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Op-Ed: PA Demands are an Assault on the Law of Nations

People assumed that when the UN General Assembly enacted a resolution, it became a part of international law. That is not so. UN General Assembly resolutions are only recommendations.
Published: Thursday, March 06, 2014 1:47 PM


Most people don’t understand that Palestine, or at least the alleged “Palestinian People” has no right to be sovereign even though as they read the UN charter it appears to say any “people” has the right to self-determination.  They haven’t obeyed the scholar’s imperative “read on” - in this case, to where the Charter provides for “sovereign equality”. These are the legal code words guaranteeing the territorial integrity of sovereign states.  

Most people also think that the basis for Israel’s sovereignty was the UN General Assembly’s Resolution 181, the Partition Resolution, not the 1920 San Remo Resolution and the Palestine Mandate.  The latter was a treaty approved by 52 League of Nations members in 1922 and by the US.  This Mandate provided detail for the Balfour Declaration policy adopted by the Allies word-for-word at San Remo.  It ultimately gave the Jews the political rights to all of Palestine west of the Jordan River — "from the River to the Sea", as the Arabs put it, referring to their aspirations to rid the world of the Jewish state.

People were persuaded as above because the UN said so in Resolution 3236 and the later Committee on the Exercise of the Inalienable Rights of the Palestinian People, dominated by Arabs and Africans, got a law professor at George Washington University, W.T. Mallison (and his wife Sally), to write a legal opinion to the effect that the 'occupation' of Judea and Samaria was illegal under international law.  

The Committee published it in pamphlet form in 1979.   It was entitled “An International Law Analysis of the Major United Nations Resolutions Concerning the Palestine Question". How many people on the street know anything at all about international law?  Most people reading it assumed that the UN General Assembly was like the Congress.  The Mallisons did nothing to disabuse them of this belief.  People assumed that when the UN General Assembly enacted a resolution, it became a part of international law. That is not so.  

These UN General Assembly resolutions are only recommendations.  If they are accepted by all parties to a dispute, the parties enter into a treaty and that becomes a part of international law.  See e.g. The Effect of Resolutions of the U.N. General Assembly on Customary International Law by Stephen M. Schwebel, deputy legal advisor to the US Department of State in Proceedings of the Annual Meeting (American Society of International Law), Vol. 73(APRIL 26 - 28, 1979), pp. 301-309.  

He said:

"It is trite but no less true that the General Assembly of the United Nations lacks legislative powers.  Its resolutions are not, generally speaking, binding on the States Members of the United Nations or binding in international law at large.  It could hardly be otherwise.  We do not have a world legislature.  If we had one, hopefully it would not be composed as is the General Assembly on the basis of the unrepresentative principle of the sovereign equality of states, states which in turn are represented by governments so many of which are themselves not representative of their peoples.  

As the [United States] Secretary of State recently put it: 

"In considering the decision making process in the United Nations, it is important to bear in mind that while the one-state, one-vote procedure for expressing the sense of the General Assembly is from many points of view unsatisfactory, the incorporation of this principle in the Charter was balanced by giving the Assembly only recommendatory powers."

Schwebel went on to say there were some International Lawyers that tried to fit recurring statements in UN Resolutions into the category of long-standing custom or practice between or among states.

The Mallison legal opinion assumed that the UN Partition Resolution was a part of International Law.  The Resolution divided Palestine west of the Jordan River into three parts.  One part went to the Jews, one part to the Arabs, and one part was to become, at least initially, a “corpus separatum” to be ruled by a Committee of the UN.  That was the Jerusalem area -- containing many religious sites that were holy for all three major religions.  

That the legal opinion was a gross distortion of international law outraged Julius Stone, an Australian world-recognized international lawyer.  In response he wrote a book published in 1981 entitled "Israel Palestine: Assault on the Law of Nations".  In it he showed that the Major UN General Assembly Resolutions were not international law because Resolution 181, the Partition Resolution, although accepted by the Jews was not accepted by the Arabs and therefore it died at birth.  For that reason the Jews were not limited to the territory they were assigned in Resolution 181.  

Also, the Jews were not illegally in the Jerusalem area because the corpus separatum also died at birth along with Resolution 181.  

Mallison’s legal opinion also opined that Arabs residing in Palestine had, under international law, a right to self-determination.  But that right has never been awarded under international law in the case of attempted secession where its application would have empowered the UN to redraw the boundaries of a sovereign state.  It has only been applied to cases of decolonization.  

