the US government that Egypt was not preparing to attack Israel and asked Israel to refrain from any offensive action. The posture of Egyptian troops was confirmed by forward commanders of the IDF. Nonetheless, Israel attacked. Even Prime Minister Begin said that Israel did not have reason to attack, but it attacked anyways. I am not saying that Arab countries are to be absolved from their complicity in creating the tension to begin with, but Israel actually initiated the war, and the UN recognized this in the preamble to UN SCR 242. As for the contention that Israel was 途ecognized not in UNGAR 181 but by UNGAR 273, I beg to differ. UN GAR 273 merely approved Israel痴 membership to the UN. In fact, in the General Assembly discussion that resulted in the formulation of UN GAR 273, Minister Eban specifically noted that the establishment of Israel was based on UN GAR 181 and stressed the validity of the resolution. Interestingly, he also stated Israel痴 willingness to withdraw from the land it occupied in 1948 as part of a peace settlement that would end hostilities with Arab countries. The implication here was that Israel was not making legal claim over the land it occupied then. Lastly, the assertion that the UN abandoned its pursuit of implementation of UN GAR 181, UN SCR 242 and 338 is not supported by the actions of the UN. You have to keep in mind that the US constantly used its influence and prestige with other members of the UN to stop any material efforts to implement the resolutions. I hope I do not have to cite specific examples of this because they would be too many to list. On side note, like Professor D但mato, I have been impressed with Mr. Kopelman痴 ability to use word processing functions in this forum. I have not been able to figure out how to embed HTML code into these comments so I would be grateful if Mr. Kopelman can share with us a 滴ow To manual in simple form.Lastly, the assertion that the UN abandoned its pursuit of implementation of UN GAR 181, UN SCR 242 and 338 is not supported by the actions of the UN. You have to keep in mind that the US constantly used its influence and prestige with other members of the UN to stop any material efforts to implement the resolutions. I hope I do not have to cite specific examples of this because they would be too many to list. On side note, like Professor D但mato, I am impressed with Mr. Kopelman痴 ability to use word processing functions in this forum. I have not been able to figure out how to embed HTML code into these comments so I would be grateful if Mr. Kopelman can share with us a 滴ow To manual in simple form.

    Sameh Mobarek
    Chicago, IL, USA

  • Monday July 08, 2002 at 3:19 am
    For some reason, part of my comment above was repeated in the middle. Please excuse the inconvenience.

    Sameh Mobarek
    Chicago, IL, USA

  • Monday July 08, 2002 at 4:21 am
    I have a few remarks concerning the diplomatic statements quoted by Mr Mobareh. We have the word of Eugene Rostow against others. The reason Mr Rostow's opinion is to be preferred is that it takes into account the possibility that the peace treaty would not be reached. So the statement by Lord Hugh Caradon isn't strictly to the point. Mr Dean Rusk's statement is also contingent on "further negotiations", which in turn would be contingent on the peace treaty. King Husseins's words also refer to border rectifications contingent on "mutual agreement", which was contingent on the peace trety. He even gives the deadline of six months, which not only Israel, but the Arab states, missed. If that deadline passed, was the "understanding" still valid? Mr Kopelman has pointed out that some of the provisions of UNSCR are patently obsolete. I don't know how the agreement between Begin and Carter is relevant to Mr Mobarek's point. Maybe Mr Mobarek wants to argue that what Begin and Carter agreed on was not legally valid, because it was political. Anyway, the statements he quotes only contradict his point of the relevance of UNGAR 181. Rather, the diplomatic statements he quotes support Mr Anderson's contention that the Israeli borders were understood to coincide with the armistice line of 1947. That in itself should suffice to prove Mr Kopelman's "DOA" thesis of UNGAR 181 correct. Indeed, UNSCR 242, interpreted with the diplomatic statemtents, contradicts both of Mr Mobarek's conclusions. Not only was UNGAR 181 not valid, but also "the administration of the territories that was not ascribed to the 遷ewish state in the resolution" DID NOT "[fall] back to the UN." The UN should have produced some document claiming the administration of the dormant "Arab state". Where do the residual administrative powers of the UN come from? Anyway, the UN should have protested the Jordan invasion in 1947 and the Israeli occupation in 1967 as a violation of the administrative rights of the UN. I think Mr Anderson was closer to the point in arguing that Jordan was the "Arab state". That would explain why the UN did not protest the annexation by Jordan. However, it would not explain Jordan's later behaviour (in case we accept Mr Kopelman's point that Jordan rescinded her claims). Neither would it explain why the UN didn't claim the administration of the West Bank in UNSCR 242 or at any other point. Yes, the US would have vetoed, but the US wouldn't have the veto power in the UN GA, where the relevant document should have come from. - As to the question who the aggressor was, I find it difficult to accept that Israel was the aggressor in 1967. We have already discussed the ongoing terrorist attacks from the Jordanian terroritory, which had the backing of at least Egypt, if not Jordan. Why would anyone argue that Israel was the aggressor in 1967, while arguing that in 1947 the aggressor was Jordan, who still held the West Bank, from where the terrorist attacks were carried out? As to Israel's sovereignty resting on UNGAR 181, Mr Mubarek mentions that statements by Israeli Foreign Minister Eban indicate that Israel was created on UNGAR 181. That still doesn't rule out the possibility that these statements were made by the foreign minister of a non-existent state, because according to one viewpoint, as long as the Arab state doesn't exist on the basis of UNGAR 181, neither does the Israli state exist on the basis of UNGAR 181. IN fact, that must have been the reason the Arab states didn't negotiate a peace treaty on the basis of UNSCR 242. Also, Prime Minister Begin's later denial of a Palestinian homeland, referred to by Mr Mobarek, indicates that if UNGAR 181 was valid at all, it had been "parsed". You can also argue that Begin had misunderstood (or denied in the name of "politics") the real character of UNGAR 181, but you can also argue that Foreign Minister Eban had misunderstood it.

    Jari Nousiainen
    Finland

  • Monday July 08, 2002 at 10:35 am
    Just a few brief comments:

    HTML codes: if you insert the letter "P" in angle brackets (less than and greater than) you can begin a new Paragraph. "I" will begin Italics and "/I" (both in angle brackets) will end italics. Similarly use "B" and "/B" for Bold print.

    The point I was trying to make but didn't complete was that Israel was not accepted into the UN on its first attempt. It was only recognized after the 1949 Armistice Agreements were reached. Thus those are the borders which were recognized.

