1997 marks an auspicious year for world Jewry as it commemorates the 100th year of the holding of the first Zionist Congress in Basle, the 80th anniversary of the Balfour Declaration, the 50th anniversary of the United Nations General Assembly Resolution on the partition of Palestine and the 30th anniversary of the Six Day War.
Remarkably however, no attention has been given to the forthcoming 75th anniversary of the promulgation by the League of Nations of the Mandate for Palestine on July 24, 1922, and the British Memorandum relating to Transjordan, approved by the Council of the League less than three months later on September 16, 1922.
The Mandate came into being at the time of the distribution of former Turkish lands conquered by the victorious allied countries in World War I. The only competing claims were those of Jewish nationalism and Arab nationalism. The Mandate did not come into existence by way of Jewish encroachment on already vested sovereign Arab lands. The territorial allocation made to the Arabs was more than 100 times greater in area and hundreds of times richer than the area of Palestine mandated for the establishment of the Jewish National Home.
The otherwise excellent web site of Israel's Ministry of Foreign Affairs does not include the Mandate in its collection of historical documents. Indeed one can search the Internet in vain to find a complete copy of the text of the Mandate.
Whilst the Balfour Declaration was a critical step in the formation of the Jewish homeland in Palestine it had no legal effect. The Mandate, on the other hand, was the legally binding expression of the International Community of Nations. The Mandate continues to have important legal ramifications until this very day, which continue to bind the United Nations as the successor to the League of Nations.
The Mandate document expressed some very important principles, including.
1. recognition of the historical connection of the Jewish people with Palestine and the grounds for "reconstituting" their national home in that country;
2. the creation for the first time of an identifiable territory called "Palestine" with defined territorial boundaries which incorporated what is to-day called Israel, Judea and Samaria (The West Bank), Gaza and the State of Jordan;
3. safeguarding the civil and religious rights (but not the political rights) of existing non-Jewish communities in Palestine;
4. facilitating Jewish immigration and encouraging "close settlement by Jews on the lands, including State lands and waste lands not required for public purposes";
5. reserving the right, in the territory lying between the River Jordan and the eastern boundary of Palestine, to postpone or withhold application of such provisions of the Mandate as may be considered inapplicable to the existing local conditions. Pursuant to this provision, Britain as the Mandatory for Palestine presented a Memorandum to the League Council on the 16th September, 1922, declaring inapplicable to the area to-day called Jordan (then called Transjordan) those provisions of the Mandate dealing with the establishment of the Jewish National Home in Palestine. However, Jordan remained part of Palestine and 22 of the 28 Articles of the Mandate continued to apply to Jordan until 1946.
All this might have been ancient history but for the occurrence of four subsequent events which could soon result in the Mandate being resurrected onto the current political stage.
The first two events were the birth of the United Nations in 1945 and the demise of the League of Nations in 1946. Transjordan, which comprised 75% of Palestine, was granted its independence in 1946 at the last session of the League of Nations. The remainder of Palestine, however, was still under the League of Nations Mandates System, as were a number of other territories around the world. To deal with these continuing Mandates, Article 80 was introduced into the United Nations Charter.
Article 80 provided that nothing in the International Trusteeship System set up under the United Nations Charter should be construed in or of itself to alter in any manner the rights whatsoever of any states or peoples or the terms of existing International Instruments to which members of the United Nations might respectively be parties. This Article was dubbed "The Palestine Article" because it had been incorporated into the Charter as a result of intense Zionist lobbying. The Jews were concerned to ensure that the terms of the Mandate for Palestine were fully implemented in their favor and not allowed to die with the League of Nations.
Their efforts were vindicated when the International Court of Justice in an advisory opinion on South West Africa (1950 I.C.J.Reports 128) decided that the substantive obligations of the Mandate over that territory continued in force despite the dissolution of the League of Nations. The Court affirmed that these obligations remained the essence of "the sacred trust of civilization" despite the dissolution of the League of Nations.
