February 6, 2017 - Why UN Security Council Resolution 2334 Is Illegal
by Marjorie Stamm Rosenfeld
UN Security Council Resolution 2334 (http://www.un.org/webcast/pdfs/SRES2334-2016.pdf) -- which termed not only the settlements as illegally occupied by Israel, but also the Temple Mount, the Western Wall, the 3,000-year-old Mount of Olives Jewish Cemetery, and the Church of the Holy Sepulchre — is itself an illegal resolution. Here are four reasons why:
First, there's a principle in international law called estoppel. What it means is that a party can’t take a particular position in a legal proceeding and then later take an opposite position. Great Britain, France and the U.S. all should have been estopped from letting Resolution 2334 pass. Britain and France gave national rights in Western Palestine to the Jews (and only the Jews) via the 1922 Mandate for Palestine; and the U.S. did the same via the 1924 Anglo-American Treaty, which incorporates the Mandate for Palestine word for word. Article 6 of this Mandate stipulates that the Jews are to be encouraged to settle closely on the land. What Britain, France, and the U.S. gave with one hand they recently tried to take away with the other hand. They violated both promissory estoppel and proprietary estoppel. (https://en.wikipedia.org/wiki/Estoppel)
Second, UNSC Resolution 2334 violates the UN Charter's own Article 80 (http://avalon.law.yale.edu/20th_century/unchart.asp#art80) which preserves the rights of all peoples given them by previous legal instruments. The Mandate for Palestine ((http://avalon.law.yale.edu/20th_century/palmanda.asp) and the Anglo-American Treaty (http://www.alliedpowersholocaust.org/wp-content/uploads/2015/03/1924-Anglo-American-Convention.pdf) are just such legal instruments. Article 80 has, in fact, been referred to as "the Jewish People's clause" (https://www.algemeiner.com/2011/09/22/article-80-and-the-un-recognition-of-a-%E2%80%9Cpalestinian-state%E2%80%9D/).
Third, there is the principle of uti possidetis juris. There is a good explanation of the concept on this website: (http://webmaster9122.wixsite.com/canadiansforbalfour/israels-borders)
"Writing in the Arizona Law Review, Abraham Bell and Eugene Kontorovich explain that under the widely accepted legal concept of uti possidetis juris, when a newly formed state emerges from a territory that did not have independence or sovereignty, it inherits the borders of that territory. The doctrine has been applied over many years, when nations emerged from colonies, and when independent countries replaced parts of the Soviet Union and its satellites.
"Israel’s borders today are therefore the same as they were when statehood was declared in 1948, those of the Mandate for Palestine, which included Jerusalem, Gaza, and what later came to be known as the West Bank. Events that have occurred in the region since 1948 – such as peace treaties with Egypt and Jordan – have only reinforced Israel’s claim, the authors argue.
"The paper can be viewed on line at: http://arizonalawreview.org/pdf/58-3/58arizlrev633.pdf [I note here that Israel's 1994 peace treaty with Jordan gives Israel's eastern border with Jordan as the middle of the Jordan and Yarmouk Rivers, thereby including East Jerusalem, Judea, and Samaria in the Land of Israel (http://www.kinghussein.gov.jo/peacetreaty.html). MSR]
You will find uti possidetis juris mentioned also in Ian Lacey's online excerpts from Julius Stone's book Israel and Palestine: Assault on the Law of Nations. (http://www.strateias.org/international_law.pdf)
Fourth (and last!), although it is illegal to take territory by force, an exception to this rule is territory taken by a defender in war, as opposed to an aggressor (http://www.strateias.org/international_law.pdf, page 9). In capturing East Jerusalem, Judea, and Samaria in its 1967 Six Day War, Israel was, in fact, liberating territory that rightfully belonged to it from Jordan's illegal occupation and annexation.
However, even if this had not been the case, Israel would still have a claim to such territory (as well as to the Golan, from the heights of which Syrians had been shelling Israeli farmers down below), since territory often changes hands and goes from aggressors to defenders after a war. Much territory changed hands as a result of both World War I and World War II (http://english.aawsat.com/2017/01/article55365486/paris-another-vanity-confab-palestine).
The author is a poet and a former manuscript editor and university English instructor. She writes widely in defence of Israel, as well as writing poems about Israel.
Marjorie Rosenfeld’s essay takes issue with the position of the British Government, as expressed in the following letter that she received from the Near East Department, Foreign and Commonwealth Office, dated the 7th of February of this year.
The letter makes the claim, among other statements, that the Balfour Declaration and San Remo Declaration “ceased to have legal effect” when Great Britain ended the Mandate for Palestine. The letter states that the Mandate “was terminated” (but not by whom) “after” (but not as a result of) the passage of UNGA (United Nations General Assembly) Resolution 181, of 1947.
