Legal Letters On Israel's Rights To Jerusalem

By Jonathan M. Meyer

Dear Itzhak:

First, you inquire as to the validity of Israel's annexation of Jerusalem, despite "UN resolutions" calling for its internationalization. Second, in reality, you are seeking an opinion as to the "formal" status of Jerusalem, as Israel's capital despite, what you indicate is the lack of international Constituative recognition thereof.

The answer to your inquiries partially flow from arguments set forth by Prof. Yehuda Blum, during a memorial lecture given in 1972 at the Hebrew University. First, Prof. Blum in advocating Israel's claim to all territories falling under its control in 1967, notes that the question of the strength and legitimacy of territorial title must be weighed between the real parties in interest.

Therefore, when analyzing the relative claims of all "parties" concerned, the question of the legitimacy of title crystallizes. Jordan obtained territories in 1948 as a direct result of initiating and conducting a war of aggression. Pursuant to the incontemporaneous rule of international law, Jordan never obtained title to the territories in question. Obtaining and maintaining the fruits of an "aggressive" war were prohibited by international law long before 1948. Examples such as the early "Kellogg-Briand" pact, the Charter of the League of Nations and Nuremberg, to mention but a few, all underscored the illegality of obtaining territory through the use of "aggressive" warfare.

However, in our scenario, not only did Israel obtain territorial control as the result of repulsing an aggressor state, and therefore territorial control was obtained as a result of successfully executing a defensive war, (which in and of itself provides the requisite legitimacy for Israels' claims), the original aggressor, in this case Jordan, NEVER HAD title at all. Therefore, the conclusion is abundently clear.

Although this argument establishes the superiority of Israeli claims verses Jordan, you most probably are asking about the Arab populations that were under former Jordanian control. Moreover, you probably are asking do they have any "indigenous" claims to the territories in question. First, as we all agree, they were and are not indigenous as compared to the original Jewish populous.

However, even assuming for arguments sake that they "did" have certain claims under international law (which in fact they did not) those rights were abrogated when this populous conspired and participated in both wars of aggression initiated against the state of Israel. As a result of actively participating with the aggressor states this populous was clearly acting "in pari delicto" with such states, and is therefore precluded from asserting any "independent claims" (assuming such claims ever existed, which they did not).

Moreover, due to the unique nature of our historical paradigm, including but not limited to the Balfour Declaration, Jewish presence, and historical ties, all of the above arguments are applicable with even greater force to the question of Jerusalem.

Itzhak, if you desire further specific technical clarification I will be glad to respond. Wishing you an easy fast,

Sincerely, Yonatan (Jonathan M. Meyer)

Dear Itzhak:

First, I take this opportunity to thank you for welcoming a response. Your arguments are cogent, however I have to disagree with your conclusions, both on factual grounds, and on questions of international law.

However, in response to your last request, yes, Dean Acheson once stated "that the law is not a suicide pact". National survival is a peremptory norm of international behavior. Moreover, as to your response to my second point:

"Regarding the "indigenous" Arab population, the "Palestinians claim that they, as a people, did not actively participate in the wars against Israel which were formally waged by the armies of the neighboring *states*. They fled as refugees from the war-torn country with the intention of returning when the fighting ceased. Thereafter they were pawns in the hands of their host countries. I think it would be difficult to actually associate the bulk of the "native" Palestinian Arab population with any belligerent military activity."

Please take note, that I use the term "ostensible" claims that may have existed. Moreover, I continue the argument by assuming, arguendo, that such "ostensible" rights may have existed at one time, however, even assuming they existed (which they did not), they have been abrogated. Moreover, please take note that the ICJ is authorized by its enabling statute, to exercise general principles of equity.Theoretically this means that actions taken, in pari delicto, bars a party from asserting a claim that has been abrogated as the result of intentionally culpable conduct.

As to the questions of "indigenousness" and "culpability", these may be subjects for historical debate, however, I think not. Rather, a question of anti-Jewish falsification of history to serve political ends. However, for clarification kindly refer to the following for quick and poignant reference:

As to the role and participation of the Arab populous under Jordanian control between 1948 and 1967, it should be noted that for approximately twenty years, the areas subject to international question were under Jordanian control,moreover they were annexed by Jordan. Furthermore, there was active representation and participation as "Jordanian citizens" in Jordanian representative bodies. During this time no indigenous claims were ever asserted.{please see (article by Prof. Malvina Halberstam, and the citations therein,) Volume 21, No.3 N.Y.U. J. Int'l L. & Pol., 465-488.}. Further evidence of "complicity" and "duplicity" throughout Yehuda and Shomron are easily documented. Moreover, previous statements made by the ostensible "indigenous" populous ALTHOUGH PRESENTLY cutting against Arab political interests, indicates the veracity of this original statement, that "the palestinian people are an integral part of the Arab nation." (The Palestinian National Charter, article 1, reprinted in The Middle East and North Africa 1989, at 89-90 (35th ed.).

