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Encyclopedia of the Palestine Problem

CHAPTER THIRTY SEVEN Part 1 of 2

SO-CALLED ISRAEL IS NOT A STATE IN FACT OR IN LAW THE HISTORICAL FACTS

In 1914, the country known now as Palestine was part of the Ottoman Empire, but the indigenous inhabitants were Palestinian Arabs with a Turkish nationality. The territory of Palestine was composed of three administrative areas: the sanjak (district) of Acre, the sanjak of Nablus, and the independent sanjak of Jerusalem. The sanjak of Jerusalem was called independent because it depended directly on Constantinople, the capital of the Ottoman Empire. These three districts were represented in the Turkish Parliament in Constantinople by six members from Jerusalem, Jaffa, Nablus, Acre and Gaza. A Palestinian was the Deputy President of the Ottoman Parliament. Many Palestinians were government officials, judges and diplomats. The indigenous population living in this territory were descendants of all the races which had lived and fought in or conquered Palestine since time immemorial, namely the Canaanites, the Hittites, the Jebusites, the Philistines, the Israelites, the Edomites, the Greeks, the Romans, the Arabs and the Ottomans. The Christian Palestinians, who constitute 20% of the Palestinian people, are descendants of the first Christians who adopted Christianity at the hands of the Apostles. Since the seventh century A.D., Arab language and culture has dominated the country, and this is why the inhabitants call themselves Palestinian Arabs.

When World War I broke out, the Palestinian Arabs were part of the Arab National movement calling for the independence of the Arab-speaking territories from the Ottoman Empire. They joined the Arab forces under the leadership of Sharif Hussein, the grandfather of the present King Hussein of Jordan. Sharif Hussein exchanged several letters with representatives of the British Government who promised to help the Arab countries achieve liberty and independence in consideration for Arab assistance and revolt against Turkey. The many letters exchanged by Sir Henry McMahon, representative of the British Government and Sharif Hussein, repeatedly stated that


Great Britain recognizes the independence of the Arab countries which are bounded: on the north, by the line Mersin- Adana to parallel 37 degrees North and thence along the Iine Birejik-Urfa-Mardin-Midiat-Jazirat(ibn 'Umar)-Amadia to the Persian frontier; on the east, by the Persian frontier down to the Persian Gulf; on the south, by the Indian Ocean (with the exclusion of Aden whose status will remain as at present); on the west, by the Red Sea and the Mediterranean Sea back to Mersin. (1)

While the Arabs were fighting on the side of the allies, in 1916 the British War Cabinet was secretly negotiating with Zionist leaders from Britain and the United States. These Zionist leaders promised to use their influence to bring the United States into the war if the British Government would promise to facilitate the establishment of a Jewish National Home in Palestine. (2)

After protracted negotiations, the British Government issued a letter on the 2nd day of November, 1917, sent by the Secretary of State for Foreign Affairs, A.J. Balfour, to Lord Rothschild, which stated:


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. (3)

British forces with the assistance of Arab forces occupied palestine, Syria and Lebanon. Turkish forces were expelled from the area and the British occupied the territory of Palestine on December 19, 1917. They set up a British Military Administration in the country from 1917 to 1920.

The Paris Peace Conference adopted the Covenant of the League of Nations on June 28, 1919. Article XXII of the said Covenant established a Mandatory system for many countries with Class A, Class B and Class C Mandates. Palestine, Syria, Lebanon and Iraq of the Arab countries were placed in the category of Mandate A. Paragraph 4 of Article XXII of the League of Nations Covenant states:


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. (4)

The Northern Boundary of Palestine was determined by the Franco-British Convention of December 23, 1920 (5) and the frontier with Transjordan was defined by an Order of the High Commissioner for Palestine on September 1, 1922. (6)

While the Mandate for Palestine was being drafted, the Zionists pressured the British Government and the Allied Powers to inject the Balfour Declaration in the Palestine Mandate. Article 2 of the Palestine Mandate states:


The Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of a 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. (7)

The inclusion of the Balfour Declaration in the Mandate aroused the indignation of many members of the House of Lords in Britain. Lord Islington submitted a motion condemning the Draft of the Palestine Mandate, including the Balfour Declaration, stating that


the Mandate for Palestine in its present form is unacceptable to this house, because it directly violates the pledges made by His Majesty's Government to the people of Palestine in the Declarations of 1915 and 1918, and is, as at present framed, opposed to the sentiments and wishes of the great majority of the people of Palestine; that therefore its acceptance by the Council of the League of Nations should he postponed until such modifications have therein been effected as will comply with pledges given by His Majesty's Government.

After a long debate in which British policy towards the Arabs as a whole, and in regard to Palestine in particular, was vigorously criticized by many important members of the House of Lords of both parties, Lord Balfour took the floor to defend his policy. In spite of Balfour's eloquence, the motion of Lord Islington was carried by 60 votes against 29. (8)

When the Balfour Declaration was injected in the Palestine Mandate demonstrations took place in Palestine. Leaders of the Palestinian Arabs protested to the British Colonial Office and to the League of Nations because the Zionists were claiming that Palestine would become a Jewish state.