The third event of crucial importance was the 1948 War of Independence, which at the conclusion of hostilities left Jordan in control of Judea and Samaria and Egypt in control of Gaza. Jordan attempted to annex Judea and Samaria but only Britain and Pakistan recognized the annexation. Egypt was content to administer Gaza and not seek to annex it. Judea, Samaria and Gaza (about 5% of former Palestine) were therefore the only territories of the Mandate in which sovereignty remained unallocated between Arabs and Jews. However, by virtue of Article 80 of the United Nations Charter the terms of the Mandate for Palestine were still alive and kicking in relation to those areas. The use of the term "West Bank" to describe Judea and Samaria did not emerge until 1950 when King Hussein coined that name in an attempt to obliterate the Jewish character of these areas.
The fourth event of significance occurred in 1967 when Israel gained possession of Judea, Samaria and Gaza as a result of the 6-day War and subsequently engaged in settling Jews in these areas.
These events and the Mandate itself have become of the utmost importance in 1997 because one can deduce from them the following -
Judea, Samaria and Gaza are not "occupied Arab lands" but are in fact areas of the Mandate which are still to be dealt with in accordance with the terms of the Mandate;
All Jewish settlements presently established in Judea, Samaria and Gaza accord with the Mandate encouraging close settlement in these areas by the Jews. They are not illegal in International Law;
There are already two successor sovereign States in the former territory called "Palestine". One is the Jewish State of Israel and the other is the Arab State of Jordan. Together they exercise sovereignty in over 95% of the Mandate area. It is only in the areas of Judea, Samaria and Gaza that sovereignty remains undetermined and the terms of the Mandate uncompleted;
The Mandate does not provide for a separate Arab State to be created in Judea, Samaria and Gaza. Indeed the Arab residents of Judea and Samaria enjoyed political rights as citizens of Jordan from 1948 until 1988. There is no reason why this status cannot be recreated.
Further Jewish settlement in these areas is to be encouraged in compliance with the express terms of the Mandate.
It is ironic therefore to see Resolution after Resolution in the United Nations General Assembly condemning Israel for building on Har Homa, planning new settlements or expanding existing settlements, when, by the terms of Article 80 of its own Charter, the U.N. should be affirming such actions as being entirely consistent with the terms of the Mandate the U.N. is obliged to uphold.
The P.L.O. takes an entirely different view. The P.L.O. Charter accepts "Palestine" as the territory "with the boundaries it had during the British Mandate". Yet the Charter then forthrightly declares that the "Balfour Declaration, the Mandate for Palestine and everything that has been based on them, are deemed null and void."
Of course, the P.L.O. is obliged to revoke these clauses of its Charter under the terms of the Oslo Agreements. When one realizes the implications of the P.L.O. doing so, its continuing reluctance to honor that obligation becomes understandable. Submitting itself to International Law is not a priority on the P.L.O. agenda.
However, this was the pain the P.L.O. was required to bear if the Oslo negotiations were to have any chance of success. Were the P.L.O. to now repeal these provisions, any claim by the P.L.O. to create a second Arab State in Palestine, in addition to Jordan, would be greatly weakened.
The continued application of the Mandate to Judea, Samaria and Gaza highlights the fact that Oslo was doomed to failure from the start, because the wrong negotiating partners were chosen. The proper partners to negotiate the future of Judea, Samaria and Gaza and of the Jewish and Arab populations residing in those areas should be the sovereign Governments of Jordan and Israel - the two successor States to the Mandate for Palestine.
Such negotiations would have a reasonable prospect of success because they would be predicated on firm historic, geographic and demographic bases. Oslo possessed none of these attributes and the results are now become plain for all to see.
The 75th anniversary of the Mandate's birth should give the opportunity to both Arabs and Jews as well as the United Nations to revisit the Mandate's clear and unambiguous terms and to implement its provisions to final completion in Judea, Samaria and Gaza, so that Justice will finally be done to both peoples and peace be allowed to take over from violence and bloodshed.
David Singer is an Australian Lawyer and Convenor of "Jordan is Palestine International".