That resolution recommended – the General Assembly’s role is limited to discussing and making recommendations -- that UN members should adopt a plan to partition the territory into Jewish and Arab sections under an economic union. That never happened. The newly declared State of Israel was subsequently invaded by its neighbours.
Dear Ms Rosenfeld,
Thank you for your email of 13 January to the Foreign Secretary about Israel and the Occupied Palestinian Territories (OPTs). The Near East Department of the Foreign and Commonwealth Office has been asked to reply.
It has been the position of every British Government since 1948 that the OPTs (East Jerusalem, West Bank and Gaza) have not been lawfully part of the state of Israel, whether at its creation or at any point thereafter. We consider that the level of control that Israel retains over these territories amounts to occupation under international law and hence that the Israeli presence is governed by the provisions of the Fourth Geneva Conventions of 1949, to which Israeli is a state party. This is a view shared by the international community and confirmed by the International Court of Justice whilst the Supreme Court of Israel has itself found that the West Bank is held in belligerent occupation.
The UK voted for UNSCR 2334 because of our support for the two-state solution and commitment to Israel as the Jewish homeland. The UK’s support for UNSCR 2334 is consistent with our long-standing position that Israeli settlement activity is illegal and undermines the viability of two states for two peoples. The resolution was an Egyptian draft and not co-sponsored by the UK. The UK engaged with Security Council members before the vote as we do with all Security Council texts. We focused on securing a balanced text that included calls to end incitement and terrorism.
The UK will continue to reject any efforts to de-legitimise or undermine Israel. As the Prime Minister stated in her speech to the Conservative Friends of Israel in December, the UK remains one of Israel’s strongest friends. As a true friend it is important that we stress that settlements are illegal and tarnish Israel’s international credibility. But we are clear that settlements are far from the only problem in this conflict. In particular, the people of Israel deserve to live free from the threat of terrorism, with which they have had to cope for too long.
As you may be aware, the on-going conflict in the Middle East can trace its roots back thousands of years. There have been many attempts to resolve the conflict, involving a myriad of plans, declarations and initiatives by any number of international and regional partners. I will outline some of the history to explain this position as well as our policy towards seeking a resolution of the conflict.
Following Ottoman rule at the end of the First World War and throughout the 1920’s the areas of historical Palestine, Syria, Lebanon and Iraq were governed by mandate awarded by the League of Nations. The mandate was a legal and administrative instrument. The territorial jurisdiction of the mandate was subject to change by treaty, capitulation, grant, usage, sufferance or other lawful means. The document was based on the principles contained in Article 22 of the draft Covenant of the League of Nations and the San Remo Resolution of 25 April 1920 by the principal Allied and Associated Powers after the First World War. Great Britain administered the Palestinian Mandate.
After Britain relinquished the mandate, UNGA Resolution 181 of 29 November 1947, called for the partition of Palestine into Jewish and Arab nations. The UK was the mandatory power that had placed the question before the United Nations but the UK abstained from voting because we were concerned that any solution had to be acceptable to both Jews and Arabs. As the Arabs had made clear that they were opposed to the Partition Plan, the UK felt that it could not support it. The Mandate for Palestine was terminated after adoption of UNGA 181 and the Balfour Declaration and the San Remo Declaration ceased to have legal effect when the UK discharged its mandate.
We remain concerned about the ongoing tragedy of the Israel-Palestinian conflict, and believe that a negotiated two-state solution is the only way to ensure that Israelis and Palestinians can live in peace. I do not underestimate the challenges, but if both parties show bold leadership, peace is possible. The UK is ready to do all it can to support this goal.
On behalf of the
Near East Department
Foreign and Commonwealth Office
The following letter is a response to the letter and to Marjorie Rosenfeld’s article. It is from Alan Baker, retired former ambassador of Israel to Canada. He is now Director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs and the head of the Global Law Forum.
Your paper is excellent and clearly the British claim that the termination of the Mandate cancelled all the related international declarations, is nonsensical.
The San Remo Declaration was an international treaty and its validity was never dependent on the Mandate or its termination.
Article 80 of the UN charter acknowledges the importance and continued validity of all such international commitments made before the establishment of the UN.
The British explanation of their support for Security Council resolution 2334 is utterly shallow and political, to the extent of being embarrassing. They just blindly followed France and Obama out of their own political interests.
The U.K. could have vetoed the resolution on the basis of principle, justice, logic and good sense. That's how former Canadian prime minister Stephen Harper acted in the UN and other organizations in dealing with resolutions that were clearly one-sided, misguided, partisan and damaging to the international community.
But the U.K. obviously is too week morally and politically to act independently and do the right thing, despite Brexit.
Alan Baker, Advocate, Ambassador (ret'), Jerusalem Center for Public Affairs