Article 80 and the UN Recognition of a “Palestinian State”

September 22, 2011 10:58 am 11 comments

The Signing of the United Nations Charter in 1945.

In the entire debate now taking place on whether the United Nations Security Council or General Assembly has the right to approve the application of the “Palestinian Authority” to be recognized as a new member state of the UN, almost no mention is made of the legal fact that the UN itself is barred by its own Charter from acting upon or approving such an application. The reference here is, of course, to Article 80 of the UN Charter, once known unofficially as the Jewish People’s clause, which preserves intact all the rights granted to Jews under the Mandate for Palestine, even after the Mandate’s expiry on May 14-15, 1948. Under this provision of international law (the Charter is an international treaty), Jewish rights to Palestine and the Land of Israel were not to be altered in any way unless there had been an intervening trusteeship agreement between the states or parties concerned, which would have converted the Mandate into a trusteeship or trust territory. The only period of time such an agreement could have been concluded under Chapter 12 of the UN Charter was during the three-year period from October 24, 1945, the date the Charter entered into force after appropriate ratifications, until May 14-15, 1948, the date the Mandate expired and the State of Israel was proclaimed. Since no agreement of this type was made during this relevant three-year period, in which Jewish rights to all of Palestine may conceivably have been altered had Palestine been converted into a trust territory, those Jewish rights that had existed under the Mandate remained in full force and effect, to which the UN is still committed by Article 80 to uphold, or is prohibited from altering.

As a direct result of Article 80, the UN cannot transfer these rights over any part of Palestine, vested as they are in the Jewish People, to any non-Jewish entity, such as the “Palestinian Authority.” Among the most important of these Jewish rights are those contained in Article 6 of the Mandate which recognized the right of Jews to immigrate freely to the Land of Israel and to establish settlements thereon, rights which are fully protected by Article 80 of the UN Charter.

It should be common knowledge that under the Mandate, all of Palestine was reserved exclusively for the establishment of the Jewish National Home and future independent Jewish State, as was previously decided at the San Remo Peace Conference that took place in April 1920. Or put another way, no part of Palestine was allotted for an Arab National Home or state, since Arab self-determination was being generously granted elsewhere – in Syria, Iraq, Arabia, Egypt and North Africa – which has led to the establishment of the 21 Arab states of today, over a vast land mass from the Persian Gulf to the Atlantic Ocean. There is thus no necessity for a new independent Arab State in the specific area of former Mandated Palestine reserved for Jewish self-determination, most particularly, in Judea, Samaria and Gaza. Creating such a state out of Jewish land would be blatantly illegal under Article 80 of the UN Charter and beyond the legal authority of the UN itself.

In this respect, neither the League of Nations nor its successor, the United Nations, ever had sovereign rights over the land we Jews call Eretz-Israel. As a non-sovereign, the UN has no power whatsoever to allot territory to the “Palestinian Authority” where the allotted territory already belongs to the Jewish People.

Moreover, there is no article in the UN Charter which gives either the Security Council or the General Assembly or even the Trusteeship Council the power to create a new independent state. If the UN had such power, then logically it would also have the inverse power to “de-create” or dismember an existing state, a power it certainly does not enjoy under the UN Charter. If, theoretically speaking, this power did exist, the UN would be in effect a world legislature that could make or unmake states by its own volition, a power that would put in jeopardy the present world order.

For the foregoing reasons, the bill introduced in the US Congress by Ileana Ros-Lehtinen is definitely the proper course of action to follow. UN illegality needs to be roundly condemned and stopped dead in its tracks by an appropriate punitive measure, exactly as Ros-Lehtinen has proposed. Her bill would be even more worthy if it were to include a direct reference to Article 80 and to the fact that the UN has no legal power to create a state or to allot another state’s territory for that purpose, accomplished through the devious or underhanded means of accepting the applicant’s request for membership in the world body.

11 Comments

  • A few days ago Australia’s Foreign Minister Julie Bishop released an interview to The Times of Israel suggesting that, contrary to conventional diplomatic wisdom, the settlements may not be illegal under international law. In these last few years a growing number of politicians and scholars have expressed similar positions. Many of them argue that the results of the 1920’s San Remo Conference and more than this the inclusion of the principles contained in the Balfour Declaration in the text of the Mandate of Palestine, assured to the Jewish people the exclusive right to create their “national home” on “the whole country of Palestine, not a mere part of it”.