    Mr. Mobarek says that the US meddles in the UN and threatens to use its veto and offers to provide numerous examples. I don't dispute his general point (though other countries and blocks have similar influence), but what he needs to show is that the UN wanted to make the "territories" a mandate but was blocked by the US. My point is that there was never any such intention nor attempt precisely because it was understood that UNGAR 181 terminated the mandate. Same thing with UNSCR 242. I don't think the US had to threaten to use its veto: the Soviet/Arab drafts did not receive support for that to be necessary.

    Mr. Mobarek's points about 1967 are valid, but could also be made about 1973 (defensive positions, US intelligence said there would be no attack, etc.) Obviously we know what happened in 1973 and we don't know that it wouldn't have happened in 1967. The Arab states were clearly the aggressors even if Israel fired the first shot. (Note also that with respect to the West Bank, despite Israel's requests that Jordan stay out of the war, it was Jordan who attacked Israel. See King Hussein's book My War with Israel for his side of the story.)

    I don't agree with Mr. Mobarek's counter-arguments regarding Schwebel, Stone and Lauterpacht but I'll have to come back to that.

    Leeron Kopelman
    Ann Arbor, Michigan, USA

  • Monday July 08, 2002 at 3:34 pm
    To Mr. Nousiainen I offer the following:

    キ I mentioned before that the intentions of the drafter of UN SCR 242 was for the withdrawal for the occupied territories to be done as part of peace agreements that would establish secure and recognized borders among the parties. I offered statements from the drafters to rebut and refute the argument that (a) there was any doubt as to what territories the Security Council considered to be occupied territories and (b) UN SCR 242, somehow, gave Israel the authority to annex all or a large part of the West Bank and Gaza;

    キ The discussion between President Carter and Prime Minister Begin is relevant in the sense that the US was trying to adhere to the intentions of UN SCR 242, and only through political agreement and pressure were the concepts put forward by the resolution lost;

    キ You cannot isolate UN GAR 181 from the historical developments in the area. Neither Israel nor the Arab States wanted UN GAR 181 implemented. It is true that Israel embraced the resolution to support its declaration of independence, but, after the 1948 war, it would not have been in its interest to pursue it further. In addition, as it was pointed out many times before, the Arab States resisted it from its inception. Unless the UN was willing to send an army to enforce its own resolution, it had to rely on agreements between the parties to finally decide the solution to the on-going discourse. This is not the same as saying that the UN considered UN GAR 181 dead;

    キ The 喪esidual administrative powers that the UN possessed originated in the Covenants of the League of Nations and, later, the Trusteeship Council;

    キ As to the issue of the 1967 war, I did not say that Israel was the aggressor. I said Israel initiated the war; and

    キ I am not sure it makes sense for us to make arguments based on what Prime Minister Begin and Minister Eban understood when they made the statements they made. The gist of their statements were repeated by them and others in the Israeli government in several venues over the year to the point where it removes doubt as to what they understood, or misunderstood, with regard to UN GAR 181. We cannot just argue for the sake of argument.

    To Mr. Kopelman I offer the following:

    キ First, thank you for the tips on how to make these comments easier to read;

    キ As to your point regarding Israel痴 acceptance to the ranks of UN members, I do not believe that UN GAR 273 indicates UN acceptance of the borders established by the armistice treaty. In fact, if you read the transcripts of the discussion on the UN floor during the formulation of the resolution, you will see that the issue of the implementation of UN GAR 181 came up several times. In addition, Minister Eban argued that the UN痴 acceptance of Israel as member should be based on the fact that the state was established as part of the process of implementing UN GAR 181 and that this resolution calls for favorable consideration of the new state痴 membership into the UN. The whole argument put forward by the Israeli government at the time was based on UN GAR 181. The UN accepted the argument after emphasizing both UN GAR 181 and UN GAR 194 in the preamble to UN GAR 273;

    キ With respect to proof of US influence in favor of Israel, unfortunately, there is a scant written record of draft resolutions that were put forward and rejected on account of US objections. My knowledge on the subject comes from speaking to many UN diplomats that were involved in the discussions about the area over the past several decades. There is unanimity that much effort was spent by many members of the UN to implement UN GAR 181, UN SCR 242, or variations of both, but the efforts died before maturing because the US indicated its strong objections to them from the outset. I am afraid I can only offer verbal evidence to this at this time. However, looking at the recent history, I can see the validity of the claim. For example, I doubt that UN records will reflect the backdoor US diplomacy to sweep the investigation into what happened recently in Jenin under the 叢roverbial diplomatic rug. On a side note, this has been, and will always be, my strongest criticism of the UN structure and its effectiveness as a world body. The fact that a handful of countries have the power to dictate UN policy defeats the purpose of the UN as an institution representing global opinion; and

    キ I think the reference to the 1973 war is not on point. That war was purely a defensive war for Egypt even if Egypt initiated the war. Egyptian soil was occupied by a foreign power that gave no indications that it would retreat on its own. Settlements and vacation resorts were being built by Israel in eastern Sinai. Egypt had no choice but to, at least, try to get its territory back. As for the US involvement, it is true that US intelligence missed Egyptian intentions almost entirely. However, the US atoned for its mistake by immediately sending Israel massive supplies and material to replace those destroyed by Egyptian forces in the beginning of the war. This turned the tide of the war to Israel痴 favor, especially considering the fact that Egypt severed its relationship with the USSR prior to the war and had no access to new war material. I would venture to say that without US support the outcome of that war might have been radically different. As to making a correlation between the mistakes US intelligence made in 1973 with their opinion in 1967, you cannot use an event in the future to justify action today. It sounds to me like the recent movie 典he Minority Report but without the 舛ogs. In retrospect, we are all all-seeing sages, but in 1967 Israel did not know of the fallibility of US intelligence in 1973. In fact, IDF field commanders came to the same conclusions from physically observing Egyptian troops in the Sinai in 1967 as the US did from overhead pictures.

    Sameh Mobarek
    Chicago, Illinois, USA

  • Tuesday July 09, 2002 at 3:39 am
    Mr Mobarek. Thank you for the clarification. I hope you see how easy it is for me to disagree, in order to avoid arguing for the sake of argument. The Trusteeship Council never took over the Palestinian issue, so the UN has no residual administrative powers on the West Bank or Gaza. The fact that Israel initiated a war is only relevant if you want to cut the ongoing Arab aggression to shorter periods and say that THIS war was initiated by Israel. Just initiating a war doesn't have any legal weight. The discussion between Carter and Begin doesn't seem to contradict Eugene Rostow's position, so it is a matter of taste what is the "real" meaning of UNSCR 242. King Hussein's statement shows that the case was time-sensitive.