Mallison ignored that all of Palestine west of the Jordan River was recognized by some 53 states in 1922 as being owned by the Jews when they approved the Palestine Mandate.  Some 52 were members of the League of Nations that approved it as a treaty and the United States, that wasn’t a member of the League, approved it by a Joint Resolution of Congress in 1922 and in a separate treaty, the Anglo-American Convention of 1924.  

The chronology is as follows:

At the Paris Peace Talks in 1919, claims to the European and Middle East territories that the Allies had won in WWI, for them a defensive war, were the subject of claims by European parties and also by the Arab people and the Jewish People.  

The Arabs, through King Hussein, claimed Syria, Iraq and Palestine — the Jews, through the World Zionist Organization, claimed only Palestine, both east and west of the Jordan River.  

The Allies disposed of the claims to European territories at Versailles, but did not resolve the claims to the Middle East territories until they had reconvened at San Remo in 1920.  There they placed the political rights to Syria and Mesopotamia (now Iraq) in trust for the Arab people who were in the majority in those areas for when the Arabs were capable of exercising sovereignty and placed the political rights to Palestine in trust for the Jews in the light of their historic association with Palestine.  

Why in trust?  At the time the Jewish population in all of Palestine was only about 10% of the total, even though the Jews had enjoyed a majority population in the Jerusalem area since 1863 and a plurality since 1845. The British, in their Balfour policy framed in November, 1917, had decided to handle this by placing the political rights in trust, not only until the people in the territory were capable of exercising sovereignty, but also not until the Jews had attained a population majority.

This would be achieved by their hard work to bring back to Palestine Jews from the diaspora to get a population majority. This would avoid an “anti-democratic” government, rule by a minority  — like the later French recognition of the Alawites as sovereign over Syria that has resulted in so much death and destruction.

To award the Jewish People only the equitable ownership of the political rights to Palestine — the rights to self-determination, they would place these political rights in trust, not to vest until the Jews had both a population majority as well as the capability of exercising sovereignty,  and would require the trustee to facilitate Jewish immigration.  

However, between 1920 and 1922, events in Syria and in trans-Jordan, Palestine east of the Jordan River had made it better for Britain to limit the area placed in trust for the Jews to the territory of Palestine west of the Jordan. The Palestine Mandate was drafted to specify in detail the new British Policy in Article 25, a limitation on Jewish settlement east of the Jordan.

In 1947 the British decided to abdicate their responsibilities as trustee of the political rights to Palestine.  

In 1950, the political rights of the Jews matured when the Jews attained a population majority in the area within the Armistice boundary.  Instead of only an equitable interest, now, without formal acclamation, the Jews now had a legal interest in the political rights and the Jewish National Home had matured into a Jewish reconstituted Commowealth as originally conceived in the framing of the Balfour Declaration.  

If those Arab people residing in Palestine west of the Jordan had any right to self-determination, the UN would have to redraw the boundary of the sovereign state of Israel to exclude at least East Jerusalem from the sovereign State of Israel, and also to exclude Judea and Samaria, to which Israel was entitled, but to which Israel had not as yet asserted its rights. This would violate Israel’s territorial integrity as guaranteed by the UN Charter.  My legal opinion to that effect can be found at SSRN.com/abstract=2385304.  The detailed opinion can be downloaded from that URL.

International Law is derived principally from treaties between or among states, but also can be derived from long standing custom between or among states.  In 1984 those pushing Palestinian statehood financed the publication of a scholarly appearing journal entitled "Palestinian Yearbook of International Law",  responding to Professor Stone’s treatise.  In it, in an article entitled “The Juridical Basis of Palestinian Self-Determination”, the Mallisons attempted to resurrect their legal opinion by trying to fit the UN’s Partition Resolution, that had died at birth, into the category of a long-standing custom or practice of many states.  

That is hard to accept, because the Arab states that were a major part of the group that dominated the UN and its Committee on the Exercise of the Inalienable Rights of the Palestinian People, at the time of the Partition Resolution had not accepted the Resolution as international law, but instead had rejected it so violently they had gone to war.

This is how it started, how the Jewish communities in Judea, Samaria, and its 'occupation' of East Jerusalem began to be incorrectly characterized as “illegal under International Law”.

The canard has since been  pushed a lot through PR paid for by Soviet and Arab petrodollars, so now it is generally accepted as a "poetic truth", even by many Israelis on the left.  As a poetic truth it can’t be dented by facts, reason or logic, any more than another widespread poetic truth, "The Perpetual Victimhood of the Palestinian People".