LEGAL CASE FOR THE LEGITIMACY OF THE MODERN STATE OF ISRAEL INTRODUCTION

LEGAL CASE FOR THE LEGITIMACY OF THE MODERN STATE OF ISRAEL INTRODUCTION The longing of Jews in the Diaspora throughout the centuries has been for their return to the land promised by God to Abraham, Isaac, Jacob, and their descendants1. Psalm 137 is a prime example of such longing: By the rivers of Babylon, there we sat down, yea, we wept, when we remembered Zion.... If I forget thee, O Jerusalem, let my right hand forget her cunning. If I do not remember thee, let my tongue cleave to the roof of my mouth; if I prefer not Jerusalem above my chief joy2. Similarly, at the end of the Seder meal during Passover, Jews proclaim their longing for their ancient homeland by saying, Next year in Jerusalem 3! Such longing continued to grow in the nineteenth century, culminating in the birth of the Zionist movement whose prime goal was to re-establish a Jewish state in the Promised Land. A number of events impacting Jews in the Diaspora such as bloody pogroms in Russia and the infamous Dreyfus Affair in France led inexorably to the conviction by many Jews that they had no choice but to return to their ancient homeland and re-establish a Jewish state. This led waves of Jewish immigrants from the Diaspora to return to their ancient homeland, then part of the Ottoman Empire, called Palestine, to settle and raise their families. This paper will lay out the legal 1 DANIEL R. LANGTON, CHILDREN OF ZION: JEWISH & CHRISTIAN PERSPECTIVES ON THE HOLY LAND 8 (1st ed. 2008). See also Genesis 17:19 (King James) ( And God said, Sarah thy wife shall bear thee a son indeed; and thou shalt call his name Isaac: and I will establish my covenant with him for an everlasting covenant, and with his seed after him.); Genesis 17:20 21 (King James) ( And as for Ishmael, I have heard thee: Behold, I have blessed him, and will make him fruitful, and will multiply him exceedingly; twelve princes shall he beget, and I will make him a great nation. But my covenant will I establish with Isaac, which Sarah shall bear unto thee at this set time in the next year.) (emphasis added); Genesis 26:2 3 (King James) ( [D]well in the land which I shall tell thee of: Sojourn in this land, and I will be with thee, and will bless thee; for unto thee, and unto thy seed, I will give all these countries, and I will perform the oath which I sware unto Abraham thy father.); Genesis 35:10 12 (King James) ( And God said unto him, Thy name is Jacob: thy name shall not be called any more Jacob, but Israel shall be thy name: and he called his name Israel. And God said unto him, I am God Almighty: be fruitful and multiply; a nation and a company of nations shall be of thee, and kings shall come out of thy loins; And the land which I gave Abraham and Isaac, to thee I will give it, and to thy seed after thee will I give the land.). 2 Psalm 137: 1, 5 6 (King James). 3 Benyamin Neuberger, Zionism, ISRAEL MINISTRY OF FOREIGN AFFAIRS (12 Oct. 1999), http://mfa.gov.il/mfa/ AboutIsrael/State/Pages/ZIONISM-%20Background.aspx [hereinafter Zionism]. 1

basis for the creation of the modern State of Israel in a portion of the territory which had encompassed the ancient kingdom of Israel as well as for the continuing right of Jews to settle throughout the territory of the Palestinian Mandate. Our discussion begins with the Balfour Declaration. * * * * * During the First World War, Great Britain and the Ottoman Empire were enemies. British forces fought Ottoman forces in the Middle East and ultimately captured Jerusalem and the rest of Palestine. In November 1917, British Foreign Secretary Arthur Balfour sent a letter to Baron Rothschild which read, in pertinent part, as follows: His Majesty s Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, 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 4. The letter became known as the Balfour Declaration. When it was sent, the language of the Balfour Declaration was simply aspirational. Britain possessed absolutely no lawful authority to assist in the creation of a Jewish homeland in any of the territory referred to in the letter. That would change. It must be acknowledged that Great Britain had also made certain promises to the Arabs during World War I 5 that, at the time, it also had no lawful authority to promise and that contradicted the promises set forth in the Balfour Declaration. Further, the Arabs opposed the principles