The international sanction for Great Britain to implement the Balfour
Declaration's policy in Palestine had formally derived from the League of Nations, which conferred the legal title, and in whose name the Mandatory Power had governed. The question of where the ultimate sovereignty of a Mandated Territory lay has been the subject of varying interpretations, which need not be examined in this study. Several authorities, basing their views on the wording of Article 22 of the Covenant, and stressing that the League was founded on the principle of non-annexation of territories and that the mandates prohibited the alienation of territory (article 5 of the Palestine Mandate), have ruled that sovereignty rested with the people of a Mandated Territory, albeit in suspense since they could not exercise it. One representative view may be quoted:
"The drafters of the Treaty of Versailles, bearing in mind above all the right of peoples to self-determination, formally declared that Mandated Territories were not to be annexed by any Power, be it the community of States known as the League of Nations that was based at Geneva or any individual State. To all intents and purposes, these Territories belong to the indigenous inhabitants and communities, which the League has set out to defend and on whose behalf it acts as a kind of family council". 110/
The view taken by the International Court of Justice in the question of the status of South-West Africa is that sovereignty was not transferred to the Mandatory Power:
"The terms of this Mandate, as well as the provisions of Article 22 of the Covenant and the principles embodied therein, show that the creation of this new international institution [the Mandate] did not involve any cession of territory or transfer of sovereignty to the Union of South Africa. The Union Government was to exercise an international function of administration on behalf of the League, with the object of promoting the well-being and development of the inhabitants". 111/
According to Professor Quincy Wright:
"Communities under 'A' Mandates doubtless approach very close to sovereignty". 112/
Since Palestine as an "A" Mandate whose sovereignty could not be alienated either by the Mandatory Power or by the League, it is of interest to glance briefly at the supervisory responsibility of the League of Nations, as exercised through the Permanent Mandates Commission (PMC), during the life of the Palestine Mandate.
In a report to the League Assembly the Council noted:
"With regard to the responsibility of the League for securing the observance of the terms of the Mandates, the Council interprets its duties in this connection in the widest manner.
"Nevertheless the League will obviously have to display extreme prudence, so that the exercise of its rights of control should not in any way increase the difficulties of the task undertaken by the Mandatory Powers". 113/
In practice this meant that the PMC required annual reports from the Mandatory Power and offered comment on policies and developments in the mandated territory. Only when there was a major outbreak of violence, as in 1929 or in 1936, did the PMC exercise the functions in any wider manner.
In its very first meeting after the Palestine mandate came into effect in 1923, the PMC noted its sui generis nature and recorded its concern over its inherent contradictions, observing:
"Whereas all the other mandates the application of which it has hitherto examined were only intended to give effect to the general principles laid down in Article 22 of the Covenant, the Palestine Mandate is of a more complex nature. As is expressly stated in the preamble of the Mandate, and as is clearly shown by several of the clauses of this document, the Council, in drawing up its terms, desired, while giving effect to the provisions of Article 22 of the Covenant, to carry out also the plan of establishing in Palestine a national home for the Jewish people, as stated in the historic Declaration of 2 November, 1917, with which Lord Balfour's name is associated - a Declaration which the Principal Allied Powers adopted. According to the fundamental principle of Article 22 of the Covenant the paramount duty of the Mandatory Power is to ensure the development of the mandated territories by administering them in conformity with the interests of their inhabitants. On the other hand, in the terms of the Declaration of 2 November 1917, the Mandatory Power is instructed to assist the establishment in Palestine of a 'national home for the Jewish people ... 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'.
"It is not in any way for the Commission, whose duty it is, according to Article 22 of the Covenant, 'to advise the Council on all matters relating to the observance of the Mandate', to offer any observations whatever concerning the actual contents of the Mandates, the application of which it is called upon to examine, or to contrast the two principles which the Council sought to embody in the terms of the Mandate for Palestine. But, as this Mandate of necessity reflects the dual nature of its inspiration, and as its application has given rise to complaints by persons basing their case on one or other of these principles to the exclusion of the other, the Commission would not be fulfilling its task if it refrained from making any reference to the facts which have come to its notice in this connection ..." 114/
In the following years the reports from the Mandatory Power were treated in a routine fashion. In 1929, however, the PMC expressed sharp criticism of the Shaw report on the "disturbances" that year, expressing the opinion that the violence arose from direct opposition to British policies that the Palestinian Arabs considered as a denial of their inherent natural rights.
