LECTURE DELIVERED BY ATTORNEY HOWARD GRIEF
AT THE MENAHEM BEGIN HERITAGE CENTER, JERUSALEM
OCTOBER 14, 2009
ISRAEL'S LEGAL FOUNDATION, BORDERS AND RIGHTS
TO THE LAND OF ISRAEL UNDER INTERNATIONAL LAW
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I now turn to the recognition of Jewish legal rights to Palestine by the United States, a subject which has important ramifications for today. In 1922, both houses of the U.S. Congress passed a Joint Resolution, known as the Lodge-Fish Resolution, favouring the establishment in Palestine of a national home for the Jewish People, as laid down in the Balfour Declaration. The Joint Congressional Resolution was signed by President Warren G. Harding on September 21, 1922, thus giving it the force of law. Two years later, the United States signed a treaty with Great Britain, called the Anglo-American Convention respecting the Mandate for Palestine, in which the U.S. consented to the British administration of Palestine, pursuant to the Mandate, that was incorporated word for word into the Preamble of the Convention. In agreeing to the administration of Palestine based on the Mandate, the U.S. recognized thereby the national and political rights of the Jewish People to all of Palestine, not to one-third of it, one-fourth of it or one-eighth of it - but most emphatically to the whole of it, as the future independent Jewish State. This American recognition implicitly embraced the city of Jerusalem, which served as the administrative capital of Mandated Palestine where all the principal government departments had their offices, including that of the British High Commissioner for Palestine.(This recognition is an important fact to remember whenever the U.S. Administration protests the construction of new Israeli housing projects in the eastern part of Jerusalem, formerly under illegal Jordanian occupation for nineteen years.) In return, the U.S. was accorded various rights for itself, in regard to commerce, property, education, philanthropy, religion, the judiciary and equality of treatment with other members of the League of Nations, despite the fact that the U.S. never joined the League. This treaty became part of the supreme law of the U.S. under Article VI of its constitution. The U.S. was now in effect a contracting party to the Mandate for Palestine and a guarantor of Jewish rights to Palestine.
It must also be stressed that neither the Joint Congressional Resolution nor the 1924 treaty recognized the national or political rights of any fictitiously-named nation, that never existed in history, the so-called "Palestinians", particular their presumed right to create a new Arab state in Judea, Samaria and Gaza, as former President George W. Bush and current President Barack Hussein Obama have both advocated. The U.S. recognition of the right of Arabs to a state in the land designated as the Jewish National Home is illegal under U.S. law. It is true that the 1924 treaty expired with the expiry of the Mandate on May 15, 1948, but Jewish rights to Palestine under the Mandate never expired and have remained embedded in U.S. public law to this very day. Under the doctrine of estoppel, which applies in all democratic legal systems, the U.S. is estopped from denying or impugning Jewish legal rights to former Mandated Palestine and transferring those rights to Arabs in the Land of Israel. The U.S. can no more do that than Britain can revoke U.S. independence under the 1783 Treaty of Paris or revoke the creation of Canada under the U.K. statute known as the British North America Act of 1867.(This British Act that unified several Canadian provinces into the Dominion of Canada was renamed and superseded by the Canada Act (or Constitutional Act) of 1982 giving Canada the right to amend its own constitution without reference to the U.K. Parliament, thus removing the last vestige of Canadian constitutional dependence on Great Britain.)
It is a rule of international law as well as a legal norm that rights that emanate from a treaty or international agreement and are subsequently implemented to create a new state as in the case of Israel cannot thereafter be revoked by the party which granted those rights or by any party that recognized them in return for due consideration as happened in the case of the 1924 treaty. The matter has already been decided and it becomes a closed chapter. If it were otherwise, international chaos would result and there would be no legal order in the world. The principle that rights survive the expiry of a treaty has been codified in the 1969 Vienna Convention on the Law of Treaties, specifically in Article 70(1)(b).
The U.S. is evidently ignoring the earlier legal recognition it gave to Jewish legal rights to all of Palestine. We in Israel must remind the U.S. that it is still legally bound to honour our rights to the land in its entirety and that it cannot transfer them to other parties. Legally, it is estopped from insisting on a settlement freeze or protesting new Israeli building projects in Jerusalem, as demanded by President Obama. Since diplomacy does not appear to work in this particular matter the only way to enforce Jewish legal rights to the land is to resort to a legal action in a U.S. District Court to require the U.S. Government to honour these rights. In my opinion, there is a sound legal basis for this proposed action, which I first proposed in an article I wrote in 2003 and verbally even earlier. Steps are presently underway to take this action in the months and days ahead. It will be taken in the name of U.S. citizens who live in eastern Jerusalem, Judea and Samaria, whose right to live there has been recognized in U.S. public law, but is now openly challenged by the Obama Administration.