set forth in Balfour Declaration from the outset, although Arab objections fell on deaf ears at the Versailles peace conference. Following the defeat of the German, Austro-Hungarian, and Ottoman empires in World War I, a series of peace treaties was negotiated. At the Versailles peace conference 6, President Woodrow Wilson was instrumental in the establishment of the League of Nations ( League ), which played a key role in managing the break-up of the Ottoman Empire. Following the Turkish renunciation of all claims to non-turkish territory (first, in the Treaty of Sèvres 7 and, then, in the Treaty of Lausanne 8 ), the international community, represented 4 Balfour Declaration 1917, YALE LAW SCHOOL: THE AVALON PROJECT, http://avalon.law.yale.edu/20th_century /balfour.asp (last visited 12 June 2014). 5 Pre-State Israel: The Hussein-McMahon Correspondence, July 15 August 1916, JEWISH VIRTUAL LIBRARY, http://www.jewishvirtuallibrary.org/jsource/history/hussmac1.html (last visited 18 June 2014). 6 At the Versailles peace conference, it was decided [t]hat the Jews be invited to return to Palestine and settle there, being assured by the conference of all proper assistance in so doing that may be consistent with the protection of the personal (especially the religious) and property rights of the non-jewish population, and being further assured that it will be the policy of the League of Nations to recognise Palestine as a Jewish State as soon as it is a Jewish state in fact. In line with this President Wilson on 3 March 1919 declared: I am persuaded that the Allied Nations with the fullest concurrence of our own government and people are agreed that in Palestine shall be laid the foundations of a Jewish Commonwealth. CHAIM WEIZMANN, THE LETTERS AND PAPERS OF CHAIM WEIZMANN: SERIES B 557 (vol. 11 1983). 7 Treaty Between the Allied and Associated Powers and Turkey Signed at Sèvres, 10 Aug. 1920, reprinted in 1 THE TREATIES OF PEACE, 1919 1923, at 789 (The Lawbook Exch. 2007) (Lawrence Martin ed., 1924) [hereinafter Treaty at Sèvres]. The Treaty of Sèvres was negotiated between the victorious powers in World War 2

by the League of Nations, assumed control of the former Ottoman territories. Among the decisions made by the League was the decision to create a system of Mandates 9. Three Mandates were envisioned for former Ottoman territories: The Mandate for Syria (which included Lebanon) 10, the Mandate for Palestine 11, and the Mandate for Mesopotamia (Iraq) 12. The Mandates for Syria and Mesopotamia explicitly envisioned that the Mandatory powers (i.e., France and Great Britain, respectively) would prepare the inhabitants for selfgovernment and independence 13. The Mandatory for Palestine was given no such charge. Instead, the express terms of the Balfour Declaration were included in the language of the Mandate for Palestine. Hence, the Palestinian Mandate charged the Mandatory power (i.e., Great Britain 14 ) to implement the terms of the Balfour Declaration 15. As such, the Balfour Declaration was no longer simply an internal British document; it had become a part of binding international law 16. Accordingly, from the creation of the Mandate for Palestine in 1922 until Britain s departure from Palestine in 1948, Great Britain was under the internationally sanctioned, legal obligation to help establish a Jewish homeland in Palestine. In other words, the right of I and the Ottoman Empire. Although the Treaty contained very harsh terms regarding Turkey, it was nonetheless accepted by the Turkish Sultan. Some factions of the Turkish military, however, refused to recognise the Treaty or honour its terms. Instead, the Army fought to win back Turkish territory that had been ceded to Greece, Armenia, and other powers under the Treaty of Sèvres. The Turkish army ultimately prevailed and demanded the negotiation of another peace treaty. This led to the Treaty of Lausanne, which was signed in 1923. 8 Treaty of Peace with Turkey Signed at Lausanne, 24 July 1923, reprinted in 1 THE TREATIES OF PEACE, supra note 7, at 957. The Treaty of Lausanne ultimately replaced the Treaty of Sèvres. 9 League of Nations Covenant art. 22. 