In 1922 Winston Churchill was the Secretary of State for the Colonies. He issued a White Paper on June 20, 1922 in which he stated, inter alia, the following:


Unauthorized statements have been made to the effect that the purpose in view is to create a wholly Jewish Palestine. Phrases have been used such as that Palestine is to become "as Jewish as England is English." His Majesty's Government regard any such expectations as impracticable and have no such aim in view. Nor have they at any time contemplated, as appears to be feared by the Arab delegation, the disappearance or the subordination of the Arabic population, language or culture in Palestine. They would draw attention to the fact that the terms of the Declaration referred to do 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.

... When it is asked what is meant by the development of the Jewish National Home in Palestine, it may be answered that it is not the imposition of a Jewish nationality upon the inhabitants of Palestine as a whole, but the further development of the existing Jewish Community.

Mr. Churchill continued by stating:


This, then, is the interpretation which His Majesty's Government place upon the Declaration of 1917, and, so understood, the Secretary of State is of the opinion that it does not contain or imply anything which need cause either alarm to the Arab population of Palestine or disappointment to the Jews. (9)

THE POPULATION OF PALESTINE IN 1919

When Palestine was placed under a Class A Mandate in 1919, its population was composed as follows: 568,000 Muslim and Christian Arabs who were the indigenous population of Palestine and 58,000 Jews who had immigrated from Europe, mainly from Russia. (10) During the middle of the Nineteenth Century, only 12,000 Jews migrated to Palestine and they were the only Jews in the country. However, Jews continued to migrate, and by 1882, the number of Jews in Palestine was 24,000. (11)

From 1919 to 1939, many Arab uprisings took place to protest the deprival of the people of Palestine of their independence as a state in the same way that all mandated territories, whether of Class A, B or C were granted independence. The British Government sent a Royal Commission in 1937 to investigate the causes of disturbance in Palestine, and thereafter, in 1938, it sent the Woodhead Commission, which proposed to partition Palestine between the indigenous population and the Jewish immigrants. On the 9th day of November, 1938, the British Government issued a statement in which it rejected the recommendation of the Woodhead Commission. It stated, inter alia, the following:


A statement of policy by His Majesty's Government was issued simultaneously with the Partition Commission's report. This announced the conclusion of His Majesty's Government that the examination by the Commission has "shown that the political, administrative and financial difficulties involved in the proposal to create independent Arab and Jewish states inside Palestine are so great that this solution of the problem is impracticable." (12)

The British Government held a London Conference in 1939 in which representatives of the British Government met with the representatives of the Palestinian people and representatives of the Arab states. They also met with representatives of the Jewish Agency for Palestine. At the end of the conference, the British Government issued the White Paper of May 17, 1939, which stated, inter alia:


1. The Proposal of partition recommended by the Royal Commission, namely the establishment of self-supporting independent Arab and Jewish states within Palestine, has been found to be impracticable.

2. His Majesty's Government now declares unequivocally that it is not part of their policy that Palestine should become a Jewish state. They would indeed regard it as contrary to their obligations to the Arabs under the Mandate, as well as to the assurances which have been given to the Arab people in the past, that the Arab population of Palestine should be made the subjects of a Jewish state against their will.

3. The object of His Majesty's Government is the establishment within ten years of an independent Palestine Slate. The independent State should be one in which Arabs and Jews share in government in such a way as to ensure that the essential interests of each community are safeguarded. The establishment of the independent State will be preceded by a transitional period throughout which His Majesty's Government will retain responsibility for the government of the country. (13)

The Zionists rejected the British White Paper, and revolted against the British administration of Palestine. From 1939 to 1948 the three Zionist terrorist gangs (the Haganah, the Irgun and the Stem) carried out the most dastardly crimes and massacres against the civilian Arab population, as well as against the British authorities in Palestine. Practically every political and military leader in so-called Israel today was a member of one of these gangs. Menahem Begin and Yitzhak Ysemitzky (now known as Yitzhak Shamirj were leaders of the worst of the gangs, namely, the Irgun and the Stem Gang respectively, which committed thousands of terrorist crimes and massacres, including the blowing up of the King David Hotel on July 22, 1946, when 91 persons were killed and 45 were seriously injured.

In 1947 the British government submitted the Palestine problem to the United Nations General Assembly, requesting that the General Assembly take steps to determine the future government of Palestine. The General Assembly formed a Special Committee to investigate all questions and issues relevant to the problem of Palestine, and to prepare proposals for the solution of the problem. The Special Committee submitted a majority plan for the partition of Palestine into an Arab state, a Jewish state, and a corpus separatum under a special international regime for the City of Jerusalem, and a minority plan recommending the establishment of a federal state with Jewish and Arab autonomy in specified districts.

Under Zionist pressure, the United States and some Western European countries joined the Soviet bloc nations to press for the adoption of the partition plan. The Partition Resolution was adopted by 33 votes in favor, 13 opposed and 10 abstentions.

