How Britain broke international law to prevent Palestinian independence 100 years ago
The Balfour Declaration violated Britain’s legal commitments as set out in the League of Nations Covenant. This establishes a legal basis for the Palestinian people to demand reparations from the UK.
In his speech to the United Nations General Assembly last week, Palestinian Authority President Mahmoud Abbas called for “reparations… in accordance with international law” from the United Kingdom for the “disastrous Balfour Declaration.” This statement was made by British Foreign Secretary Arthur Balfour in 1917, pledging to establish a “national home for the Jewish people” in Palestine, when Palestine was already inhabited by predominantly non-Palestinians. Jews. Is there a legal basis for reparations for an event that occurred at a time when global standards were different than they are today? Based on new research, we say yes, and that the key to this answer is a legal agreement adopted a hundred years ago today.
The Balfour Declaration itself is just a political statement. Its legal value is doubtful as a binding commitment made when the United Kingdom had no authority over Palestine. What gives it political, practical and legal value is something else, dating from another time.
At the end of World War I, the victorious allies took over the colonies of the defeated powers. The United Kingdom became the power in Palestine, replacing the Ottoman Empire. These agreements were placed under the authority of the League of Nations within the framework of the mandate system, subject to the rules of the Covenant of the League, which is part of the Treaty of Versailles.
The administration of each mandate is set out in a “mandate agreement”, itself a legally binding instrument adopted by the League’s Governing Council.
The Palestine Mandate Agreement took Balfour’s commitment and developed it into a detailed set of objectives for colonial rule. It then formed the apparent legal basis for the practical implementation of these objectives by the United Kingdom: maintaining the territory for a quarter of a century and allowing Jewish immigration, Jewish land and property ownership and the creation of Jewish institutions of self-administration. This paved the way for the proclamation of Israeli independence in part of Palestine in 1948. In international law, therefore, it is the mandate agreement, and not the Balfour Declaration as such, which is the key legal instrument. This agreement came into force on September 29, 1923, one hundred years ago today.
The legal conundrum lies in the fact that there is a fundamental contradiction between the Balfour Plan of the agreement and Article 22 of the League Pact, which requires that the mandates of the former Ottoman Empire, such as Palestine , be “provisionally recognized” as “independent nations”.
New research reveals a factor previously overlooked when this contradiction was assessed by experts: whether or not the League Council had the legal authority to apparently circumvent the Covenant’s requirement to provisionally recognize the ‘existence of statehood through the Agreement of 1923. The Council did not have this power, and therefore those parts of the Agreement which purported to circumvent the requirement of the Covenant were null and void. Therefore, the UK had no legal cover under the agreement for failing to implement Palestinian statehood in the 1920s. This omission therefore constituted a violation of international law. The proclamation of an Israeli state in 1948 necessarily involved a violation of the collective legal right of the Palestinian people set forth in the Covenant.
“Any member state of the League of Nations would today be able to bring a claim against the United Kingdom before the International Court of Justice. »
The 1923 agreement is also the path to international recourse. It provides that any member state of the League may refer the matter to the Permanent Court of International Justice of the League if it complains about the manner in which the mandatory state fulfills its obligations under the mandate. While the League of Nations and its Permanent Court have disappeared, the United Nations International Court of Justice in The Hague, which succeeded it, inherited the jurisdiction of its predecessor. Indeed, the International Court has already affirmed, in a different context, that the obligations arising from the Covenant concerning mandates did not end with the extinction of the League of Nations.
Therefore, any Member State of the League of Nations would today be able to bring a complaint against the United Kingdom before the International Court of Justice in The Hague, to ask the Court to grant the reparations demanded by the Palestinian people .
The past is present. It is commonly accepted that the current denial of self-determination of the Palestinian people is due to the creation of Israel in 1948 and the occupation of the remaining parts of Palestine by Israel since 1967 – and that both of these give rise to violations of international law by Israel. But it must also be understood that all of the above has its origins in the actions and omissions of the United Kingdom during the mandate period. Furthermore, it must be understood that these acts and omissions were illegal and that there is today an international remedy for this illegality.
Shawan Jabarin is the director general of Al-Haq, a Palestinian human rights organization. He is vice-president of FIDH, the International Federation for Human Rights, and a member of the International Commission of Jurists.
Ralph Wilde is a member of the Faculty of Law at University College London.
Source: Mondoweiss
ED translation for the Palestine Media Agency