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A few concluding remarks about the UN Partition Plan of November 29, 1947 and the 2003 Road Map Peace Plan for a Permanent Two-State Solution. Neither of these plans has legally abrogated or rescinded Jewish legal rights to all of the Land of Israel, although that was their intended effect in the regions where an Arab state was to be established.
The UN Partition Plan embodied in General Assembly Resolution 181(II) was adopted at a time when the Mandate was still in force. This Plan awarded national and political rights to Arabs of the Land of Israel that were never contemplated in the Mandate. Article 5 of the Mandate prohibited the partitioning of the land and bringing it under the rule of a foreign government. The UN General Assembly Resolution violated Article 5 and was therefore illegal. In addition, the UN Partition Plan also violated Article 80 of the UN Charter itself, which preserved from alteration all Jewish rights to Palestine accorded under the Mandate. Separate and apart from that, Resolution 181 (II) became a dead letter when the neighbouring Arab states, in cooperation with and at the instigation of the local Arab leadership, invaded the fledgling Jewish State of Israel. Once the war erupted, Prime Minister David Ben-Gurion rightly no longer considered Israel bound by the Partition Plan and annexed areas of the Land of Israel beyond the UN-recommended borders, areas that had been re-captured by Jewish military forces, subsequently united as the Israel Defense Forces. This is how cities such as Beersheba, Ashkelon, Ashdod, Nahariya, Nazareth, Acco, Lod and Ramla became part of the State of Israel in 1948. Under the illegal UN Partition Plan they were to be part of an Arab state that never came into being.
Curiously enough, the real reason the United States Government and other countries still refuse to recognize Jerusalem as the capital city of Israel and treat Judea and Samaria as "occupied territories" is because they still base their policy on the invalid UN General Assembly Resolution of November 29, 1947 that never had the force of law.
The U.S., in cooperation with Russia, the European Union and the United Nations, is now seeking to put an end to what it declares is the Israeli occupation of eastern Jerusalem, Judea and Samaria, as set out in the Road Map Peace Plan. I wish to point out that this plan is neither a treaty nor a signed international agreement. Israel accepted this plan conditionally, subject to 14 reservations that are of critical importance, including inter alia an end to Arab terror, violence and incitement against Israel, the dissolution of Hamas, Islamic Jihad and other terrorist organizations, the recognition of Israel's right to exist as a Jewish State, the rejection of any alleged "right of return" for so-called Arab refugees to the State of Israel and the absolute necessity that each step of the plan be fulfilled before moving on to the next one. Since none of the 14 Israeli reservations was accepted either by the Arab side or by the Quartet, with the exception that the U.S. has recognized the fact that Israel is a Jewish State, there was therefore no meeting of minds on essential points, so necessary for the formation of a valid and binding contract or agreement. Israel's previous consent to the plan has thus been rendered null and void or simply meaningless. As a result, the Road Map Peace Plan remains only what it says it is, i.e., a plan to achieve peace that has no legal force and does not entail, as is often said, legal obligations on the part of Israel. The plan was supposed to be implemented by no later than 2005, and that year has passed without the execution of the plan. In sum, this non-binding plan is no longer in force and in no way does it diminish Jewish legal rights to all parts of the Land of Israel, including Jerusalem, Judea and Samaria. Over and above that, the plan which purports to freeze all Israeli settlement activity in the so-called "occupied territories" is a violation of Israeli law, U.S. law and international law and therefore has no validity, nor would it be valid even if there were a signed document. Israeli law does not sanction the cession of any areas of Eretz-Israel to anybody, but assumes that they shall be incorporated into the State of Israel.
To gain a fuller understanding of the depth and strength of Israel's iron-clad legal case to the Land of Israel, I can only suggest that those here tonight read my book on the Legal Foundation and Borders of Israel under International Law, obtainable from Mazo Publishers, Jerusalem, and other outlets.
Attorney Howard Grief is the Founder of the Office for Israeli Constitutional Law and the author of "The Legal Foundation and Borders of Israel under International Law"