In 1947, there were in Palestine 1,350,000 Muslim and Christian Palestinians who were the indigenous population. There were also 650.000 Jews out of whom 253,700 were born in Palestine and the other 396,000 Jews were mostly alien immigrants. (14)

The area of Palestine of 10,000 square miles was to be divided into a Jewish state with an area of 5,579 sq. miles, and an Arab state, with an area of 4,421 sq. miles.

The number of Palestinian Arabs included in the area for the Jewish state was 509,780 Muslims and Christians, and there were in that area 499,020 Jews. In other words, the Arabs were a majority in the projected Jewish state. (15)

According to statistics furnished by the representative of the Mandatory Power to the Subcommittee 2 of the Ad Hoc Committee on the Palestinian question, the population of Palestine and land ownership in Palestine in 1947 was as follows: (16)

 

Sub-District

Percentage of Total Population

Percentage of  Land Ownership

 

%

%

%

%

 

Arabs

Jews

Arabs

Jews

 

 

 

 

 

Safad

87

13

68

18

Acre

96

4

87

3

Tiberias

67

33

51

38

Beisan

70

30

44

34

Nazareth

84

16

52

28

Haifa

53

47

42

35

Jenin

100

84

less than 1

Nablus

100

76

less than 1

Tulkarm

83

17

78

17

Ramallah

100

99

less than 1

Jerusalem

62

38

84

2

Hebron

99

less than 1

96

less than 1

Jaffa

29

71

47

39

Ramie

78

22

77

14

Gaza

98

2

75

4

Beersheba

99

less than 1

14

less than 1

According to the statistics of the Government of Palestine and a statement by David Ben Gurion before the Anglo- American Commission in 1946, the total ownership by Jews of land in Palestine was 6.7% of the total area of the country.

During the war that erupted between the Zionists and Arabs in 1947 and 1948, Zionist Armed Forces, aided and abetted by the forces of the Mandatory power, were able to occupy 80% of the territory of Palestine. They occupied 2,421 so. miles more than had been allotted to the Jewish state by the partition plan.

The Haganah, the terrorist arm of the Jewish Agency, coordinated its operations with the terrorist acts and massacres committed by the Irgun and Stem gangs against Arab civilians in towns and villages. Members of these three terrorist organizations were responsible in 1948-49 for the following war crimes:

They expelled from the area they occupied over 800,000 Arabs (700,000 Muslims and 100,000 Christians). They completely destroyed 492 small towns and villages by demolishing all houses and other buildings. They completely destroyed 480 Muslim Mosques and 6 Christian churches. They destroyed 410 Muslim cemeteries and 30 Christian cemeteries by bull-dozing all gravestones and remains. Only 156,000 Muslim and Christian Palestinians remained in the so-called Jewish state. (17) Practically all the political and military leaders of so-called Israel from 1948 until today were members of these three terrorist organizations and are guilty of war crimes, crimes against humanity and genocide.

 

A UNITED NATIONS SPECIAL SESSION TO CONSIDER FURTHER THE FUTURE GOVERNMENT OF PALESTINE

When the implementation of the Partition Plan appeared to be impossible without the use of force, and after consult908 ations between the permanent members of the United Nations Security Council, on the 1st day of April, 1948, in its 277th Meeting, the Security Council adopted a Resolution in which it requested the Secretary General, in accordance with Article 20 of the United Nations Charter, to convoke a special session of the General Assembly "to consider further the question of the future government of Palestine." On April 17, 1948, the Security Council in its 283rd meeting adopted a Resolution requesting an end to all military activities leading to increased tension and called upon all persons and organizations in Palestine, and especially upon the Arab Higher Committee and the Jewish Agency, to take immediately, without prejudice to their rights, claims, or positions, and as a contribution to the well-being and permanent interests of Palestine, the following measures:


(d) Refrain pending further consideration of the future government of Palestine by the General Assembly, from any political activity which might prejudice the rights, claims, or positions of either community.

The Second Special Session of the United Nations General Assembly convened at Lake Success on April 16, 1948, to consider further "the future government of Palestine." The United States Delegation submitted a "working paper on Trusteeship for Palestine." In introducing the plan for Trusteeship, Senator Austin, Chief of the United States Delegation, stated:


The U.S.A. believed that the General Assembly should consider the establishment of a temporary trusteeship which would provide a government and essential public services in Palestine pending further negotiations. The Trusteeship proposal was intended to ensure order and government and thereby make possible the working out of a peaceful settlement and constructive development in Palestine.

 

THE DECLARATION OF SO-CALLED ISRAEL

The United Nations General Assembly met in a special session in May, 1948, "to consider further the question of the future government of Palestine." The United States delegation submitted a resolution for placing Palestine under United Nations trusteeship pending a just solution to the Palestine problem. While the General Assembly was discussing the trusteeship proposal, Zionist leaders, on May 14, 1948, illegally proclaimed their so-called independence and established the Provisional Government of the so-called State of Israel.