10 French Mandate for Syria and the Lebanon, Aug. 1922, THE AMERICAN SOCIETY OF INTERNATIONAL LAW, http://www.ndu.edu.lb/lerc/resources/french%20mandate%20for%20syria%20and%20the%20lebanon.pdf. 11 See Mandate for Palestine, League of Nations Doc. C.529M.314 1922 VI (1922), available at http://unispal. un.org/unispal.nsf/0/2fca2c68106f11ab05256bcf007bf3cb [hereinafter Mandate for Palestine]. Note that the original Mandate for Palestine included the following territories: the current Hashemite Kingdom of Jordan, the current State of Israel, the Gaza Strip, the so called West Bank, and a slice of the Golan Heights. Maps: Palestine Under the British Mandate 1923 48, PALESTINE ACADEMIC SOCIETY FOR THE STUDY OF INTERNATIONAL AFFAIRS, http://www.passia.org/palestine_facts/maps/1923-1948-british-mandate.html (last visited 12 June 2014). Shortly after Great Britain assumed its responsibilities as Mandatory, it severed the territory currently called Jordan from the remainder of Palestine and re named it Transjordan. The British also foreclosed all Jewish settlement in Transjordan, thereby removing approximately 78% of the original territory of Palestine from Jewish settlement. Britain also ceded the slice of the Golan Heights to the Mandate for Syria. Transjordan, THE BRITISH EMPIRE, http://www.britishempire.co.uk/maproom/transjordan.htm (last visited 12 June 2014). 12 The Mandate for Mesopotamia never got beyond a draft. What was intended for Mesopotamia was laid out in arts. 27, 62 and 94 of the Treaty of Sèvres. See Treaty at Sèvres, supra note 7. 13 The High Contracting Parties agree that Syria and Mesopotamia shall... be provisionally recognised as independent States subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. Treaty at Sèvres, supra note 7. 14 One of the first things Great Britain did as Mandatory was to divide the Mandate for Palestine into two parts. The territory east of the Jordan River (constituting approximately 78% of the Mandate) was renamed Transjordan (and later became the Hashemite Kingdom of Jordan). The remaining area of the Mandate to the west of the Jordan River (constituting the remaining 22% of the Mandate) retained the name Palestine. It was in the smaller, western (i.e., rump) portion of Palestine that the Jews were allowed to settle pursuant to the Balfour Declaration; they were forbidden to settle in Transjordan. In one sense, Arab Palestinians already have an Arab Palestinian state, and it is Jordan. Hence, from this point on in the paper, when we refer to Palestine, we are referring to the smaller, rump portion of the original Palestine which lies generally between the Jordan River and the Mediterranean Sea. 15 See, e.g., Mandate for Palestine, supra note 11, at arts. 2, 4, & 6. 16 Once again, it must be noted that Arabs rejected the Balfour Declaration. Moreover, Arabs continued to rely on the promises made to the Arabs pursuant to the Hussein McMahon agreement. 3

Jews to establish a homeland in Palestine had become a principle established by, and recognised in, international law. Moreover, since the Mandate for Palestine was deemed a sacred trust 17, until the beneficiaries of the trust (i.e., the Jewish and Arab inhabitants of the Mandate territory) mutually agree to the terms of its termination, the trust s (i.e., Mandate s) terms remain valid and in force. And those terms are the terms contained in the Mandate for Palestine. Despite the fact that the Mandatory power withdrew as trustee in 1948, the terms of the trust (i.e., the terms of the Mandate) did not change. The terms of the trust exist independent of the presence or absence of a trustee. Whereas, for example, the Mandatory powers for Syria and Mesopotamia were directed to assist the inhabitants of those Mandates to establish the underlying institutions necessary to become independent states 18, nowhere in the Mandate for Palestine is there any express charge to prepare the inhabitants for eventual independence 19. No one disputes that the Arabs did not agree to the terms of the Mandate for Palestine (in fact, they openly opposed such terms, although their objections fell on deaf ears) and that there were tensions between the Arab and Jewish populations in Palestine, tensions that periodically erupted into open violence 20. This led to a number of investigations and reports about implementing the Mandate s terms 21. The Peel Commission, for example, even suggested that the rump portion of the original Mandate for Palestine be divided to create separate Jewish and Arab states out of the territory of Palestine. Jewish Palestinians concurred in the partition proposal, while Arab Palestinians rejected it 22. Following the Second World War, the war s toll on the British homeland and economy and the increase in violence between the Jewish and Arab communities in Palestine led Great Britain in 1947 to notify the United Nations (the successor organisation to the League of Nations) that Britain was going to withdraw its forces from Palestine in 1948 23. In response, the UN General Assembly created the UN Special Committee on Palestine (UNSCOP) to determine what should be done to resolve the Palestine question 24. Ultimately, 17 See Mandate for Palestine, supra note 11. 