    We have come a long way with UNGAR 181. First it was valid because it consolidated the British plans, then it became an authoritative finding by the UN GA, now it is part of history, but valid, because Israel said its independence was based on it.

    Jari Nousiainen
    Finland

  • Tuesday July 09, 2002 at 7:17 am
    Israel did not claim the armistice demarcation lines as her borders at tht time of her admission to the UN General Assembly in May 1949. She did not claim any areas outside the partition lines until all of the General Armistice agreements were signed, the last being the agreement with Syria in July of that year. For relevant knesset debates on the subject of boundaries see www.jcpa.org/art/knesset9.htm

    Mike Anderson
    Toronto, Canada

  • Tuesday July 09, 2002 at 12:36 pm
    I stand corrected on the border issues and Israel's admission to the UN. I jumped to that conclusion based on Israel's failure to join the UN on its first try, prior to the signing of the armistice agreements.

    I still have tremendous time constraints, but I want to address the 1967/1973 issue. Mr. Mobarek stated:

    "I think the reference to the 1973 war is not on point. That war was purely a defensive war for Egypt even if Egypt initiated the war. Egyptian soil was occupied by a foreign power that gave no indications that it would retreat on its own."

    Egypt and Syria were the aggressors in 1973 and given that Israel had accepted UNSCR 242 (it was the Arab League who had rejected it) I find the rationalization troubling, to say the least. (Seemingly the war made Sadat change his mind, too.)

    The more important point was that much as Mr. Mobarek sees the problem with "predicting" 1973 in 1967, that was exactly my point. Israel couldn't predict the future. It had enemy troops amassed on its borders, etc. Maybe, contrary to the speeches in Arab capitals, there would not have been an attack. But maybe, if Israel had stood down or not called up its reserves (the bulk of its armed forces) there would have been.

    That the forces were feigning defensive positions and that intelligence indicated that no attack was imminent does not mean that a country should not defend itself because, as in 1973, positions can be modified and intelligence can be wrong (or based on misinformation that is fed to you). As you point out, the 1973 war almost succeeded in destroying Israel. In hindsight, Israel probably should have pre-empted what turned out to be an attack (and for not doing so, the Labor government fell).

    OK, on a totally different topic, if self-determination is so important and if Egypt didn't acquire the Sinai until the British attacked the Ottoman empire (to defend the Suez Canal), shouldn't Israel have turned over the Sinai to the native Bedouins rather than "return" it to Egypt? (Just as we're talking about ceding Gaza/WB to the PA and not returning them to Egypt/Jordan)?

    Leeron Kopelman
    Ann Arbor, MI, USA

  • Tuesday July 09, 2002 at 3:26 pm

    Indeed, the contention that the Trusteeship Council never took control of the Palestinian issue following Israel痴 declaration of Independence can not be disputed. However, my assertion is that the UN elected to pursue the implementation of UN GAR 181 through negotiations because the alternative was to send troops into land occupied by Israeli, Jordanian, and Egyptian armed forces. If one reviews historical records, it would become clear that the UN, after the 1948 war, sought to have the parties negotiate a settlement to their disputes along with addressing the issue of the Palestinian refugees. The outbreak of the 1967 war only complicated these efforts. UN SCR 242痴 call for the withdrawal of Israeli forces from the occupied territories and the signing of peace agreements among the parties to establish secure and recognize borders was completely consistent with the UN痴 efforts since 1948.

    Just to make sure that my statements and the record are clear, it is important to add some more historical facts to the discussion regarding the 1967 war. While the bluster and rhetoric of President Nasser and other Arab leaders in the region was strong and provocative, none of them pursued a plan for active warfare with Israel. It is true that they were responsible for allowing Palestinian fadayeen raids on Israel (in some cases on Israeli civilians) throughout 1950s up to 1967, and Israel retaliated with equal brutality in cross-border raids in the West Bank and Gaza on Palestinian villages. The action that sparked the events leading to the 1967 war came from the Russians. They showed both the Egyptians and the Syrians intelligence information the indicated that Israel was planning a clandestine full military invasion of Syrian territory. The Russians knew this information to be a fabrication (perhaps by them), but conceivably wanted to create problems for the US in the Middle East as part of the Cold War. Nonetheless, the Russians did not express any doubts to the Egyptians or Syrians as to the authenticity of the information. With what he thought as clear indication of Israel痴 hostile intent, President Nasser stepped up his war rhetoric, mobilized the army, closed the Straits of Tiran, and, practically, expelled UN peacekeepers from the Sinai. However, he wanted independent verification of Israeli intentions and so he sent one of his senior military commanders to Syria to 双bserve the Israeli military buildup that the Russian information pointed to. The commander came back and reported that there was no buildup at all. At that point, President Nasser痴 reputation as an Arab leader was at stake especially after his rhetoric against Israel galvanized Arab public opinion and created waves of nationalism across the Arab world. But he could not ignore the fact that Israel, at that time, was not showing signs of hostile intent, and so he ordered the Egyptian army divisions he sent to the Sinai into defensive positions, instead of withdrawing them, to save face. The Syrians also mobilized their army in the Golan Heights, but they were not going to attack without the support of Egypt, as they could not match Israeli forces by themselves (which, incidentally, was the reason behind their signature of the mutual defense pact with Egypt and Jordan). Jordan came into this picture only after the war began. The rest of this story you already know. The point I am trying to make is that Israel had a choice after it mobilized its army, and it chose to attack. Was Nasser culpable for putting his pride and reputation above the welfare of Egypt, Syria, Jordan, and Israel? Absolutely. Was the 1967 war the result of 羨rab aggression against Israel? Absolutely Not!

    With respect to the comment regarding the 1973 war, President Sadat tried, through indirect channels, to start peace discussions with Israel in 1970 and 1971. Prime Minister Golda Meir would hear none of it. President Sadat understood that Egypt was in a position of weakness following the lightening speed with which the Israeli forces dealt with the Egyptian army in 1967 and owing to the fact that time is on Israel痴 side. He knew he had to achieve some sort of military victory before his peace overtures can be taken seriously. His intent was to have the Egyptian army penetrate the 訴mpenetrable Bar Lev line on the banks of the Suez Canal and go about half way into the Sinai then seek to enter into peace discussions with Israel as an equal partner. As it turned out, some of his military commanders were over-zealous and took army units further into the Sinai than they should, which strained their supply line and made them easy targets for the Israeli forces after they were supplied with fresh weapons courtesy of Uncle Sam. Again, the point of this history tirade is that Egypt too embraced UN SCR 242 and sought to end hostilities through a peace agreement. Israel eventually took these efforts seriously, which eventually led to the Camp David agreement in 1978. Incidentally, I saw in a previous comment that someone thought that the rest of the Arab world cut Egypt off because it made peace with Israel. While this is technically true, the trouble that Jordan, Syria, and the Palestinians had was that, without Egypt, they did not have much leverage in negotiating a peace deal with Israel. Egypt was Israel痴 strongest enemy, and, they reasoned, the Israelis would have been more amenable to concessions to achieve peace with all of them if it meant securing a peace with Egypt. President Sadat痴 efforts took this potential leverage away.