The so-called "Declaration of Independence" made in Tel Aviv on May 14, 1948, relied on the Resolution of the General Assembly of November 29, 1947. It stated: "On November 29, 1947, the General Assembly of the United Nations adopted a Resolution requiring the establishment of a Jewish State in Palestine." It stated, further: "The State of Israel will be ready to cooperate with the organs and representatives of the United Nations in the implementation of the resolution of the Assembly of November 29,1947." The Declaration stated further, "The State of Israel will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex; it will guarantee freedom of religion, conscience, language, education and culture; it will safeguard the Holy Places of all religions; and it will be faithful to the principles of the charter of the United Nations."

When the representative of the Provisional Government of Israel requested the recognition of the United States, he stated: "The State of Israel has been proclaimed as an independent republic within the frontiers approved by the General Assembly of the United Nations in its resolution of November 29, 1947."

The 37 persons who met in Tel Aviv and issued the so-called Declaration of Independence claimed to represent the Jewish community and the Zionist movement. Many of them were members of the Jewish Agency which had branches in Jerusalem, London and New York. The following is a list of these Zionist representatives, stating their names, countries of birth, dates of birth, when they came to Palestine and their ethnic origin.

 

FOUNDING PARENTS OF THE ILLEGITIMATE STATE OF ISRAEL

Signer of Declaration of Independence

Where and When Born

Came to Palestine

Ethnic Origin

 

 

 

 

1. Daniel Auster

Austria. 1893

1913

Ashkenazi

2. Mordekhai Bentov

Poland, 1900

1920

Ashkenazi

3. Yitzchak Ben Zvi

Russia, 1884

1907

Ashkenazi

4. Eliyahu Berligne

Russia, 1866

1907

Ashkenazi

5. Peretz Bernstein

Germany, 1890

1935

Ashkenazi

6. Rabbi Wolf Gold

Poland, 1889

1924

Ashkenazi

7. Meir Grabovsky

Russia, 1905

1926

Ashkenazi

8. Yitzchak Gruenbaum

Poland, 1879

1933

Ashkenazi

9. Dr. Abraham Granovsky

Rumania, 1890

1919

Ashkenazi

10. Eliyahu Dobkin

Russia, 1898

1938

Ashkenazi

11. Meir Wilner- Kovner

Poland. 19 18

1947

Ashkenazi

12. Zerach Wahrhaftig

Poland, 1906

1947

Ashkenazi

13. Herzl Vardi

Lithuania, 1903

1935

Sephardi

14. Rachel Cohen

Russia, 1888

1919

Ashkenazi

15. Rabbi Kalman Kahana

Poland, 1910

1938

Ashkenazi

16. Saadia Kobashi

Yemen, 1902

1909

Ashkenazi

17. Rabbi Itzch Meir Levin

Poland, 1894

1940

Ashkenazi

18. Meir David Loevenstein

Denmark, 1905

1934

Ashkenazi

19. Zvi Lurie

Latvia, 1908

1935

Ashkenazi

20. Golda Myerson

Russia, 1898

1921

Ashkenazi

21. Nachum Nir

Poland, 1884

1925

Ashkenazi

22. Zvi Segal

Poland, 1908

1935

Ashkenazi

23. Rabbi Yehuda Leib Hacohen Fishman

Rumania, 1875

1913

Ashkenazi

24. David Zvi Pinkas

Hungary, 1895

1925

Ashkenazi

25. Aharon Zisling

Russia, 1901

1914

Ashkenazi

26. Moshe Kolodny

Russia, 1911

1932

Ashkenazi

27. Eliezer Kaplan

Russia, 1891

1923

Ashkenazi

28. Abraham Katznelson

Russia, 1888

1 924

Ashkenazi

29. Pinchas Felix Rosenbluth

Germany, 1887

193 1

Ashkenazi

30, David Remez

Russia, 1886

19 13

Ashkenazi

31. Berl Repetur

Russia, 1901

192 1

Ashkenazi

32. Mordekhai Shattner

Poland, 1904

1925

Ashkenazi

33. Ben Zion Sternberg

Rumania, 1894

1940

Ashkenazi

34. Bekhor Shitreet

Palestine, 1895

BORN

Sephardi

35. Moshe Shapiro

Poland, 1897

1925

Ashkenazi

36. Moshe Shertok

Russia, 1894

1906

Ashkenazi

37. David Ben-Gurion

Poland, 1886

1906

Ashkenazi

 

Reviewing the above list, it can be seen that only one person was born in Palestine. Thirteen were born in Russia, twelve born in Poland, three born in Rumania, two born in Germany, one born in Latvia, one born in Lithuania, one born in Austria, one born in Hungary, one born in Denmark and one born in Yemen. Two were Semitic Sephardi Jews and 35 were non-Semitic Ashkenazi Jews of Khazar origin.

Further examination of the above list shows that two came to Palestine in 1906, two in 1907, one in 1909, three in 1913, one in 1914, two in 1919, one in 1920, two in 1921, one in 1923, two in 1924, four in 1925, one in 1926, one in 1930, one in 1931, one in 1932, two in 1933, two in 1934, two in 1935, two in 1938, two in 1940 and one in 1947.