    In this respect, the Levy Report – released on 9 July 2012 by a special committee appointed in late January 2012 by Israeli Prime Minister Benjamin Netanyahu – has represented a sort of “watershed”. It clarified that “with the establishment of the United Nations in 1945, the principle of recognizing the validity of existing rights of states acquired under various mandates, including of course the rights of Jews to settle in the Land of Israel by virtue of the above documents, was determined in article 80 of its charter”. According to the Levy Report, Article 80 of the UN Charter implicitly recognizes the Mandate for Palestine.

    The late Eugene Rostow, former dean of Yale Law School, also known for being a key draftee of the UN resolution 242, further clarified these aspects explaining that “a trust” – as in Article 80 of the UN Charter – “does not end because the trustee dies”. Rostow’s argument, which is repeated in the Levy report, is that although the League of Nations had ceased to exist, the commitments of the League of Nations remain binding.

    These claims are marred by several inaccuracies, starting from the fact that the term “national home” had no mutually agreed upon meaning or scope and that the British government was under no definite obligation, since the Mandate made any Jewish immigration subject to “suitable conditions” and contained safeguards for the rights and position of the non-Jewish communities.

    Furthermore, as David Ben-Gurion clarified in July 1947 in front of the UNSCOP commission: “The Mandate, in fact, does not exist because it was violated by the Mandatory. We are not in favour of renewing it. […] we say that the original intention and the need, and what in our conviction is just, should be decided upon by the United Nations […] I said we do not ask for a Mandate any more, so it is not a question. The question does not arise on the Mandate”.

    Also the assertion that article 80 of the UN Charter implicitly recognizes the Mandate for Palestine is more complex than often claimed. One of the legal advisors to the Jewish Agency, Jacob Robinson, published a book in 1947 that presented a historical account of the Palestine Question and the UN. He explained that when the Jewish Agency learned that the Allied Powers had discussed at the Yalta Conference (February 1945) a new system of international supervision to supersede the system of mandates, the Agency decided to submit a formal request to the San Francisco Conference (April-June 1945) to obtain a safeguarding clause in the UN Charter. The proposed clause would have prevented a trusteeship agreement from altering the Jewish right to nationhood secured by the Balfour Declaration and the Mandate for Palestine. The UN Conference ignored the Agency’s request and stipulated in article 80 of the Charter that the UN organization did have the necessary power to conclude trusteeship agreements that could alter existing rights held under a mandate.

    Robinson tried to portray a legal setback as a victory and make everyone think that Article 80 of the Charter accomplished the Agency’s stated objective. Indeed, the final text adopted by the working paper for international trusteeship contained an exception that allowed trusteeship agreements to do exactly what the Jewish Agency had tried to prohibit. In Article 80’s words: “Except as may be agreed upon in individual trusteeship arrangements placing each territory under the trusteeship system, nothing in this chapter should be construed in and of itself to alter in any manner the rights of any state or any peoples in any territory”.

    Article 1 of General Assembly resolution 24(I) reserved the right of the UN to decide not to assume any function or power of the League of Nations. On the 19th March 1948, during the 271st meeting of the Security Council, US Ambassador Warren Austin cited UN General Assembly resolution 24(I) and pointed out: “The United Nations does not automatically fall heir to the responsibilities either of the League of Nations or of the Mandatory Power in respect of the Palestine Mandate. The record seems to us entirely clear that the United Nations did not take over the League of Nations Mandate system”.

    On top of all these considerations, the above mentioned thesis of “exclusivity”, besides being unjustified from an historical point of view – Palestine did not belong in an exclusive way to one single population in its entire history – is incorrect also from the legal perspective imposed since the early stage by London. Hubert Young, an important figure of the Foreign Office, wrote in November 1920 that the commitment made by London “in respect of Palestine is the Balfour Declaration constituting it a National Home for the Jewish People”. Lord Curzon corrected him: “No. ‘Establishing a National Home in Palestine for the Jewish people’ – a very different proposition”.