"The Mandates Commission considers that the Palestine disorders cannot justly be regarded as an unexpected disturbance in the midst of political calm, like those sudden explosions of popular passion which have so often been witnessed in the East. They were preceded during the last four months of 1928 and in the early part of 1929 by a number of premonitory incidents which were usually connected with the Wailing Wall ...
"The conclusion, that the outbreak was not directed against British authority, seems to be expressed too categorically.
"Doubtless the Arab attacks were directed only against the Jews, but the resentment which caused the Arabs to commit these excesses was ultimately due to political disappointments which they attributed to the parties concerned in the mandate, and primarily to the British Government. All the declarations by persons and organizations representing the Arab section tend to emphasize the fact that the Arab movement was a movement of resistance to the policy of the Mandatory Power solely in its capacity as mandatory. This has never been more clearly stated than in a letter from the Palestinian Arab delegation, and in a telegram from the Arab Executive, both received by the members of the Permanent Mandates Commission during the extraordinary session. The first reads as follows:
"We believe that the main cause of the disturbances which have led to continual bloodshed in Palestine for the last 12 years is the persistence of the British Government in depriving the Arabs of their natural rights. We feel that there can be no security in future against the recurrence of disturbances such as those which have taken place, or perhaps of an even more serious nature, unless the British Government promptly and radically changes its policies ..." 115/
Yet, paradoxically, the principle of self-determination was not upheld by the Commission. While it expressed understanding of the Palestinian desire for self-government, it warned that this was contrary to the terms of the Mandate, and that therefore the Commission could not support those aspirations:
"The claim for self-government is in no way surprising in a people who can watch the operation of representative institutions in some of its neighbours of the same race and civilization; it is an expression of a sentiment - pride of race - which certainly commands respect and can be justified to some extent by the terms of the Covenant and of the mandate itself. If those responsible for the agitation hoped by its means to secure the triumph of their opposition to the League of Nations as a party to the mandate, they will find no encouragement from the Mandates Commission ...
"To all the sections of the population which are rebelling against the mandate, whether they object to it on principle or wish to retain only those of its provisions which favour their particular cause, the Mandatory Power must obviously return a definite and categorical refusal. As long as the leaders of a community persist in repudiating what is at once the fundamental charter of the country and, as far as the Mandatory Power is concerned, an international obligation, which it is not free to set aside, the negotiations would only unduly enhance their prestige and raise dangerous hopes among their partisans and apprehensions amongst their opponents ... 116/
This session of the PMC had heard statements on the "dual obligation", asserting that:
"... It was the duty of the Mandatory Power to establish the national Jewish home, and to develop self-governing institutions so far as was compatible with such establishment ..."
The view of the Chairman was:
"... In considering the two parts of the mandate, it was necessary to bear in mind the fundamental principle of all the mandates. The purpose of the mandates as described in Article 22 of the Covenant was the development and welfare of the inhabitants of the mandated territory ... It was necessary to insist that the establishment of the national home for the Jews must be made compatible with the introduction of autonomous institutions. That was the Arab view and it was consistent with the fundamental purpose of the mandate ..." 117/
However in its report, the PMC made clear that in its view the dual obligations were of equal weight and were not irreconcilable.
(On this occasion, the League Council, on the request of the British Government, dispatched a League Commission to investigate Jewish and Muslim claims concerning the Wailing Wall. Their recommendations in 1931 in general confirmed the status quo and were implemented by the Palestine authorities.)