18 Treaty at Sèvres, supra note 7 ( The High Contracting Parties agree that Syria and Mesopotamia shall... be provisionally recognised as independent States subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone.). 19 Mandate for Palestine, supra note 11. 20 Examples of violence during this era include: Attacks on civilians in 1920 21 during violent riots in Jerusalem, Jacqueline Shields, Pre-State Israel: Arab Riots of the 1920 s, JEWISH VIRTUAL LIBRARY, http://www. jewishvirtuallibrary.org/jsource/history/riots29.html (last visited 16 June 2014), and Jaffa, SAHAR HUNEIDI, A BROKEN TRUST: HERBERT SAMUEL, ZIONISM AND THE PALESTINIANS 127 30 (I.B. Tauris 2001); dozens of Jews massacred in 1929 in Hebron, Pre-State Israel: The Hebron Massacre, JEWISH VIRTUAL LIBRARY, http://www.jewishvirtuallibrary.org/jsource/history/hebron29.html (last visited 16 June 2014), and Safed, Reign of Terror in Safed, GLASGOW HERALD, 14 Sept. 1929, at 10, the Arab Revolt of 1936 39, Pre- State Israel: The 1936 Arab Riots, JEWISH VIRTUAL LIBRARY, http://www.jewishvirtuallibrary.org/jsource/ History/riots36.html (last visited 16 June 2014); and 1948 ambush on medical convoy which killed 79 Jewish doctors and nurses in Kfar Etzion, Tom Wilson, Remembering Kfar Etzion, COMMENTARY MAGAZINE, 5 May 2014, http://www.commentarymagazine.com/2014/05/05/remembering-kfar-etzion/. 21 See, e.g., British Palestine Mandate: Text of the Peel Commission Report, JEWISH VIRTUAL LIBRARY, https:// www.jewishvirtuallibrary.org/jsource/history/peel1.html (last visited 13 June 2014). 22 Zionism, supra note 3. 23 Last British Troops Will Leave Palestine at End of Month; U.N. is Notified, JEWISH TELEGRAPHIC AGENCY, 25 June 1948, available at http://www.jta.org/1948/06/25/archive/last-british-troops-will-leave-palestine-at-end-ofmonth-u-n-is-notified. 24 The UN General Assembly voted to partition Palestine, i.e., that portion of the original Mandate west of the Jordan River. See Final Meeting of the Special Committee on Palestine, UNITED NATIONS DEPARTMENT OF 4

UNSCOP proposed partitioning Palestine into three parts: an Arab state, a Jewish state, and a UN-controlled portion around Jerusalem 25. Jewish Palestinians accepted the plan; Arab Palestinians rejected it. Despite widespread Arab objections, the UN General Assembly ultimately adopted the plan 26. Because the UN General Assembly has no authority under the UN Charter to enact binding resolutions 27, the terms of the partition resolution were not binding on either side. Had both sides accepted the partition plan, however, the borders of the two states would have been fixed by that plan. When Arab Palestinians rejected the plan, since there had been no meeting of the minds as to how (or even whether) to partition the Mandate territory, the terms of the partition plan bound neither side. Jewish Palestinians prepared to declare their independence and to defend their newly declared state, while Arab Palestinians worked with neighbouring Arab states to prepare for war to destroy the Jewish state and to re-claim all of Palestine. Upon Britain s withdrawal in 1948, the Jewish population declared the existence of the Jewish Palestinian State, to be called the State of Israel 28. On the day after it declared independence, the newborn State of Israel was attacked by five Arab armies 29. The resulting war continued into 1949, when armistice agreements between the nascent State of Israel and warring Arab states were negotiated, thereby ending formal hostilities 30. Each Arab party insisted that the lines separating the Israeli and Arab military forces be designated as armistice lines and not internationally recognised borders 31, a critical fact which means that PUBLIC INFORMATION PRESS AND PUBLICATIONS BUREAU, http://unispal.un.org/unispal.nsf/0/12e4593 CCD1EDDF185256A76006E1BD8 (last visited 29 July 2011). 