According to the Statistical Abstract of Israel, the total population of Israel in 1948 was 872,000, of whom 716,700 were Jews. It lists the origins of these Jews as follows:

Total Palestine born:
253,700
Total born abroad:
463,000
Total born in Asia:
57,800
Total born in Africa:
12,200
Total born in Europe and America:
393,000 (18)

The so-called provisional government of Israel which was formed in 1948 consisted of the following:

1. David Ben Gurion who came to Palestine in 1906; 2. Moshe Sharett who came to Palestine in 1906; 3. Eliezer Kaplan who came to Palestine in 1923; 4. David Remez who came to Palestine in 1913; 5. Golda Myerson who came to Palestine in 1921; 6. Zalman Shazar who came to Palestine in 1924; 7. Dr. Dov Joseph who came to Palestine in 1921; 8. Dr. P. F. Rosenbluth who came to Palestine in 1931 ; 9. Rabbi J. L. Fishman who came to Palestine in 19 13; 10. Rabbi I. M. Levin who came to Palestine in 1940; 11. Moshe Shapiro who came to Palestine in 1925; and, 12. Bechor Shitreet, who was born in Palestine.

REQUISITES OF A STATE IN INTERNATIONAL LAW

A State is a person in international law and can only be considered a state where the material conditions of statehood are fulfilled by that juristic person. Oppenheim's international law by Lauterpacht defines a State as follows:


A State proper - in contradistinction to colonies - is in existence when the people is settled in acountry under its own sovereign Government. The conditions which must obtain for the existence of a State are therefore four:

There must, first, be a people. A people is an aggregate of individuals of both sexes who live together as a community in spite of the fact that they may belong to different races or creeds, or be of different colour.

There must, secondly, be a country in which the people has settled down. A wandering people is not a State. But it matters not whether the country is small or large; it may consist, as in the case of city States, of one town only.

There must, thirdly, be a Government - that is, one or more persons who are the representatives of the people and rule according to the law of the land. An anarchistic community is not a State.

There must, fourthly and lastly, be a sovereign Government. Sovereignty is supreme authority, an authority which is independent of any other earthly authority. Sovereignty in the strict and narrowest sense of the term implies, therefore, independence all round. within and without the borders of the country. (19)

Professor John Bassett Moore, in his book International Law Digest, Volume I , pages 14-15, states:


For all purposes of international law, a state may be defined to be a people permanently occupying a fixed territory, bound together by common laws, habits, and customs into one body politic, exercising. through the medium of an organized government, independent sovereignty and control over all persons and things within its boundaries capable of making war and peace, and entering into all international relations with other communities in the globe.

Alf Ross, Professor of International Law in the University of Copenhagen, defines a State as follows:


By a state we here mean a stabilized, self-governing legal community on a territorial basis. What a"self-governing legal community" means has already been explained (S 1.III). That it has a territorial basis signifies that the community is individualized and thus is distinct from others owing to the fact that its organs for the enforcement of the law function regularly within a particular territory. That it has been stabilized means that it has gained lasting firmness, internally as well as externally. (20)

Professor Hyde in his book International Law defines the requisites of a State in international law.


A State or person of international law should according to existing practice, possess the following qualifications:

First, there must be a people. According to Rivier, it must be sufficient in numbers to maintain and perpetuate itself. This requirement could not, he declares, be met by a casual gathering of individuals or by a chance group of bandits or by a society of pirates.

Secondly, there must be a fixed territory which the inhabitants occupy. Nomadic tribes or peoples are thus excluded from consideration.

Thirdly, there must be an organized government exercising control over, and endeavouring to maintain justice within, the territory.

Fourthly, there must becapacity toenter into relations with the outside world. The management of foreign affairs may, however, be lodged in any appropriate quarter, and even confided to a State that is other than, and foreign to, the country that professes to be one. Independence is not essential. In a word, the existence of statehood is not dependent upon the possession by a country of a right to maintain contacts with others through agencies of its own choice, or within its own control, or exercising their functions from a place within its own territory. The requisite personality, in an international sense, is seen when the entity claiming to be a State has in fact its own distinctive association with the members of the international society, as by treaties, which, howsoever concluded in its behalf, mark the existence of definite relations between itself and contracting parties. It is the possession and enjoyment of this capacity, with or without restriction, and regardless of the instrumentality through which it is utilized, which distinguishes the State of intemational law from the large number of political entities also given that name, and yet which do not appear to be endowed with it. It differentiates Guatemala from Alaska and Spain from South Carolina.