For the following five years the reports on the Palestine Mandate again received routine comments, until the outbreak of the Palestinian rebellion in 1936, when the League Council called the PMC to formulate a "Preliminary Opinion" on the Royal Commission's proposal for terminating the Palestine Mandate by partition rather than independence, a radical proposal with weighty implications for the Mandates system. The PMC elaborated on the contradictions inherent in the mandate, and the problems raised by the British proposal:
"By these communications, the Permanent Mandates Commission was given a task that was entirely new to it. It was no longer a question of examining the annual reports of the Mandatories and advising the Council on all matters relating to the observance of the mandates, as its mission is defined in the Covenant itself; nor was it a duty such as that assigned to it by the Council in 1931, of determining whether a mandated territory had reached a degree of maturity justifying its emancipation.
"The Commission's task today is to express a preliminary opinion on the intentions of a Mandatory Power which proposes to the Council the termination of the mandate it has been carrying out for 15 years, and which, in support of this proposal, adduces not so much the attainment of maturity by the ward as the difficulties of guardianship.
"This opinion, it is true, was expressly requested by the Council and the Mandatory Power itself. But the Commission could not turn for guidance either to the mandate, which had been challenged, or to the Covenant, which is wholly silent on this subject.
"In the light of what principles, therefore, should it consider the question submitted to it? And, first of all, what exactly was that question itself? ...
"Although the question at issue was its revision, the Palestine mandate remained the centre of the whole of the deliberations. The mandate defines the obligations assumed by the Mandatory Power towards the League of Nations, on whose behalf the territory is administered. These obligations themselves are derived from the Balfour Declaration of 2 November 1917, and from the provisions of Article 22 of the Covenant, to which the United Kingdom Government, in accepting the mandate, undertook to give effect.
"The Commission has never imagined that the Mandatory Power might desire to withdraw from these obligations. The very idea of changing the existing régime was, in fact, the outcome of the difficulties experienced by the Mandatory in carrying out its obligations and of its desire to adapt its policy more closely to the requirements of its mission ...
"The first question to which the Commission has to give a reply to the Council is therefore that of the maintenance of the existing mandate. Although the obligations of the mandate have not appeared to be irreconcilable, the aspirations of Arabs and Jews in Palestine have constantly clashed ever since the mandate was established. What people could be expected to agree wholeheartedly that its country should be used for the establishment of a national home for another people, even if it were thereby to reap appreciable material benefits? And again, it is surprising that a people which, for nearly two thousand years, has been scattered over the face of the earth should have hastened to welcome an offer made to it to reconstruct a national home in the land of his forefathers, under the protection of a mighty empire? It was inevitable from the outset that there would be a conflict between the aspirations of the Arabs of Palestine, desirous of remaining or rather of becoming complete masters in their own house, and the Jews, desirous of constituting or rather reconstituting a national home in Palestine. The very wording of the Balfour Declaration and of the Palestine mandate clearly shows that this inevitable antagonism had been realised by the authors of those documents ...
"The disturbances of 1936 showed how widespread and intense was the hostility of the Arabs to Jewish immigration, and the repressive measures perforce taken by the mandatory Power only added to its doubts of the possibility of applying the mandate without resorting to the constant use of force." 118/
The Commission noted the repercussion of the Peel report on the mandate and expressed reservations on the partition proposal:
"The present mandate became almost unworkable once it was publicly declared to be so by a British Royal Commission speaking with the two-fold authority conferred on it by its impartiality and its unanimity, and by the Government of the Mandatory Power itself ...
"While declaring itself favourable in principle to an examination of a solution involving the partition of Palestine, the Commission is nevertheless opposed to the idea of the immediate creation of two new independent States ...
"The Commission therefore considers that a prolongation of the period of political apprenticeship constituted by the mandate would be absolutely essential both to the new Arab State and to the new Jewish State." 119/
The PMC proposed alternate forms of "apprenticeship", and the Council authorized Great Britain to prepare a partition plan for the League's consideration.