    The British White Paper of June 1922 – the first document that officially clarified the interpretation of the Mandate’s text – clarified that the Balfour Declaration does “not contemplate that Palestine as a whole should be converted into a Jewish National Home, but that such a Home should be founded ‘in Palestine’”. Furthermore, it stressed – and this is perhaps the most relevant aspect – that the “Zionist congress” that took place in Carlsbad in September 1921 had officially accepted that “the determination of the Jewish people to live with the Arab people on terms of unity and mutual respect, and together with them to make the common home into a flourishing community, the upbuilding of which may assure to each of its peoples an undisturbed national development”.

    It is only in light on these clarifications that the preamble as well as Article 2 of the Mandate text can and should be understood. It is noteworthy that Zionist consent to such interpretation was requested, and received, before the Mandate was confirmed in July 1922. In Weizmann’s words: “It was made clear to us that confirmation of the Mandate would be conditional on our acceptance of the policy as interpreted in the White Paper [of 1922], and my colleagues and I therefore had to accept it, which we did, though not without some qualms”.

    Israel’s right to defend itself against fanaticism is something that any person interested in peace cannot but support. Equally true is that the growing attempt to justify the colonization of the Palestinian territories through a problematic interpretation of history, international law, and international consensus is a dangerous threat that requires better public understanding. (e-IR)

  • George Peters

    Dr. Abraham Weizfeld. No not true. Hagar was a concubine not a wife. Ishmael is descendant but not inheritor.
    But the lineage, and all that was associated with it – was passed on to Isaac, and not to Ishmael. My belief is that the Muslims never got over this (they have very long memories), and so have constantly and venally appropriated much of Jewish history as their own.
    It is not a co-incidence that one of the most common Muslim names is Ibrahim.

    • ishmael was the son of agar the slave of Sarah, wife of Abraham. For the unbelieve of Sarah she had give Agar to Abraham for have the Son of the promise. But this wa not the Will of God. God gave them Isaac HE was the Son of the Promise and he generatet the People of God “Israel”. if you read in the Bibel, the filistin and many nations that was in the promiset Land, to Israel was comandet to destruct them completly, But they do’nt, and know They have the results! this nations was the dishendends of ishmael son of agar.

  • Natasha Langman

    Dear Abraham Weizfeld,
    Jewish Rights spelled clearly!
    There is NO room for misinterpretation what “the establishment in Palestine of a national home for the Jewish people” other then creating of a Jewish Nation means!
    In Article 22 in the “Covenant of the League of Nations” it says:

    “Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory.”

    The “Mandate for Palestine” was created on 24th April 1922 from the LEAGUE OF NATIONS and referring directly to Article 22 of the “Covenant of the League of Nations”. The Mandate was given over on 15th May 1948 to the modern State of Israel. Israel started to exist again. The intentions and International Law of the LEAGUE OF NATIONS to build a Nation “Eretz Israel” were fullfilled.

    Abraham Weizfeld wrote “A national home for the Jewish people is not a Nation-State.”

  • dr. abraham Weizfeld

    “A Pan-Syrian Congress, meeting in Damascus, had declared an independent state of Syria on 8 March 1920.[6] The new state included Syria, Palestine, Lebanon and portions of northern Mesopotamia which had been set aside under the Sykes-Picot Agreement for an independent Arab state, or confederation of states. King Faisal was declared the head of state. At the same time Prince Zeid, Faisal’s brother, was declared regent of Mesopotamia.
    The San Remo conference was hastily convened. Great Britain and France both agreed to recognize the provisional independence of Syria and Mesopotamia, while “reluctantly” claiming mandates for their administration. Palestine was composed of the Ottoman administrative districts of southern Syria. Under customary international law, premature recognition of its independence would be a gross affront to the government of the newly declared parent state. It could have been construed as a belligerent act of intervention without any League of Nations sanction.[7] In any event, its provisional independence was not mentioned although it continued to be designated as a Class A Mandate. … The decisions of the San Remo conference confirmed the mandate allocations of the First Conference of London (February 1920). The San Remo Resolution adopted on 25 April 1920 incorporated the Balfour Declaration of 1917. It and Article 22 of the Covenant of the League of Nations were the basic documents upon which the Mandate for Palestine was constructed.[9] Britain received the mandate for Palestine and Iraq; France gained control of Syria including present-day Lebanon.” http://en.wikipedia.org/wiki/San_Remo_conference

    San Remo conference – Wikipedia, the free encyclopedia
    en.wikipedia.org

    Abraham Weizfeld Evidently there is no mention of a “Jewish Israel”.