Fifthly, the inhabitants of the territory must have attained a degree of civilization such as to enable them to observe with respect to the outside world those principles of law which are deemed to govern members of the international society in their relations with each other. (21)

 

THE PEOPLE OF THE STATE

Professor Ross states:


The territory and population of the State are the natural elements of the State. The exposition of the rules concerning the territory and population must, therefore, be regarded as preliminary in relation to the complete rules concerning the mutual delimitation of the spheres of dominion of the states. The population of a state may he defined as the group of persons which under international law (in preliminary rules) is regarded as helonging to the slate concerned as its population. Its legal significance appears from the various complete international legal rules in which the word population or its synonyms occur. These are in the first place the rules relating to the delimitation of the spheres of dominion of the states. (22)

Professor Ross develops further the rules regarding the population of a State:


As previously stated, the population or the citizens of a state may be defined as the body of persons which is regarded by international law (in preliminary rules)
as belonging to that state as its population. The significance of the concept lies in the fact that it is decisive of certain restrictions on the territorial competence of other states. The legal claims resulting therefrom cannot, according to current international law, be asserted directly by the private individuals concerned but only by the state whose citizens they are. The concept therefore will also determine the competence of the home state to maintain the protected interests of the persons concerned against other states.

Now, what body of persons is regarded by international law as citizens of a particular state? No direct reply to this question can be found in international law. International law leaves it to each separate state todecide through its owns laws who are citizens. (23)

Professor Ross states further:


Summing up, it would seem then that the following rules may be laid down. Within certain limits international law leaves it to each state itself to decide by its legislation what persons are its citizens. It never conflicts with international law to omit to confer citizenship on certain persons or to deprive them of citizenship. The condition essential to a certain person being regarded by the state as a citizen is that this person is either originally connected with the territory and/or population of this state by birth (original territorial or personal principle); or, that he subsequently obtains such connection by settlement or through a family relationship (subsequent territorial and personal principle). (24)

 

STATE TERRITORY

Oppenheim's International Law states:


State territory is that defined portion of the surface of the globe which is subjected to the sovereignty of the State. A State without a territory is not possible. State territory is also named territorial property of a State. (25)

He further states:


The importance of State territory lies in the fact that it is the space within which the State exercises its supreme authority. State territory is an object of the Law of Nations, because the latter recognises the supreme authority of every State within its territory. (26)

Oppenheim states further:


Whenever a multitude of individuals, living on, or entering into. a part of the surface of the globe which does not belong to the territory of any existing State, constitute themselves into a State and nation on that part of the globe, a new State comes into existence. (27)

Professor Ross defines the territory of a State as follows:


The territory of a state can then be defined as the area which under international law (in preliminary rules) is attributed to the state concerned as its territory. Its legal significance appears from the various complete international rules in which the word territory or its synonyms occur. These are primarily the rules concerning the delimitation of the spheres of dominion of the states. (28)

 

THE RECOGNITION OF A STATE

The question of the existence of a state, its legitimacy, whether it fulfills the requisites of a state, and whether it fulfills the essential conditions of statehood are widely discussed by international jurists. A State is a juristic person like a corporation. A corporation can only exist if it fulfills the requirement of the municipal laws of the state in which it exists. If it lacks any of the conditions required by the law, it is not a corporation. Similarly, a state will not be considered a state if it lacks the requisites of a state, namely, to have a population habitually settled in a territory. The acquisition of that territory must be legitimate, otherwise the state cannot be recognized.

Professor T.C. Chen sums up this principle as follows:


The truth is there can be no "physical existence" of a state independently of its "legal existence." A state as such exists only as a legal concept. All legal personalities including individuals and corporations, are the creation of the law.

A legal person exists in the eyes of the law, only so far as he conforms to the requirement of the law ... Likewise, a body of men not fulfilling the requirements of statehood is not a "state" in the true sense of the word. It may exist as a group, a family, or a race, but never a state.. . If a state exists at all, it must possess legal existence, which existence gives rise ipso facto to rights and obligations. (29)

H. Lauterpacht, professor of International Law in the University of Cambridge, deals extensively with the principles of recognition in his book Recognition in International Law. He states:


To recognize a political community as a State is to declare that it fulfills the conditions of statehood as required by international law. If these conditions are present, the existing States are under the duty to grant recognition.

The practice of the majority of States, in particular of Great Britain and the United States, has been to take into account the unconstitutional character of and the violence accompanying the change of government to the extent of requiring that, as a condition of recognition, the authority of the new rulers shall be confirmed by the people. (30)

Professor Lauterpacht further declares: "The will of the people sanctioning the new scheme of things must be substantially declared in an orderly way and in accordance with the provisions of the constitution." (31)

Professor Lauterpacht deals extensively with the Doctrine of Non-Recognition and states:


International law acknowledges as a source of rights and obligations such facts and situations as are not the result of acts which it prohibits and stigmatizes as unlawful .... It follows from the same principle that facts, however undisputed, which are the result of conduct violative of international law cannot claim the same right to be incorporated automatically as part of the law of nations .... The States may obligate themselves in a mutually binding instrument not to validate as part of international law the consequences of an unlawful act . (32)

Professor Lauterpacht agrees with other international jurists about the significance of the Doctrine of Non-Recognition. He states:


This construction of non-recognition is based on the view that acts contrary to international law are invalid and cannot become a source of legal rights for the wrongdoer. That view applies to international law one of "the general principles of law recognized by civilised nations." The principle ex injuria jus non oritur is one of the fundamental maxims of jurisprudence. An illegality cannot, as a rule, become a source of legal right to the wrongdoer. (33)