The situation remained fluid as the rebellion in Palestine continued, the PMC commenting in 1938:
"The Royal Commission considered that, during that period, the present mandate would continue to be the governing instrument of the administration of Palestine. In actual fact, however, the Mandates Commission cannot but recognize that the application of the mandate is partially suspended now, as events have prevented some of its essential objects from being pursued." 120/
The 1939 White Paper's reversal from immediate termination of the Mandate by partition to its prolongation with eventual independence for a united Palestine created a new situation for the PMC which, faced with fluctuations in British policy, was unable to make any definite recommendations:
"From the first, one fact forced itself to the notice of the Commission - namely, that the policy set out in the White Paper was not in accordance with the interpretation which, in agreement with the Mandatory Power and the Council, the Commission had always placed upon the Palestine mandate.
"In order to prove this, it will be enough to say that, only two years ago, the Government of the Mandatory Power declared, in the Statement of Policy which accompanied the report published by the Royal Commission, that the present mandate was unworkable. In view of this, the Mandates Commission communicated to the Council its opinion that a mandate which was declared unworkable by the Mandatory Power almost became so by that very fact.
"In 1937, there was already a conflict between Jewish and Arab aspirations, which the United Kingdom Government admitted its inability to reconcile; that conflict was the principal obstacle to Palestine's being administered in accordance with the mandate. Since that time, the conflict has become more and more intense. In 1937, the United Kingdom Government, feeling itself unable equitably to administer Palestine under the present mandate, believed that the possibility of so doing was to be found in a territorial partition for which no provision was made therein, while today it considers its new policy to be in accordance with the mandate. Does this not show that that instrument had at that time a different meaning in the eyes of the Mandatory Power than that which it has today?
"The Commission did not, however, confine itself to establishing this single fact. It went on to consider whether the Palestine mandate might not perhaps be open to a new interpretation which, while still respecting its main principles, would be sufficiently flexible for the policy of the White Paper not to appear at variance with it. The Commission was all the less reluctant to raise this question since, according to the Mandatory Power, no such contradiction existed. The Commission learned from the Secretary of State for the Colonies that the Mandatory Power considered, on the strength of the opinion expressed by its legal advisers that, in view of the changed situation, the policy which it proposed to pursue was in agreement with the mandate, itself based on Article 22 of the Covenant and on the Balfour Declaration." 121/
There was no consensus in the PMC, but its comment that the 1939 White Paper was not in accordance with the accepted interpretation of the Mandate - with the establishment of the Jewish National Home as its principal objective - was further to complicate the controversy, though any further interest or activity by the League of Nations in the problem of Palestine was precluded by the outbreak of war in September 1939.
110/ Translated from Pic, Pierre, "Le Régime du Mandat d'après le Traité de Versailles": Revue générale de Droit International Public, vol.
XXX, p. 334.
111/ International Court of Justice, "Advisory Opinion regarding the Status of South-West Africa", ICJ Reports. (1950), p. 132.
112/ Wright, Quincy, "Sovereignty of the Mandates" American Journal of International Law, vol. 17 (1923), p. 696.
113/ League of Nations, Responsibilities of the League arising out of Article 22 (Mandates), Doc. No. 20/48/161, Geneva, 1920, p. 3.
114/ Report to Council on the 5th Extraordinary Session of the PMC, Doc. No. C. 661. 1924 VI, Geneva, 1924, p. 4.
115/ Report to the Council on the 17th Extraordinary Session of the PMC, Doc. No. C.355 (1) M.147 (1), 1930, VI, Geneva, 1930, pp. 139-140.
116/ Ibid., p. 143.
117/ Minutes of the 17th Extraordinary Session of the PMC, Doc. No. C.355 M.147, 1930 (VI), p. 49.
118/ Report to the Council on the 32nd Extraordinary Session of the PMC, Doc. No. C.330 M.222, 1937 (VI), Geneva, 1937, pp. 226-228.
119/ Ibid., pp. 229-230.
120/ Report to the Council on the 34th Session of the PMC, Doc. No. C.216 M.219, 1938, VI, Geneva, 1938, p. 228.
121/ Report to the Council on the 36th Session of the PMC, Doc. No. C.170 M.100, 1939, VI, Geneva, 1939, p. 275.
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