    套if self-determination is so important and if Egypt didn't acquire the Sinai until the British attacked the Ottoman empire (to defend the Suez Canal), shouldn't Israel have turned over the Sinai to the native Bedouins rather than "return" it to Egypt?

    I am not sure I understand the question. The Sinai was always part of Egypt even when the Ottomans occupied it as far as I am aware. We would probably have to go back to the times of the Pharaohs to find out when it actually became a part of Egypt, but I think this would not be relevant to our discussion.

    Sameh Mobarek
    Chicago, Illinois, USA

  • Tuesday July 09, 2002 at 4:35 pm
    According to a news item today, Israel has now passed a law that restricts land sales in the occupied territory. Transfers can only be to a "Jew," and the term is undefined. We must applaud any law which requires land transfer to be accompanied by payment. Questions of title and prior ownership are certainly secondary to establishing proper ethnic balance. The Israeli desire for land is admirable. The question is whether land so acquired can be protected against claims of prior owners, and what will be the legal and other costs of defense.

    Omar Rumi
    Malaysia

  • Tuesday July 09, 2002 at 11:49 pm
    Let me say a few words about the quotation from the late Professor Julius Stone, above: "There is no rule of international law which requires a lawful military occupant, in this situation, to wait forever before putting the control and government of the territory on a permanent basis." I am a great admirer of Stone's for his early pathbreaking books on the theory of law. When I started to read his book on Israel and Palestine, I looked forward to a deep intellectual experience. Unfortunately, the book came up very shallow and contrived. (My review of it is in the Yale Law Journal, which you can access directly from my web page). Take a close look at the above quotation. Stone is literally right that there is no rule of international law that requires a lawful military occupant to wait forever before putting the land under permanent governmental control (i.e., seizing the land). If I were teaching a class, I'd ask you to find the magic trick in Professor Stone's formulation. All right, class, what is it? Ah, yes, there in the fifth row. You say that there is no law requiring the occupant to wait forever because such a law would be silly and would never come up, just as there is no law requiring the US to wait forever before annexing the Atlantic Ocean. So the magic trick is elsewhere. Yes? You've got it -- it's in the term "lawful military occupant." You see, Nazi Germany was a lawful legal occupant of France, in one meaning of the term, namely, that it exercised its occupancy powers according to the international law of occupancy. (This law, among other things, forbids disproportionate reprisals, and says that reprisals in all cases have to wait until there has been a good faith effort to find the resister). So, if Israel is a "lawful military occupant" in this sense, it nevertheless is quite different from the sense that the status of the occupation is lawful. Israel's initial occupation was lawful because it was fighting a war, and in occupying the West Bank (for example), it simply did what had to be done to protect its army. But that occupation can NEVER give TITLE to Israel, any more than Nazi occupation of France could ever have given TITLE of France to Germany. So it turns out that Professor Stone is being a bit devious here, and as I say, that was not uncharacteristic of his book as a whole.

    Anthony D\'Amato
    Northwestern Law School
    Illinois, US

  • Wednesday July 10, 2002 at 5:44 am
    Maybe the "lawful military occupant" is of no relevance here, because which state or organization will "[put] the control and government of the territory on a permanent basis", if not Israel? Is Israel "occupying" the territories, if the territories don't belong to anybody, as Mr Mobarek seems to believe? In that case, you could argue that what took place after 1967 is indeed what Lauterpacht calls "lawful territorial change". But you could also argue that Israel's territory did not change de jure.

    It is a coincidence that in this case the lawful territorial change took place by way of "defensive conquest". In the context of the 1967 war, the conquest of the West Bank was indeed a defensive conquest. Mr Mobarek says that the Arab states were "absolutely not" the aggressors, but he admits Israel wasn't the aggressor either. Was the 1967 war a war without an aggressor, or is one allowed to identify the aggressor by the events that led to the war?

    But you can leave the conquest out of the picture. You can argue that Israel's territory didn't change. The borders of a state don't have to be frozen into the de facto borders at the time of its recognition, as Mr Anderson suggests. Neither do I believe that the recognition of a state can be interpreted as a prohibition of "lawful territorial change" later. This interpretation is only needed if you want to argue that Jordan had a title to the West Bank, because Britain recognized Jordan after its "aggressive conquest".

    If you leave the conquest out of the picture. If you want to stick to Israel's de facto borders at the time of independence, Israel had no neighbour in the east. Who does the West Bank belong to? Jordan? I think Lauterpacht's statement applies here: "Territorial change cannot properly take place as the result of unlawful use of force". So we come back to the validity of the partitioning of the mandate. The UN? But does the Trusteeship Council know that it has jurisdiction over the West Bank?

    Do you want to argue that the UN is the guardian of the West Bank on the basis of UNGAR 181? On what ground is UNGAR 181 valid? Because Israel says it was founded on the basis of UNGAR 181? Does Israel's existence depend on UNGAR 181 in the future, so that in order to exist, the Arab state has to be created as well? This touches on the legal problem of recognition. The state of Israel has been recognized. Have other states made the recognition contingent on UNGAR 181? If they have, can states recognize a state "conditionally"? I think international law is against such a view.

    Jari Nousiainen
    Finland

  • Wednesday July 10, 2002 at 2:37 pm

    I should clarify that I do not believe that the West Bank and Gaza belonged to no one. My assertion was that these territories belonged to the inhabitants of the 羨rab state of Mandate Palestine. Notice that I did not make the distinction between Arab or Jew in defining inhabitants because I think that beyond the boundaries established by UN GAR 181, the issue of actual legal title of the land would have to be addressed as it should be addressed in the 遷ewish state as well.

