By Vacy Vlazna
There may be some truth in Israel’s squawking that the Palestinian bid for state membership in the UN will delegitimize Israel. A cursory look over the history of Israel’s creation reveals legal loopholes in which the legitimate state of the whole of historic Palestine remains intact.
Once the thread of self-determination is pulled, notably article 22 of the Covenant of the League of Nations which is still binding for all members states of the UN under UN Charter article 80(1), the legitimacy of the State of Israel on 88% of stolen land begins unravelling and the settling for 22% of Palestinian soil becomes ludicrous.
Palestine’s right to self-determination and independence has been affirmed repeatedly since the early 1900s.
In 1916, the first commitment to Arab independence, over an area spanning Egypt to Persia, was given by the British government in correspondence between the British High Commissioner Henry McMahon and Grand Sharif Hussein, the guardian of the holy city of Mecca, in exchange for an Arab alliance with the Triple Entente to defeat the Ottoman Empire.
On November 2, 1917, while Palestine was still part of the Ottoman Empire with a slight minority of Jews, a letter, the Balfour Declaration was sent to the British Zionists illegally promising to facilitate a Jewish national homeland in Palestine with the stipulation – "it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine".
"Its promise to use its best endeavours to facilitate the Zionist project could be interpreted as a promise to give to the Zionists what Britain did not have to give, in violation of the established legal maxim nemo dat quod non habet (nobody can give what he does not possess)."
On 16 June, 1918 The Declaration to the Seven formally confirmed Britain’s commitment to Arab self-determination. The statement, "It is the wish and desire of His Majesty’s Government that the future government of these regions should be based upon the principle of the consent of the governed, and this policy has and will continue to have the support of His Majesty’s Government" included Palestine.
On January 3rd 1919, Faisal-Weizmann Agreement supporting an Arab kingdom and Jewish settlement of Palestine was signed with Faisal’s proviso that "Provided the Arabs obtain their independence as demanded in my [forthcoming] Memorandum dated the 4th of January, 1919, to the Foreign Office of the Government of Great Britain, I shall concur in the above articles. But if the slightest modification or departure were to be made [regarding our demands], I shall not be then bound by a single word of the present Agreement which shall be deemed void and of no account or validity, and I shall not be answerable in any way whatsoever."
On January 8, 1918 President Wilson presented his war and peace aims in the Fourteen Points of which Number 12 stated "Turkey itself should have secure sovereignty; but other nationalities should be freed of Turkish rule and be assured of autonomous development, and the Dardanelles should be open to all ships and commerce under international guarantees." This point was incorporated in the Covenant of the League of Nations on June 28,1919 in Article 22 "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."
On March 8, 1920, the Syrian Congress (with Palestinian representatives) passed resolutions on the independence of Syria, including Palestine and Lebanon. King Feisal of Syria was ejected by the French Empire a few months later.
On April 25, 1920 France and Britain, pre-emptive of the peace Treaty of Sevres (August 1920) with Turkey, assigned themselves mandates over Palestine and Syria respectively. Palestine was a type A Mandate guaranteeing self-determination. However in the Treaty, Britain purposely omitted the provision about provisional independence while adding the text of the Balfour Declaration thus violating Article 22. The treaty was soon annulled by Turkish revolutionaries. In June 1922, the League of Nations approved the terms of the Mandate.
Although illegal the Mandatory proceeded, over the next 39 years, with its blatant Zionist agenda until the onset of WWII when once again Arab support was critical to Britain’s war plans. The White Paper was issued by the British government abandoning its expansion of immigration to develop a Jewish national home and supporting instead an independent Palestinian state governed in proportion to the numbers of the Arab and Jewish populations.
In February 1947 Britain desiring to terminate the mandate handed over the fate of Palestine to the United Nations which, on 29 November 1947, passed Resolution 181 against the will of the Palestinians, voting for the partition of Palestine – a partition it had no mandate to approve or enforce.
The United Nations had no business offering the nation of one people to the people of many nations. Its General Assembly had neither the legal nor the legislative powers to impose such a resolution or to convey title of a territory; Articles 10, 11 and 14 of the UN Charter bestows the right on the General Assembly merely to recommend resolutions.
On May 15 1948, the day after the official end of British Mandate, the Zionist immigrants in Palestine unilaterally proclaimed the State of Israel and initiated a reign of ethnic cleansing of the indigenous Palestinian population under the pretense it was defending itself from the Arab hordes when, in fact, it vastly outnumbered and out-armed the Arab nations that tentatively came to Palestine’s aid. The Palestinian territories the Zionist immigrants conquered in 1948-9 would have to be illegal gains as are the occupied territories of the 1967 war.
Today, the recognition of the State of Israel could be tantamount to a situation where Catholic immigrants, armed by Catholic nations, unilaterally proclaimed the USA as the State of Catholic Christendom and then Initiated the New Crusades against Americans to expel and deport the Protestants, Jews etc to Canada and elsewhere.
Further loopholes are raised by Francis Boyle’s comments on the legal parallels between Namibia and Palestine as well as pointing out the State of Palestine has been provisionally recognised by Article 22 of the Covenant of the League of Nations.
It may eventuate that Israel’s weakness has been its refusal to mark its boundaries- boundaries over territory it has occupied illegally since 1947. Following the September bid, a scrutiny of Palestinian rights over the whole of historic Palestine and a decolonisation process could open Palestine to a one state or two state solution according to Palestinian objectives. If Palestinians choose a two state solution then its boundaries will be theirs for the making and the future of 500,000 or more illegal settlers i.e. occupiers would Israel’s problem. Israel, Britain and the US certainly didn’t take the fate of 700,000 dispossessed Palestinians into consideration in 1948-9.
Once Palestine has formal membership, as in the case of East Timor, its popular election of a new Palestinian government could be supervised by the UN thereby overcoming the concerns of a power grab by the present unelected PA leadership. The inalienable right of return for Palestinian refugees would then be an internal political matter sanctioned by the new Palestinian government.
When Britain dishonourably opened the Balfour Box it unleashed Zionist terror and greed on the indigenous Palestinians and contaminated the Western political conscience. At this momentous time, member states must recover the ailing credibility of the UN by upholding the integrity of international law so that Palestine attains its rightful independence and closes the box in a spirit of peace.
– Dr. Vacy Vlazna is Coordinator of Justice for Palestine Matters. She was Human Rights Advisor to the GAM team in the second round of the Acheh peace talks, Helsinki, February 2005 and was coordinator of the East Timor Justice Lobby as well as serving in East Timor with UNAMET and UNTAET from 1999-2001. She contributed this article to PalestineChronicle.com.
 Might over Right, Adel Safty, 2009, p.22. (A highly recommended and significant read.)
 Ibid p.64
 Francis Boyle’s Palestine, Palestinians, and International Law by Stephen Lendman / August 1st, 2008, published in dissidentvoice.org.