    Abraham Weizfeld: San Remo Resolution – April 25, 1920
    It was agreed –
    (a) To accept the terms of the Mandates Article as given below with reference to Palestine, on the understanding that there was inserted in the process-verbal an undertaking by the Mandatory Power that this would not involve the surrender of the rights hitherto enjoyed by the non-Jewish communities in Palestine … 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.

    Abraham Weizfeld A national home for the Jewish people is not a Nation-State. Even under the provisions of the Partition Plan Resolution 181 of the UN GA, the self-proclaimed State of Israel violates the boundaries set forth under the resolution. As for the recognition of the Palestine State, now acknowledged, if the Palestine State is not to be considered legal then the State of Israel would also have to be considered illegal, under international law.

    Abraham Weizfeld: Furthermore what is called ‘Eretz-Israel’ is not a State in itself but quite specifically a Land, upon which there has always been multiple Nations co-existing.

  • Jehudah Ben-Israel

    Clearly, the fundamental elements of international law that were set, at first, to avoid a conflict between Arab and Jew and then to resolve the Arab Israeli conflict have been:

    San Remo Conference decisions, 1920
    League of Nations decision, 1922
    UN Charter, Article 80, 1945

    The way to implement these have been designed and presented to the UN which passed, at its Security Council unanimously, UN Security Council 242, 1967

    One only wonders, if the Muslim-Arabs are so adamant against these elements of international law, do they actually seek peace or rather Israel’s demise…??

  • yes u hit the nail on the head. Now add the fact that G-D gave this land, all of it, to us. It is in the bible.

    Also there is no such thing as a palestinian, only an arab who happens to be living in Israel. Tell it to Pres Obama.

    • dr. abraham Weizfeld

      For sure David Hanson has not actually read the Torah (part of the old testament of the Protestant Bible).
      The covenant with the prophet Abraham was for the descendents to live on the Land forever, and that includes the Arabs, since the first born Ishmael was of an Egyptian mother, Hajjar. Since polygamy was fashionable at the time, there is no priority to be given to the first wife Sarah, who was Sumarian in any case.

      • Yochanan M Hummasti

        The Ishmaelites never were “Arabs” and in fact Ishmaelites intermarried with Arabs therefore it is erroneous to assert that the Arabs are Ishmael’s descendants. It is more appropriate to say that some Arabs are descended from Ishmael than it is to say the all Arabs are descended from Ishmael. Guillaume’s “The life of Muhammad”, p. 46.
        As to the Jewish National Home and the establishment of the modern state of Israel in Palestine under international law, the fact is when one reads the minutes from the San Remo Conference and the Anglo-American Treaty of 1924 the only conclusion one can come to is that the Mandate for Palestine was intended to facilitate the reconstitution of the ancient Jewish National Home and an Independent Jewish State in the area designated under the Faisal-Weizmann Agreement which included portions of the East “Bank” of the Jordan River up to the Hejaz Railway with a buffer zone between the railway and the Border of the Jewish National Home. Simply read Article 25 inserted in the Mandate for Palestine which was a temporary measure until such time as local conditions warranted Jewish settlement in the Eastern Portion of the Mandate Area. Emir Faisal specifically excluded the Western portion (west of the Hejaz Railway) of “Trans-Jordan” from the boundaries of the proposed Jewish State which he agreed to under the Faisal-Weizmann Agreement. Moreover, all he requested for his assistance in overthrowing the Ottoman Empire was an Independence for the Arabs from any foreign sovereign which he was given along with his family in the Mandate Areas of Iraq and Syria and included the Modern Kingdom of Saudi Arabia, from which they were kicked out since his Hashemite Family had ruled from Mecca since the 10th Century. Howard Grief has properly International Law on the subject and no one to date has presented a cogent argument which refutes his position!!!

  • This historical facts is absolutely necesarry to release to those countries in favour of a Palestinian state. Even it is necesarry information for the general public especially regarding the Jewish land rights to their Biblical land.

  • renanah goldhar-gemeiner

    As I wrote to Howard upon receipt of this letter a few days ago: “Yeah Howard!”
    Thank you for publishing this! Thank you Barry!
    Renanah

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