    With respect to Professor Lauterpacht痴 quote, I read the exception he granted for 斗awful territorial change to mean the return of territory taken by unlawful use of force to its 斗awful sovereign. If one goes back to the specific portion of Professor痴 Lauterpacht痴 opinion that Mr. Kopelman quoted, does not one reach this conclusion? For ease of reference, I am reiterating the quote as follows:

    "Territorial change cannot properly take place as the result of unlawful use of force. But to omit the word unlawful is to change the substantive content of the rule and turn an important safeguard of legal principle into an agressors's charter. For if force can never be used to effect lawful territorial change, then if territory has once changed hands as a result of the use of unlawful use of force, the illegitimacy of the position thus established is sterilized by the prohibition upon the use of force to restore the lawful sovereign. (emphasis added) This cannot be regarded as reasonable or correct."

    It would seem reasonable to assert that Israel, Jordan, and Egypt cannot be considered 斗awful sovereigns of the land they occupied in 1948 and 1967. Unfortunately, I cannot find the full text of Professor Lauterpacht痴 opinion so I am not sure if I am taking his words out of context. For example, how does he define 斗awful sovereign?

    With regard to 1967 war, I have to admit that the events preceding the start of the war creates quagmire with respect to the identity of the aggressor. Were the Arabs states aggressors because they reacted to deliberate misinformation that indicated that they were about to be attacked (because of the Mutual Defense Pact, Egypt would have been obligated to attack Israel if Israel attacked Syria)? The fact still remains that Arab armies never crossed the borders with Israel prior the start of the war nor showed indications that they were about to either. Was Israel the aggressor because it actually initiated the war? Israel痴 offensive action was taken out of the clear concern that the Arab armies would indeed attack despite indications to the contrary. There would be a strong, and valid, argument that it was an offensive action taken from a defensive posture. What is clear, however, is that once Israel neutralizes the potential threat through peace agreements, its continued occupation of the territories would no longer be for defensive purposes. Furthermore, it seems unreasonable that any of these events would have implications with regards to actual title of the occupied land.

    Sameh Mobarek
    Chicago, Illinois, USA

  • Thursday July 11, 2002 at 4:01 am
    I think what makes or breaks this case is the question of recognition. Israel has been generally recognized, Palestine has not. Jordan rescinded her claim on the West Bank in 1988. In practice that meant that the border was moved to the Jordan river. The fact that Israel was recognized before this time, doesn't alter the conclusion. On the contrary, the fact that Israel was recognized and Palestine was not, means that the Jordan river could now be the border only between Israel and Jordan. That would bring the situation back to what it had been during the mandate.

    Jari Nousiainen
    Finland

  • Thursday July 11, 2002 at 7:10 am
    Non-recognition could be a valid reason for dismissing the claims to inependence of countries such as Chechnya, Kosovo, Nargono-Karabakh and the Turkish Republic of Northern Cyprus. However, Palestine is recognized by over a hundred countries worldwide, has ben a non-voting UN General Assembly member since 1998, and a UN Observer since 1974 (as "Palestine" since 1988 and as the PLO from 1974 to 1988.) "Palestine" was immediately recognized by all the Arab League governments (except Jordan) after her first declaration of independence in Gaza in 1948, and by China, Russia and many other countries after her second declaration of independence in Algiers in 1988.

    Mike Anderson
    Toronto, Canada

  • Thursday July 11, 2002 at 2:42 pm
    One thing is certain. The issues involved in the Israeli-Palestinian dilemma are much more complicated than the black and white approach that some of our political leaders are advocating.

    Going back to UN GAR 181 again, I have always been of the opinion that the logic of the various agreements and resolutions before and after UN GAR 181 maintain its legal validity, despite its arguably current political obsolescence. Professor D但mato pointed to the authoritative nature of the resolution as another reason, or perhaps the only reason, for its legal validity. Since the concept of authoritative ruling is a new one to me, I did some quick research on the subject, but I am still bewildered by the idea. Professor D但mato explained in a previous comment that 套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. While I agree with the conclusion about the reasonableness of the resolution, I am still struggling to understand what made it an authoritative finding. As I understand, an authoritative finding would require unanimity or near unanimity among General Assembly members to qualify a resolution as such. Clearly, the support for UN GAR 181 was far less than unanimous so how can UN GAR 181 be an authoritative finding? I realize that I may be over-simplify a complex concept, but I would be grateful if Professor D但mato can expand on his comment of June 11 addressing the subject.

    Another issue that was raised before was the authority of the Trusteeship Council over Mandate Palestine. I have held the belief that the General Assembly, through the Trusteeship Council, had jurisdiction over Mandate Palestine once Great Britain abandoned the mandate and abstained from voting on UN GAR 181. Article 79 of the UN Charter said:

    乃he terms of trusteeship for each territory to be placed under the trusteeship system, including any alteration or amendment, shall be agreed upon by the states directly concerned, including the mandatory power in the case of territories held under mandate by a Member of the United Nations, and shall be approved as provided for in Articles 83 and 85.

    Once Great Britain abandoned its mandate, it ceased to be a mandatory power over Mandate Palestine, and, therefore, did not have any special authority to consent to the terms of inclusion of Mandate Palestine into the UN trust system. Furthermore, if one views UN GAR 181 as equivalent to an agreement to include Mandate Palestine under the UN trust system, and thus giving the UN the authority to implement its partition plan, Great Britain痴 abstention from voting for or against the resolution, while not a clear indication of agreement, can be reasonably taken as tacit approval of the action.

    A weakness in the foregoing logic that has been bothering me for sometime is the inclusion of the words 都tates directly concerned in Article 79 above. While the rejection expressed by Palestinian Arabs, who did constitute a state at the time, would not count in determining the validity of UN GAR 181, the dissenting vote of Egypt, Lebanon, and Syria does present a problem. All three countries were states and, arguably, concerned ones because of the common borders with Mandate Palestine. In my mind, I rationalized that since the international borders of Mandate Palestine would not be impacted by the partition plan, the concerns of Egypt, Syria, and Lebanon would not be material enough to make them 田oncerned states within the intentions of Article 79. I realize that my stand on this jurisdictional issue goes contrary to the expressed views of several participants in this forum, including Professor D但mato, so I would welcome hearing the counter-arguments.

    Mr. Nousiainen, can we have a sidebar? I would appreciate it if you can email me at sameh@mobarek.com. Thanks.

    Sameh Mobarek
    Chicago, Illinois, USA

  • Thursday July 11, 2002 at 10:05 pm
    Please note the following correction in the comment above:

    "Palestinian Arabs, who did NOT constitute a state at the time, would ..."

    Sameh Mobarek
    Chicago, Illinois, USA

  • Friday July 12, 2002 at 12:13 am
    A special session of the UN General Assembly was called on April 16, 1948 to discuss an American proposal to temporarily place the Palestine Mandate under the UN Trusteeship Council. However a majority of the delegations opposed this plan and it was never implemented.