The theory of not recognizing the results of illegal acts or aggression has been developed by the American states since 1890. The International Conference of American States in that year adopted a resolution that "Conquest shall not be recognized as admissible under American public law." (34)

When in the autumn of 1931 Japan invaded the Chinese province of Manchuria, the United States Secretary of State, Henry Stimson. informed both Japan and China that the United States "cannot admit the legality of any situation de facto nor does it intend to recognize any treaty or agreement entered into between those Governments or agents thereof which may impair the treaty rights of the United States ... and that it does not intend to recognize any situation, treaty or agreement which may be brought about by means contrary to the covenants and obligations of the Treaty of Paris of August 27, 1928." (35)

The Assembly of the League of Nations supported the position of the United States and adopted a resolution on March 11, 1932, in which it declared, "it is incumbent upon the members of the League of Nations not to recognize any situation, treaty or agreement which may be brought about by means contrary to the Covenant of the League of Nations or the Pact of Paris." (36)

The International Law Association in its meeting in Budapest in September, 1934, as a result of its discussion of the legal consequences of the effect of a breach of the Pact of Paris stated, inter alia, "the signatory states are not entitled to recognize as acquired de jure any territorial or other advantages acquired de facto by means of violation of the pact." (37)

The American states upheld this principle in all their conferences from 1932 until today. The following is a summary of their declarations:


1. The American nations further declare that they will not recognize any territorial arrangement of this controversy which has not been obtained by peaceful means nor the validity of territorial acquisitions which may be obtained through occupation or conquest by force of arms. (38)

2. To the end of condemning wars of aggression and territorial acquisitions that may be obtained by armed conquest, making them impossible and establishing their invalidity through the positive provisions of this treaty and in order to replace them with pacific solutions based on lofty concepts of justice and equity, provides: "Article 2. They declare that as between the high contracting parties territorial questions must not be settled by violence, and that they will not recognize any territorial arrangement which is not obtained by pacific means, nor the validity of the occupation or acquisition of territories that may be brought about by force of arms." (39)

3. The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure. The territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily. (40)

4. Proscription of territorial conquest and that, in consequence, no acquisition made through violence shall be recognized? (41)

5. The Conference of American States reiterates, as a fundamental principle of the Public Law of America, that the occupation or acquisition of territory or any other modification or territorial or boundary arrangement obtained through conquest by force or by non-pacific means shall not be valid or have legal effect. The pledge of non-recognition of situations arising from the foregoing conditions is an obligation which cannot be avoided either unilaterally or collectively. (42)

6. The American Republics consider that force cannot constitute the basis of rights, and they condemn all violence whether under the form of conquest, of stipulations which may have been imposed by the belligerents in the clauses of treaty, or by any other process ... That by virtue of principle of American international law, recognized by various conferences, the acquisition of territories by force cannot be permitted. (43)

7. The proscription of territorial conquest and the nonrecognition of all acquisitions made by force. (44)

8. The American States do not recognize the validity of territorial conquest (45)

9. By the charter of the organization of American States signed at Bogata on April 30, 1948, the American States reaffirmed the following principles: "The American States condemn wars of aggression, victory does not give rights," Article 17 of the charter provides: "No territorial acquisition or special advantage obtained either by force or by other means of coercion shall be recognized."

Since 1927 the Permanent Court of International Justice has given several opinions that illegal acts constitute a violation of international law and, therefore, they are invalid. An example is a dispute between Norway and Denmark regarding the South-Eastern territory of Greenland. The Court held "that the Norwegian declaration of occupation and other measures taken by Norway in that connection constituted a violation of the existing legal situation and were accordingly 'illegales et non valables' (unlawful and invalid)." (46)

 

RECOGNITION DEPENDS ON THE TREATMENT OF MINORITIES

Professor Lauterpacht refers to the Minorities Treaties concluded in 1919 and states:


The Preamble linked the question of recognition with that of the acceptance of the provisions concerning the treatment of minorities. In replying to the Polish objections to the proposed minorities treaty M. Clemenceau said: "This Treaty does not constitute any fresh departure. It has for long been the established procedure of the public law of Europe that when a State is created, or even when large accessions of territory are made to an established State, the joint and formal recognition of the Great Powers should be accompanied by the requirement that such States should, in the form of a binding international Convention, undertake to comply with certain principles of Government" (as quoted in Macartney, National States and National Minonties(l934), p. 238). It would not be accurate to regard that requirement as a "condition" of recognition. A time may arrive when the proper treatment of minorities and of the individual in general will be regardedas an essential function of statehood as conceived by international law with the result that conditions of the kind adopted in the Berlin Treaty of 1878 will be in the same category as continued independence or effectiveness of governmental power. See the Report of the Mandates Commission to the Council of the League of Nations of 27 June, 1931, in which the provision of guarantees concerning the treatment of minorities is suggested as one of the conditions of emancipation of a community from the status of a mandate to that of an independent State (Minutes, vol. XX, pp. 228-9). And see Ritsher, Criteria of Capacity for Independence (1934). (47)

The preamble of the United Nations Charter reaffirms faith in Fundamental Human Rights, in the dignity and the worth of the human person, in the equal rights of men and women, of nations large and small. The Declaration of Human Rights guarantees against violation of the rights of the individual. The state cannot expel any of its citizens. A citizen of a state cannot expel another citizen. Aliens residing in a state cannot expel the citizens of that state. Since international law protects the minorities in a state, it is only fair and just that international law guarantees the rights and freedoms for the majority in a state against the minority. An ethnic minority cannot violate the right of the majority or expel that majority from the state.