25 G.A. Report, U.N. Special Comm. on Palestine, 2d Sess., Supp. No. 11, U.N. Doc. A/364 (3 Sept. 1947). See also The Partition Plan: Background & Overview, JEWISH VIRTUAL LIBRARY, https://www.jewishvirtuallibrary. org/jsource/history/partition_plan.html (last visited 13 June 2014). 26 G.A. Res. 181 (II) A, U.N. Doc. A/516 (29 Nov. 1947). 27 U.N. Charter art. 10. 28 Israeli independence was declared on 14 May 1948. 29 Milestones: 1945 1952, The Arab Israeli War of 1948, U.S. DEPARTMENT OF STATE: OFFICE OF THE HISTORIAN, https://history.state.gov/milestones/1945 1952/arab-israeli-war. (last visited on 23 June 2014) (Arab armies from Egypt, Jordan, Syria, Lebanon, and Iraq attacked the nascent Jewish state.) 30 General Armistice Agreement, Egypt Isr., 23 Feb. 1949, U.N.S.C. Doc. S/1264/Corr.1, available at http:// unispal.un.org/unispal.nsf/0/9ec4a332e2ff9a128525643d007702e6 [hereinafter Egypt Isr. Armistice Agreement]; General Armistice Agreement, Leb. Isr., 23 Mar. 1949, U.N.S.C. Doc. S/1296, available at http://unispal.un.org/unispal.nsf/0/71260b776d62fa6e852564420059c4fe; General Armistice Agreement, Jordan Isr., 3 Apr. 1949, U.N.S.C. Doc. S/1302/Rev.1, available at http://unispal.un.org/unispal.nsf/0/f03d55e48f77ab698525643b00608d34 [hereinafter Jordan Isr. Armistice Agreement]; General Armistice Agreement, Syria Isr., 20 July 1949, U.N.S.C. Doc. S/1353, available at http://unispal.un.org/unispal.nsf/ 0/E845CA0B92BE4E3485256442007901CC [hereinafter Syria Isr. Armistice Agreement]. 31 See, e.g., Jordan Isr. Armistice Agreement, supra note 30 ( The basic purpose of the Armistice Demarcation Lines is to delineate the lines beyond which the armed forces of the respective Parties shall not move.); id. at art. VI.9 ( The Armistice Demarcation Lines defined in... this Agreement are agreed upon by the Parties without prejudice to future territorial settlements or boundary lines or to claims of either Party relating thereto.); Syria Isr. Armistice Agreement, supra note 30 ( The basic purpose of the Armistice Demarcation Line is to delineate the line beyond which the armed forces of the respective Parties shall not move.); id. at art. V.1 ( It is emphasized that the following arrangements for the Armistice Demarcation Line between the Israeli and Syrian armed forces and for the Demilitarized Zone are not to be interpreted as having any relation whatsoever to ultimate territorial arrangements affecting the two Parties to this Agreement.); Egypt Isr. Armistice Agreement, supra note 30 at art. V.2 ( The Armistice Demarcation Line is not to be construed in any sense as a political or territorial boundary, and is delineated without prejudice to rights, claims and positions of either Party to the Armistice as regards ultimate settlement of the Palestine question.). 5

final international boundaries must yet be negotiated (which, in turn, means that the question of what specific territory a future Arab Palestinian state will own is still unanswered) 32. The 1948 49 Arab-Israeli war resulted in the expansion of Israeli sovereignty and control over more territory of the Mandate for Palestine than had been envisioned by the UNSCOP plan. Of utmost significance, the State of Israel became a recognised member of the family of nations and was admitted as a member state in good standing of the UN in 1949 33. The remaining parts of the territory of the Mandate for Palestine (i.e., the Gaza Strip and the West Bank), rather than form the territorial basis for an Arab Palestinian state, remained under military occupation of foreign Arab armies 34. Foreign Arab military occupation essentially remained in place for 18 years, until the end of the 1967 Six-Day War, when Jordanian and Egyptian forces withdrew from the West Bank and the Gaza Strip, respectively, and Israel acquired control of those territories 35. Moreover, Jewish settlement had not only been permitted, but encouraged and sanctioned, by international law 36, as set forth in the Mandate for Palestine 37, a legal document which has not yet been terminated 38. 32 As such, it is premature for Arab Palestinians to claim territories delimited by the 1949 Armistice lines (often referred to incorrectly as the pre 1967 boundaries ). 33 Admission of Israel to the United Nations General Assembly Resolution 273, ISRAEL MINISTRY OF FOREIGN AFFAIRS, http://www.mfa.gov.il/mfa/foreignpolicy/mfadocuments/yearbook1/pages/admission%20of%20israel %20to%20the%20united%20nations-%20general.aspx (last visited 12 June 2014). 