    Mike Anderson
    Toronto, Canada

  • Friday July 12, 2002 at 3:18 am
    The latest exchanges only show that recognition is what matters. The Trusteeship Council is definitely out of the picture, so don't try that one.

    Mr Anderson said: "Non-recognition could be a valid reason for dismissing the claims to inependence of countries such as Chechnya, Kosovo, Nargono-Karabakh and the Turkish Republic of Northern Cyprus". He may have used this as a rhetoric device to show that Palestine doesn't need to be recognized, but I don't see the logic.

    Besides, it has been suggested that Jordan handed the West Bank over to a non-existent state. Exactly! But if Palestine was a non-existent state, it was not a state.

    Independence movements can be subjects of international law, depending mainly on you political sympathies, but the states are the only ones with a territory, and that is what counts here. If independence movements had a territory, they wouldn't be independence movements but states.

    To Mr Anderson's statement "Palestine is recognized by over a hundred countries worldwide" one I can anwer by asking if Palestine has been recognized by them as a STATE. Let me remind you that many countries recognize the Knights of Malta and the Holy See, but this doesn't make them states. So even a recognition isn't enough. And what has traditionally been meant by recognition is establishing diplomatic relations (although I must admit that lack of diplomatic relations doesn't automatically imply that the state hasn't been recognized).

    In any case, this conflict isn't only between Israel and the Palestinians, but between whole blocs of state, depending on who has recognized whom. On the other hand, even if Israel and most Arab states don't recognize each other, they are members of the UN, which acts here as a sort of facilitator, but Palestine is not. Being a non-voting member of the UN GA doesn't mean that Palestine is recognized as a state. As long as it is not a state, it cannot have international borders. I think the Oslo Accords only confirm that. Whatever else has been said has only been legal arabesques.

    Jari Nousiainen
    Finland

  • Friday July 12, 2002 at 3:57 pm

    If Israel had actively supported statehood for the Palestinians, rather than vigorously opposing it, the argument that it is the proper and lawful beneficiary of Palestinian non-statehood would be more palatable.

    Lack of international diplomatic status does not defeat a proper title to land that has been held by individuals for generations.

    I am interested in the number and quality of schools, hospitals, and other public facilities constructed for the Palestinian population in the occupied territory while it has been under Israeli auspices. The perception is that there a lack of due diligence in this regard. Worse, the destruction of property is equivalent to active mechanised warfare against an unarmed people.

    Israel appears tawdry when it puts forward territorial claims after generating this cruel history.

    Omar Rumi
    Malaysia

  • Friday July 12, 2002 at 5:13 pm
    My assertion with respect to the Trusteeship Council is limited in time to the period during which UN GAR 181 was passed. The General Assembly was well within its authority, as it is defined in the UN Charter, and acting on behalf of the Trusteeship Council when it passed the resolution. Subsequent events and the further involvement, or lack of it, of the Trusteeship Council in the implementation of the resolution are related but wholly different issues.

    As to the issue of recognition, I think Mr. Anderson makes a good point. Many countries recognized Palestine, although not a state in the legal sense. Their recognition was less for the legal form of a state and more for the rights of the Palestinian people that would normally be part of the legal form of a state.

    Furthermore, I am not sure I agree that only a state can have territories. A state, in its most basic form, is a political construct that allows inhabitants of different territories to interact. However, the territorial rights of inhabitants are not dependent upon the existence of a state. In addition, to achieve the legally recognized form of a state, a population would have to have a governing body that can, inter alia, (a) be defined by its control over a permanent population, (b) engage in foreign relations on behalf of its constituency, and (c) exert control over land with distinct and recognized territorial boundaries. All of the constructs of statehood can be directly impacted by an occupying power. Therefore, to assert that a people痴 territorial rights should only be recognized within the narrow definition of statehood would be tantamount to an occupier痴 doctrine. There are, and were, many people around the world that have territorial rights with recognized international borders without such territory being called a 壮tate (e.g. Guam, Puerto Rico, Tibet, Barbados before 1966, and many more). When Jordan ceded control of the West Bank to the PLO, it was a recognition of the territorial rights of the Palestinians to the land.

    Sameh Mobarek
    Chicago, Illinois, USA

  • Monday July 15, 2002 at 4:16 am
    Again, I fail to see the logic. Let's start by saying that if you want this case to be complex, it will. If you want this case to be simple, it is. In the classical doctrine, all the land area on this planet is divided between states. There is no land area that doesn't belong to a state de jure (except Antarctica). What is the state that the West Bank and Gaza belong to? Jordan rescinded her claim on the West Bank, so the border between Israel and Jordan moved to the Jordan river, making the West Bank Israeli territory. The Gaza strip shouldn't have existed as a separate legal entity in the first place, so it is Israel too. Egypt doesn't want it.

    If you put it this way, you don't even understand what the problem is. It is questionable to put forward a partition plan as a legal solution, especially when that plan was never actualized. The partition plan was a political document, and its future fate will be decided by some other political document.

    As Kosovo has been mentioned above, I will use it to make my point. Kosovo is just as "state-like" as Palestine. It is cut out from the Yugoslav central administration by the UN administration. Does Kosovo have a territory in the sense of international law? With all the international legal frills, the Yugoslav government still has the power to rectify the Kosovo southern border with Macedonia, and the UN administration in Kosovo has upheld that decision. Doesn't that show that Kosovo is in international law part of Yugoslav territory?

    Kosovo has one more advantage over Palestine. Its borders inside Yugoslavia are defined by the uti possidetis doctrine. So if it ever becomes independent, it basically has its borders ready, with the recent corrections. Palestine hasn't such borders. The only legal borders are those of the mandate. Palestine would like to have them back, but it can't, because Israel is in the way. The only border between Israel and Palestine that is even remotely sustainable is the armistice line between them which has survived the Arab aggression in 1948, but even that was a result of acquisition by use of force.

    We can't keep changing the international law at every Palestinian whim.

    Jari Nousiainen
    Finland

  • Monday July 15, 2002 at 9:03 am
    Palestinians want their PERSONAL propery returned to them. If it happens to be within the borders of the state of Israel that is acceptable to them, so long as they are given Israeli citizenship and enjoy equal rights under Israeli law.

    Unfortunately, Israel feels "non-Jews" (however they may define the class) are not welcome as either residents or citizens. Israeli law does not protect the rights of "non-Jews" (basically, Palestinians)

    So long as Israel adheres to a "Jews only" policy, usurping the land of native Palestinians whenever they choose to do so, the Palestinians will make unpleasant neighbors.

