Article 80 and the UN Recognition of a “Palestinian State”
by Howard Grief
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.