34 The Question of Palestine and the United Nations, UNITED NATIONS 10 (2009), http://unispal.un.org/pdfs/ DPI2499.pdf (last visited 13 June 2014). The West Bank remained under occupation by Jordanian armed forces, and the Gaza Strip remained under Egyptian military occupation. 35 Israel also captured the Sinai Peninsula (up to the east bank of the Suez Canal) from Egypt and the Golan Heights from Syria. Since only the West Bank and Gaza Strip are territories claimed by the Palestinians to be part of the Arab state of Palestine, there will be no further discussion concerning the Sinai Peninsula or the Golan Heights. 36 See, e.g., Mandate for Palestine, supra note 11, at art. 6. Note that, under the League of Nations Covenant, the various Mandates were declared to be sacred trusts. League of Nations Covenant art. 22, para. 1. Yet, since a trust does not cease to exist merely because the trustee departs, absent a contrary legal disposition of the Palestinian Mandate, its terms remain in effect today, and Article 6 of the Mandate calls for Jewish settlement within the territory known as Palestine. Mandate for Palestine, supra note 11, at art. 6. Further, after Britain severed Transjordan from the Mandate for Palestine and forbade Jewish settlement there, the terms of the Mandate regarding Jewish immigration and settlement were confined to the remaining portion of the Mandate, i.e., the portion between the Jordan River and the Mediterranean Sea, which includes the West Bank and Gaza Strip. Accordingly, Jewish settlement of the West Bank and Gaza Strip remains lawful. Only a bilateral agreement between Jewish Palestinians (i.e., Israelis) and Arab Palestinians can change that. 37 See Mandate for Palestine, supra note 11. 38 The International Court of Justice s 1971 opinion on the Mandate for Southwest Africa determined that a Mandate would continue to remain in effect and would not be terminated, even if the Mandatory was terminated or ceased to exist: The Court will now turn to the situation which arose on the demise of the League and with the birth of the United Nations. As already recalled, the League of Nations was the international organization entrusted with the exercise of the supervisory functions of the Mandate. Those functions were an indispensable element of the Mandate. But that does not mean that the mandates institution was to collapse with the disappearance of the original supervisory machinery. To the question whether the continuance of a mandate was inseparably linked with the existence of the League, the answer must be that an institution established for the fulfillment of a sacred trust cannot be presumed to lapse before the achievement of its purpose. The responsibilities of both mandatory and supervisor resulting from the mandates institution were complementary, and the disappearance of one or the other could not affect the survival of the institution. That is why, in 1950, the Court remarked, in connection with the obligations corresponding to the sacred trust: Their raison d être and original object remain. Since their fulfillment did not depend on the existence of the League of Nations, they could not be brought to an end merely because this 6

Accordingly, the Mandate s terms remain valid, and among its terms are Articles 2, 4, and 6 39 which encourage Jewish settlement in Palestine (which territory includes the West Bank and Gaza Strip). Accordingly, despite widespread claims to the contrary, current Jewish settlement in those areas remains lawful. Following the 1967 war, the UN Security Council adopted Resolution 242 40. Note, first, that the language in this Resolution requires that Israel withdraw from territories 41 it captured not from all territories or all the territories it captured. We know from historical record that these were intentional omissions from the language of the Resolution 42. Keep in mind also that the territories that Israel acquired in 1967 included the non-mandate territories of the Sinai Peninsula and the Golan Heights and Israel has since returned the entire Sinai Peninsula to Egypt pursuant to a peace treaty between the two countries 43, the process envisioned in Resolution 242. Note, second, that the Resolution requires secure... boundaries 44 something that did not exist prior to 1967 as evidenced by the persistent attacks mounted against Israel from Arab-controlled territory and would not exist today if the status quo ante were reinstated. Note, third, that the Resolution calls for the termination of all supervisory organ ceased to exist. Nor could the right of the population to have the Territory administered in accordance with these rules depend thereon. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276, Advisory Opinion, 1971 I.C.J. 20 (June 21) (citations omitted) (emphasis added). 39 See The Mandate for Palestine, supra note 11, at art. 2 ( The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.); see id. at art. 4 ( An appropriate Jewish agency shall be recognised as a public body for the purpose of advising and co-operating with the Administration of Palestine in such economic, social and other matters as may affect the establishment of the Jewish national home and the interests of the Jewish population in Palestine, and, subject always to the control of the Administration to assist and take part in the development of the country. The Zionist organisation, so long as its organisation and constitution are in the opinion of the Mandatory appropriate, shall be recognised as such agency. It shall take steps in consultation with His Britannic Majesty s Government to secure the co-operation of all Jews who are willing to assist in the establishment of the Jewish national home.); see id. at 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.). 40 S.C. Res. 242, U.N. Doc. S/RES/242 (22 Nov. 1967), available at http://www.un.org/en/ga/search/view_ doc.asp?symbol=s/res/242%281967%29. 41 Id. at 1(i). 42 Lord Caradon, permanent representative of the United Kingdom to the United Nations from 1964 1970 and chief drafter of Resolution 242, aptly noted the following: Much play has been made of the fact that we didn t say the territories or all the territories. But that was deliberate. I myself knew very well the 1967 boundaries and if we had put in the the or all the that could only have meant that we wished to see the 1967 boundaries perpetuated in the form of a permanent frontier. This I was certainly not prepared to recommend. YORAM MEITAL, EGYPT S STRUGGLE FOR PEACE: CONTINUITY AND CHANGE, 1967-1977 49 (1997) (emphasis added). 43 See Peace Treaty, Isr.-Egypt, 26 Mar. 1979, available at http://unispal.un.org/unispal.nsf/0/ 3a159c13d5084c1085256ced00746faa?OpenDocument. Article 1 states, The state of war between the Parties will be terminated and peace will be established between them... Israel will withdraw all its armed forces and civilians from the Sinai... and Egypt will resume the exercise of its full sovereignty over the Sinai. Id. at art. I. 44 S.C. Res. 242, supra note 40, at 1(ii). 7

states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area... 45. That certainly has not yet occurred either. Note, finally, that in Resolution 242 there is no mention whatsoever of Palestine or Palestinians. That simply reflected the fact that no Arab Palestinian political entity was recognised to exist at the time by the international community. Nonetheless, Resolution 242 clearly affirms the existence of the State of Israel. Following the 1973 Arab-Israeli war, the UN Security Council adopted Resolution 338 46 which reiterated the call to implement the terms of Resolution 242. Thus, Israel s right to exist was again acknowledged by the international community. Also, more recently, then- PLO leader Yasser Arafat recognised Israel s existence as a State not only in a public statement 47 but also within the Israel-PLO Mutual Recognition letters between himself and then-israeli Prime Minister Yitzhak Rabin 48. Additionally, the terms set forth in Israel s 45 Id. 46 S.C. Res. 338, 2, U.N. Doc. S/RES/338 (22 Oct. 1973), available at http://www.un.org/en/ga/search/ view_doc.asp?symbol=s/res/338%281973%29 47 After a two-day meeting with five prominent American Jews here, a P.L.O. delegation led by Mr. Arafat said in a joint statement that the Palestinian parliament in exile last month had accepted the existence of Israel as a state in the region and declared its rejection and condemnation of terrorism in all its forms. At a news conference, Mr. Arafat said, We accept two states, the Palestine state and the Jewish state of Israel. Steve Lohr, Arafat Says P.L.O. Accepted Israel, N. Y. TIMES, Dec. 8, 1988, at a10, available at http://www.nytimes.com/ 1988/12/08/world/arafat-says-plo-accepted-israel.html (emphasis added). 