It follows, therefore, from these principles, that if a minority in a certain territory were to expel by force and massacre the majority in that territory and declare itself a new state by excluding the majority or most members of the majority from the country, these acts would constitute not only a violation of international law, but would constitute war crimes. The minority cannot be considered a state because the expelling of the majority is an act of aggression and a war crime and, therefore, the minority cannot enjoy the fruits of its war crimes and cannot be recognized as a state in international law.

THE POSITION OF PALESTINE AND THE RIGHTS OF ITS INHABITANTS UNDER THE MANDATE

In an address to a Joint Session of the United States Congress on January 8, 191 8, President Wilson proposed ''Fourteen Points" for a program of world peace. The Fifth and Twelfth Points pertained specifically to the territories which were placed under the Mandates System. His Point XII specifically mentioned the territories which were part of the Ottoman Empire, amongst which were Palestine. He stated:


XII. The Turkish portions of the present Ottoman Empire should be assured a secure sovereignty, but the other nationalities which are now under Turkish rule should be assured an undoubted security of life and an absolutely unmolested opportunity of autonomous development, and the Dardanelles should be permanently opened as a free passage to the ships and commerce of all nations under international guarantees. (48)

In a speech to the United States Congress on February 11, 1918. President Wilson stated:


Peoples and provinces are not to be bartered about from sovereignty to sovereignty as if they were mere chattels and pawns in a game, even the great game, now forever discredited, of the balance of power, but that every territorial settlement involved in this war must be made in the interest and for the benefit of the populations concerned, and not as a part of any mere adjustment or compromise of claims amongst rival states. National aspirations must be respected: people may now be dominated and governed only by their consent. Self-determination is not a mere phrase. It is an imperative principle of action, which statesmen will henceforth ignore at their peril. (49)

The British Prime Minister Lloyd George in his address before the Trade Union Conference in London, January 5, 1918, supported the right of self-determination of peoples. He stated:

Arabia, Armenia, Mesopotamia, Syria and Palestine are, in our judgment, entitled to a recognition of their separate national conditions, and, with regard to the German colonies, the principle of national self-determination is, therefore, as applicable in their cases as in those of the occupied European territories. (50)

Again on July 4, 1918, President Wilson formulated another important principle as one of the four great "ends for which the associated peoples of the world were fighting" and which must be conceded before there can be peace:


The settlement of every question, whether of territory, of sovereignty, of economic arrangement, or of political relationship, upon the basis of the free acceptance of that settlement by the people immediately concerned, and not upon the basis of the material interest or advantage of any other nation or people which may desire adifferent settlement for the sake of its own exterior influence or mastery. (51)

At the Paris Peace Conference of 1919 which formulated the Covenant of the League of Nations, President Wilson tried to explain his ideas and concept of the Mandates System. He stated:


..in order that the field of discussion should be defined as clearly as possible perhaps it would be better to begin with a clear statement of what was the mind of those who proposed a trusteeship by the League of Nations through the appointment of mandatories. The basis of this idea was the feeling which had sprung up all over the world against further annexation. Yet, if the Colonies were not to be returned to Germany (as all were agreed), some other basis must be found to develop them and to take care of the inhabitants of these backward territories. It was with this object that the idea of administration through mandatories acting on behalf of the League of Nations arose...

This he assumed to be the principle: it was not intended to exploit any people; it was not intended to exercise arbitrary sovereignty over any people ... The fundamental idea would be that the world was acting as trustee through a mandatory, and would be in charge of the whole administration until the day when the true wishes of the inhabitants could be ascertained ... (52)

The Mandate System was adopted by Article XXII of the Covenant of the League of Nations. Paragraph 4 of that article referred to the countries relinquished by Turkey:


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. (53)

The final League of Nations study on the Mandates System explains the characteristics of this regime as follows:

The aim of the institution is to ensure the well-being and development of the peoples inhabiting the territories in question ... The acceptance by a nation of this mission carries with it certain obligations and responsibilities established by law. Like guardians in civil law, they must exercise their authority in the interests of their wards - that is to say, of the peoples which arc regarded as minors - and must maintain an entirely disinterested attitude in their dealings with them. The territories with the administration of which they are entrusted must not be exploited by them for their own profit.

Again, the phrase "peoples not yet able to stand by themselves" is used. It follows from this and from the very conception of tutelage that this mission is not, in principle, intended to be prolonged indefinitely, but only until the peoples under tutelage are capable of managing their own affairs. (54)

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Encyclopedia of the Palestine Problem
By Issa Nakhleh

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