    How the establishment of legal borders and eventually a Palestinian state will correct the problems caused by this fundamental attitude of ethnic superiority is unclear.

    Omar Rumi
    Malaysia

  • Monday July 15, 2002 at 8:49 pm
    If Mr. Nousiainen is correct in asserting that the rule of "uti possidetis" applies to the former Palestine mandate, there are enormous implications. Not only could Jordan not legally annex the west bank, but Israel could not legally annex the golan heights, and Palestine could not legally become an independent country. There are three major problems with this arguement. In the first place, Resolution 181 called for two independent states, not one. Secondly, all of the current mideast peace negotiations are being conducted with a view toward the creation an independent Palestinian state, not an autonomous Palestinian entity. Thirdly, both Egypt and Jordan recognize Palestine as being an independent state -- and they signed peace treaties with Israel which affect the status of gaza and the west bank, respectively.

    Mike Anderson
    Toronto, Canada

  • Monday July 15, 2002 at 11:00 pm
    An afterthought: Britain granted Malaya her independence in 1957, and Singapore her independence in 1963. Malaya and Singapore united to form "Malaysia" later that year, and at the same time Britain ceded her colonies of Sarawak and North Borneo to this new united state, from which Singapore seceeded in 1965. Thus a newly independent state can legally acquire additional territory from a colonial power without violating the rule of "uti possidetis". If the rule of "uti possidetis" is applied to the former Palestine Mandate, then it ought to apply to the British declaration of April 27, 1950 recognizing the Israeli-Jordanian armistice line as the boundary, since Britain still retained residual sovereignty in the Mandate until that date -- but the 1949 armistice line must be regarded as a rigid boundary which cannot be legally changed in the final Peace Treaty, and Jerusalem must be seen as being a corpus seperatum because the British recognized it as such in 1950.

    Mike Anderson
    Toronto, Canada

  • Tuesday July 16, 2002 at 12:04 am
    Yet another afterthought: This rule also applies to Mandates and Trust Territories -- the British partitioned the British Cameroon Mandate in 1961 and ceded the northern half to Nigeria and the southern half to the Cameroon Republic. The rule of "uti possidetis juris" means that once a colonial or mandatory power grants independence to or cedes land to a newly independent state, the boundaries must subsequently remain eternally rigid and unchanged.

    Mike Anderson
    Toronto, Canada

  • Tuesday July 16, 2002 at 4:49 am
    Very nice, and very informative as always, except I didn't "assert" that the uti possidetis applies to the Palestinian mandate. I said - or implied - that it doesn't, but obviously that doesn't make any difference. Rather, I said basically the same thing as you now "assert": "all of the current mideast peace negotiations are being conducted with a view toward the creation an independent Palestinian state". Funny that you didn't mention UNGAR 181 in this context, which is the point of this discussion. But if I said that uti possidetis applies, it doesn't mean "that the boundaries must subsequently remain eternally rigid and unchanged". We have concluded more than once that the state can cede portions of its territory to another (existent) state. If rigidity is part of your conception of uti possidetis, then why don't you say that UNGAR 181 prescribes the uti possidetis? That is certainly a rigid plan, considering the effects it has been ascribed above, especially taking into account that it was never implemented.

    If Palestine is a state, why doesn't it take Israel to the ICJ over a territorial dispute? Could it be that it has no territory which could be in dispute? And then it is no state, which could be a party in a dispute at the ICJ, no matter what UNGAR 181 and Egypt and Jordan say.

    Jari Nousiainen
    Finland

  • Tuesday July 16, 2002 at 10:05 pm
    At the risk of offending the sensibilities of some of the intellectual giants participating in this forum, I have to point out that there is really no dispute to adjudicate in the ICJ. Israel did not officially lay claim to the West Bank and Gaza. The occupied territories had been, and continue to be, administered by the IDF since 1967. If Israel had made claims over the land then there may possibly be a case to bring before the court. It would also mean that Israel would be forced to extend the equal rights and protection that Israeli law gives to Israeli citizens to millions of Palestinians. Incidentally, this illuminates the brilliance of the settlement strategy. It easier to just simply confiscate land and build Jewish settlements on it than it is to try to assert legal claim to the territories and risk the 租ilution of Israel痴 Jewish character. Arguably, the strategy created a de facto argument for annexation of part of the occupied territories, which can be used when the weakness of the de jure argument becAme so apparent as to make it useless in supporting annexation.

    British Cameroon mandate does present an interesting case. While the British did indeed partition the mandate and the partitioning was accepted under international law, the fact that the people of British Cameroon freely voted to split the mandate and merge the resulting territories with their neighbors was fundamental to the legitimacy of the move. Turning back to the Palestine Mandate, if the UN did not have the power by virtue of its Charter to partition the mandate, then it could be validly argued that the principle of uti possidetis applied, and that the administrative boundaries of the mandate should have been fixed. In addition, one can further argue that the partition plan envisioned in UN GAR 181 did not have weight once the collective majority in the mandate territory, namely the Palestinian Arabs, rejected it. However, without the support of UN GAR 181, one would then have to assert that Israel痴 declaration of independence had no basis in law. After all, it had been argued in many cases over the years that the principle of uti possidetis cannot be used to justify independence for an ethnic minority from a larger state on the sole basis of the right for self-determination. Had the Palestinian Arabs accepted the partition, then the case of the British Cameroon would have been apposite. There had been exceptions to this rule in particular insistences where the ethnic minority suffered a great deal of injustices under the rule of the majority (e.g. the case of Bangladesh and Pakistan).

    To obviate any obfuscation, let me be absolutely clear that I do not accept the foregoing argument for the simple reason that I still believe that UN GAR 181 did indeed carry the necessary force in law to allow for the existence and legitimacy of both the Jewish and Arab states.

    As to the argument that sovereignty over the West Bank and Gaza should fall to Israel by default, I cannot see the logic either. Perhaps if one looks at this issue from another prospective, the logic of my assertion might be clearer. The Palestinian Authority has been exercising all the powers that would normally be ascribed to a government. The only two things separating Palestinians from realizing their aspirations of statehood are (1) control of the territories (2) within defined boundaries. It is fairly evident that Palestinians have no doubt of where the boundaries of Palestine are. Furthermore, two of Palestine痴 three neighbors would concur to the Palestinian view of the demarcation lines along the mutual borders. Israel, which exerts both military and administrative control of the West Bank and Gaza, disagrees and asserts that it would only agree to these issues, as well as to withdrawing from the territories, through negotiations, which is well within its rights. Now, to claim that Israel痴 position of control gives it a right of sovereignty over the territories would be tantamount to rewarding its occupation and a disincentive to seeking its end.

