JERUSALEM LEGALLY BELONGS TO THE JEWS
Ted Belman
Israpundit, November, 2007

I attended a lecture tonight by Jacques Gauthier, a Canadian Lawyer who just received his PhD after twenty years of research on the legal status of Jerusalem and the writing of a dissertation of some 1300 pages with 3000 footnotes. He had to present his thesis to a panel of two leading international lawyers and one world famous Jewish historian. The reason for so many footnotes was to enable him to defend his thesis from intense attack by one of the lawyers who happened to be [a] Jewish anti-Zionist and who had represented the PA on numerous occasions. Gauthier is not Jewish.

Here's what he said in point form:

1. The Balfour Declaration of 1917 started the whole process but it didn't create international legal rights.

2. The San Remo decision made on 25 April 1920, incorporated the Balfour Declaration of 1917 and Article 22 of the Covenant of the League of Nations. It was the basic decision upon which the Mandate for Palestine was constructed. While the decision made at San Remo created the Palestine Mandate de-facto, the mandate document signed by Great Britain as the Mandatory and the League of Nations made it de-jure. It thus became a binding treaty in international law:

The High Contracting Parties agree to entrust, by application of the provisions of Article 22, the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory, to be selected by the said Powers. The Mandatory will be responsible for putting into effect the declaration originally made on November 8, 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country.

He pointed out that the Arabs weren't even mentioned but that civil and religious rights only were accorded other inhabitants. This thereby excludes political rights....

3. Article 22 of the Covenant of the League of Nations provides for the creation of mandates:

To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant.

The legal significance here is that "the well-being and development of such peoples form a sacred trust of civilisation". The Mandatory Power was the trustee of that trust.

4. The Palestine Mandate of the League of Nations included the following significant recital:

Whereas 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;

This had never happened before in history. Palestine was to be held for the Jewish people wherever they lived. No such recognition had ever been according to anyone else, anywhere, ever....

ART. 5 [of the Palestine 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.

ART. 6. The Administration of Palestine, while ensuring that the rights and position of other sections of the population are not prejudiced, shall facilitate Jewish immigration under suitable conditions and shall encourage, in co-operation with the Jewish agency referred to in Article 4, close settlement by Jews on the land, including State lands and waste lands not required for public purposes.

5. The United Nations took over from the failed League of Nations in 1945 and its Charter included

Article: 80...nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.

Thus the Palestine Mandate continued without change.

6. In 1947, the General Assembly of the UN passed Resolution 181 which became known as the Partition Plan pursuant to which both Jews and Arabs could announce their state.... This resolution also provided for a Special Regime for Jerusalem which had the following defined boundaries:

A. SPECIAL REGIME The City of Jerusalem shall be established as a corpus separatum under a special international regime and shall be administered by the United Nations.

B. BOUNDARIES OF THE CITY The City of Jerusalem shall include the present municipality of Jerusalem plus the surrounding villages and towns....

But this regime was to be limited in time. It was not to be an "international city " for all time as we have been lead to believe. The Statute elaborated by the Trusteeship Council [that] the

aforementioned principles shall come into force not later than 1 October 1948. It shall remain in force in the first instance for a period of ten years.... The residents the City shall be then free to express by means of a referendum their wishes as to possible modifications of regime of the City.

This provision for a referendum was of critical importance to the acceptance of Res. 181 by Ben-Gurion. He knew that the Jews were in a majority within these boundaries and would be in 10 years when the referendum was to be held. Thus he was confident that Jerusalem would return to Jewish hands. Keep in mind that the disposition of this area was to be determined not by Israel but by the residents of Jerusalem so defined....

After the '67 war in which Israel regained the land to the Jordan including Jerusalem, Res. 242 of the Security Council was passed authorizing Israel to remain in possession of all the land until they had "secure and recognized boundaries". It did not require Israel to withdraw from all of the territories and it was silent on Jerusalem....

In closing I would like to stress one more thing. By virtue of this preamble

"Whereas 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 United Nations, the League's successor, has recognized the Jewish historical rights to reconstitute their national home in Palestine. That's Zionism. "Zion" is Jerusalem. Thus the UN has recognized Jerusalem as the home of the Jewish people.