"It seems to me that our case must rest on undermining the authoritative status of the UN resolutions. By proving that the UN is subject to economic and political pressures and intimidations from the more powerful member nations, we can claim that the resolutions regarding Jerusalem (and Yesha) are not binding. Also, isn't there a principle that says that a country's national existence takes precedence over international law".

As to the legitimacy of General Assembly & Security Council resolutions, if you archive you will find an extensive discussion on this subject between myself, Yehuda Poch and Brock Rozen. As stated therein, Security Council and General Assembly resolutions do not have the binding force of law. The UN plenary organs are not super legislative bodies, they merely, represent evidence of "opinion juris". Therefore, they do not have the force of law. Moreover, the mechanisms of the "veto" and "double veto" concerning permanent members in the Security Council are clearly representative of the "intentional" political nature of the Council. These mechanisms were instituted as "safety valves", in order to prevent the passing of resolutions inimical to the interest of one or more of the permanent members, thereby precipitating a potentially volatile military conflict.

However,you probably assume this to be a double edged sword. Since the UN derived its authorities to administer Eretz Israel from the original Mandate, you may question whether it had the Constituative authority to confer recognition. Be assured, that representative evidence of "opinion juris" is not to be equated with the powers of a legislative body enacting positive law. Moreover, even assuming, that article 43 of the UN Charter had been successfully implemented, (which it has not), the competencies of the Security Council are expressly limited by the Charter, to specific crises and potentially "critical" breaches of peace and/or threats of breaches of peace and security. This is where article 43 was envisaged. Therefore, as depicted at Dumbarton Oaks,and since inception, the UN was and is a political organization. Therefore, your question as to its relation to the corpus of international law is answered.

Finally, you claim: " That Jordan has no title to the territories is irrelevant. The territories were originally allotted to the Palestinian Arab people - the illegality of Jordan's occupation only strengthens their claim. The entire land of Palestine was under UN jurisdiction when the British Mandate was terminated. The UN partitioned the land into areas designated for the creation of both a Jewish state and an Arab state. It can be argued that the territories which did not become part of the Jewish state, still lawfully belong to the UN. Israel, then, should actually 'return' them to UN jurisdiction which undoubtedly will pass it on to thePalestinians for whom it was intended in the first place."

As to your last point and my first, the partition plan, even assuming that the UN had the authority to circumscribe the Balfour Declaration, (which was enacted pursuant to Mandatory authority delegated by the League of Nations, to Britain) on the basis of implied and/or express organizational powers, and despite historically inaccurate claims to the contrary, it is absolutely clear that the "populous" in question did tacitly and actively participate in the actions of the Arab League in 1948, and moreover, fully participated with the belligerents, including Jordan in supporting and engaging in an aggressive war against the State of Israel in 1967. Therefore, as fully set forth above, these " individuals" are precluded from asserting any independent "ostensible" claims, assuming such claims ever existed. (Again, as set forth above, it is interesting to note that during almost 20 years of Jordanian control of Yehuda & Shomron, no independent claims and / or claims for independence, were made from and/ or about YESHA, by our adversaries).

Moreover, the question of superiority of title when weighed between Jordan and Israel, further buttresses Israel's legitimate claims to the areas in question. Since Israel obtained legitimate title as compared to the illegitimacy of the Jordanian claims, (fruits of an aggressive war), and the populous in the areas formerly controlled by Jordan not only failed to assert any claims during a 20 year period, but furthermore actively participated in conducting and perpetrating wars of aggression aimed at Israel's annihilation, Israel's title is superior to all parties in interest.

In any event, I must reiterate that our "unique" historical, legal and religious claims not only act to further solidify our INTERNATIONAL LEGAL CLAIMS TO YEHUDA & SHOMRON, BUT FURTHERMORE, A FORTIORI, FURTHER SOLIDIFY LEGAL TITLE TO JERUSALEM UNDER JUS GENTIUM.*

Jonathan M. Meyer
Attorney at Law

* These arguments may be adjusted and are therefore applicable to both the Sinai and the Golan Heights.

Jonathan M. Meyer, Attorney at Law, B.A. Tel Aviv University, July, 1982; Juris Doctor, Fordham University School of Law, September, 1990; Admitted, N.Y.& The U.S. Court of International Trade; Member, The American Society of International Law; The American Bar Association, Section on International Law and Practice; The New York State Bar Association, International Law and Practice, Former Legal Advisor to the Executive Editor, Mr. M. K. Mallone, The Temple International and Comparative Law Journal ../...

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