48 One of the correspondences from Yasser Arafat to Yitzhak Rabin read as follows: September 9, 1993 Yitzhak Rabin Prime Minister of Israel Mr. Prime Minister, The signing of the Declaration of Principles marks a new era in the history of the Middle East. In firm confirmation thereof, I would like to confirm the following PLO commitments: The PLO recognizes the right of the State of Israel to exist in peace and security. The PLO accepts United Nations Security Council Resolutions 242 and 338. The PLO commits itself to the Middle East peace process, and to a peaceful resolution of the conflict between the two sides and declares that all outstanding issues relating to permanent status will be resolved through negotiations. The PLO considers that the signing of the Declaration of Principles constitutes a historic event, inaugurating a new epoch of peaceful coexistence, free from violence and all other acts which endanger peace and stability. Accordingly, the PLO renounces the use of terrorism and other acts of violence and will assume responsibility over all PLO elements and personnel in order to assure their compliance, prevent violations and discipline violators. In view of the promise of a new era and the signing of the Declaration of Principles and based on Palestinian acceptance of Security Council Resolutions 242 and 338, the PLO affirms that those articles of the Palestinian Covenant which are inconsistent with the commitments of this letter are not inoperative and no longer valid. Consequently, the PLO undertakes to submit to the Palestinian National Council for formal approval the necessary changes in regard to the Palestinian Covenant. Sincerely, Yasser Arafat Chairman The Palestine Liberation Organization Letter from Yasser Arafat, Chairman of the PLO, to Yitzhak Rabin, Prime Minister of Israel (9 Sept. 1993) (emphasis added), available at 8

treaty with Jordan 49 recognised the State of Israel, as did Palestinian Authority President Mahmoud Abbas 50. CONCLUSION Following the First World War, the newly established League of Nations, representing the international community of nations, adopted the principles of the Balfour Declaration and enshrined them in international law by including them in the Mandate for Palestine. The Mandate for Palestine charged the Mandatory power, Great Britain, to implement the terms of the Balfour Declaration in Palestine. As such, Jews were given the internationally secured legal right to settle throughout Palestine 51. Further, the rights of the inhabitants of the Mandate for Palestine constitute a sacred trust whose express terms have neither been fully implemented nor waived by mutual agreement of the inhabitants of the territory. Until one or the other occurs, the terms of the Mandate remain in effect, meaning, inter alia, that Jews have the continuing right to settle throughout Palestine Territory which includes the West Bank and Gaza Strip. Finally, widespread recognition of Israel by other states and Israel s accession to full membership in the United Nations establish beyond all doubt that Israel is and has been since at least 1949 a fully recognised and legitimate member of the community of nations. http://www.mfa.gov.il/mfa/foreignpolicy/mfadocuments/yearbook9/pages/107%20israelplo%20mutual%20recognition-%20letters%20and%20spe.aspx. 49 The Parties will apply between them the provisions of the Charter of the United Nations and the principles of international law governing relations among states in times of peace. In particular: 1. They recognise and will respect each other s sovereignty, territorial integrity and political independence. Treaty of Peace, Isr.-Jordan, 26 Oct. 1994, at art. 2.1, available at http://www.usip.org/sites/default/files/file/resources/collections/peace_agreements/ij_ peacetreaty_1994.pdf. 50 Palestinian Authority President Mahmoud Abbas... said that the Palestinian people recognize Israel s right to exist and they hope the Israeli government will respond by recognizing the Palestinian state on the borders of the land occupied in 1967. We Recognize Israel, They Should Recognize Palestine, JERUSALEM POST, June 30, 2011, http://www.jpost.com/diplomacy-and-politics/we-recognize-israel-they-should-recognize-palestine. 51 This right was limited to that portion of the original Mandate for Palestine generally lying between the Jordan River and the Mediterranean Sea. It was denied in the 78% of Palestine redesignated by the British as Transjordan. 9