    Sameh Mobarek
    Chicago, Illinois, USA

  • Wednesday July 17, 2002 at 3:59 am
    The sovereignty over the West Bank and Gaza has fallen to Israel by default. You said that Israel (IDF) has (military and administrative) control over the territories, while the Palestinian Authority doesn't. Israel did not have to "officially lay claim to the West Bank and Gaza", because the Oslo Accords did it for her. So, you don't have to point out that there is really no dispute to adjudicate in the ICJ. I did it for you.

    It is wrong to "assert" that, without the support of UN GAR 181, Israel痴 declaration of independence had no basis in law. Maybe the UN made a mistake in admitting Israel as a member (and not admitting Palestine)? The recognition of Israel made its declaration of independence valid afterwards. That is how recognition normally works, except in the Palestinian case, where you have the recognition first, and the state (possibly) afterwards. It is also interesting that "over a hundred countries worldwide" have recognized Palestine, but only Egypt and Jordan have been mentioned.

    The uti possidetis rule is very interesting. The borders of the mandate are the only ones that have been recognized both de jure and de facto. That is why they should be the point of departure. There can be one or more states within these borders. The problem is that Mr Anderson argues that Jordan could "puncture" these outer borders and create a rigid border inside them. The violation of the borders of the mandate would indeed do away with the uti possidetis, but then it is hard to see why the UNGAR 181 partition plan or the armistice line should be held sacred. I would prefer keeping the borders of the former mandate intact and create states within them. It is mainly Mr Anderson's own view that borders are fixed eternally depending on the point of time at which the recognition is granted that can be accused of rigidity. If you deny the uti possidetis effect of the borders of the mandate, Israel could indeed "legally annex the golan heights" according to Mr Anderson's own argument.

    So, yes, I think the uti possidetis rule should be applied, but only to the borders of the former mandate, not inside them, as the arguments in favour of the UNGAR 181 partition plan and the 1949 armistice line suggest. The word "occupation" should be limited to occupation outside these borders, like the Israeli occupation of southern Lebanon, which can also be qualified as a "defensive conquest". Conversely, the creation of the Palestinian state should be seen as ceding territory. Unless and until territory is ceded to it, Palestine is not a state. At this point, it may be regarded as an autonomous entity within the Israeli state, pretty much like Kosovo inside Yugoslavia. If Palestine is already a state, what was all the recent talk of a "provisional state" about?

    Jari Nousiainen
    Finland

  • Wednesday July 17, 2002 at 5:19 pm
    I fail to see how the Oslo accord could be used to support the contention that Israel has sovereignty, aside from that resulting from occupation by force, over the West Bank and Gaza. There is no mention anywhere in the accord that Israel is 祖eding territories to the Palestinians. In fact, throughout the agreement, it talks about the 層ithdrawal and 喪edeployment of Israel痴 military forces from the area. While the accord does not specifically acknowledge the fact, it has all the likely characteristic elements of an initial 奏ermsheet for a peace agreement between states.

    When the UN granted Israel membership among its ranks, it did so while emphasizing the need for implementation of UN GAR 181. As support, I offer the following from the preamble of UN GAR 273, which granted Israel membership in the UN:

    賠 Recalling its resolutions of 29 November 1947 [UN GAR 181] and 11 December 1948 [UN GAR 194] and taking note of the declarations and explanations made by the representative of the Government of Israel before the ad hoc Political Committee in respect of the implementation of the said resolutions

    There was no ambiguity during the discussion in the UN at that time about the need for the full implementation of UN GAR 181. In addition, Foreign Minister Eban, during the discussion in the UN at that time, said 徹n 14 May 1948, the State of Israel had proclaimed its independence, in accordance with the explicit instructions of the General Assembly itself. He also said that 杯he Assembly resolution 181 (II) of 29 November 1947 contained a recommendation that when either State envisaged by that resolution had made its independence effective (emphasis added), "sympathetic consideration should be given to its application for membership in the United Nations in accordance with Article 4 of the Charter of the United Nations". The heart of Israel痴 argument for membership in the UN rested on UN GAR 181. Therefore, there cannot be any question that the legal existence of Israel owes its foundation to UN GAR 181. Incidentally, I added an emphasis in the foregoing quote to note that even the government of Israel acknowledged the existence and independence of the Arab state of UN GAR 181.

    With regard to the Kosovo example (I am not sure who initially brought up this example), it is important to note two things about the territory. First, Kosovars had equal rights under Serbian law to participate and be represented in the greater Serbian government. Second, non-Serbian Kosovars, while representing the majority within Kosovo itself, represented a small minority within greater Serbia so there was, and continues to be, no risk of Serbia becoming more Albanian in character as a result of absorbing Kosovo. As I said before, setting aside the validity of UN GAR 181 for the moment, I would be willing to accept that the boundaries of the Palestine mandate were fixed by the principle of uti possidetis. Nonetheless, one cannot reasonably assert that the mandate boundaries were fixed and, at the same time, assert that the entire territory of the mandate should fall under the control of a strictly Jewish government. The fact is that the West Bank and Gaza were not terra nullius. While there was no legal form of a state on the land, the occupants of the land had, and continue to have, rights to it. At the very least, one should reasonably assert that this new expanded Israel should include as citizens all the Palestinian Arabs that have legitimate claim of residency in the Palestine mandate. It would also be reasonable to assume that, if a democratically elected government takes control of this new state, Israel would become Palestine by virtue of the Palestinian Arab majority that would ensue from such territorial expansion.

    As a point of clarification, I only mentioned Egypt, Jordan, and Israel in my previous comment because I was discussing issues related to physical boundaries. It is true that many other countries, aside from Egypt and Jordan, recognize Palestine, which only goes to support other arguments I made in the past.

    Sameh Mobarek
    Chicago, Illinois, USA

  • Wednesday July 17, 2002 at 6:16 pm
    As an addendum to the note above and to make sure that the record is straight, the Israeli campaign in Lebanon would have been a 租efensive conquest if then Defense Minister Ariel Sharon limited military operations to what had been approved by both the Knesset and Prime Minister Begin. The approved campaign specified that Israel would invade Lebanon to create a 40-mile 礎uffer zone to protect Israel痴 northern borders from attack by guerrilla fighters in Lebanon. THAT would have been a defensive move. WHat actually happened had little to do with defense.

    Sameh Mobarek
    Chicago, Illinois, USA

  • discussion continues