In an address to the Arab Summit on July 25, Mohammad Abbas, through a secretary, announced that the “nation of Palestine” intends to sue Great Britain for having issued the Balfour Declaration in 1926, and asks the Arab League members for their support.
The Palestinians have no patent on Political Theater, by any means. But what on earth could a lawyer/expert in international law have to say?
How do you sue a country? Statute of limitations? Venue?
I don’t know if you weren’t paying attention to what forum this is in, but since it is in GQ let’s try to stick to factual answers. We do allow some latitude in GQ after the question has been factually addressed, but this question hasn’t been factually answered yet, and even if it had, this sort of comment still isn’t appropriate here. If you want to make a comment like this, please take it to a more appropriate forum.
ok ok, my bad. To the OP; I don’t know how they can sue Britain, because Britain alone didn’t decree Balfour, but the League of Nations turned it into international law. Something tells me they’d have to act against the League of Nations, which no longer exists. Perhaps the UN might be the venue, if its the legal successor to the LON as Russia is to the USSR (despite the 14 other countries).
I think the first issue is not what forum the proceedings could be brought in, but on what basis you think you have a claim. Once you know what your claim is, then it’s time to look around for a forum in which to bring it.
At a wild guess, I’d say the Palestinian claim would be framed to include the following points:
In 1917 (when the Balfour declaration was made) the UK had no control over, or interest in, Palestine (which was part of the Ottoman empire) and had no business to dictate who should or should not settle there. This was an unwarranted interference in the sovereign affairs of another country. Even if the UK was in military occupation of part of Palestine at the time, military occupation does not give a state the right to make decisions of this kind.
Even if the UK did have some kind of standing to make decisions of this kind, this particular decision was made without reference to the people of Palestine, their wishes, their interests or their right to self-determination. It was an essentially colonialist declaration, in which the UK arrogated to itself both the right to control the affairs of Palestine and the right to bring in settlers of its choice to Palestine.
After the War, the territory of Palestine was mandated to the UK by the League of Nations. A mandated territory was not a colony or a protectorate; the mandatory power was supposed to “render administrative advice and assistance” to the territory in the interests of its inhabitants, and to prepare it for self-government. The UK had no business using its position as mandatory power to advance the project of establishing a homeland for the Jewish people there; that might serve the interests of the UK itself, or it might serve the interests of the Jewish people, but doesn’t appear to have anything to do with the rights, wishes or interests of the inhabitants of Palestine. In so far as the terms of the mandate appeared to endorse that project, that was a violation of the League of Nations Charter
(Possibly worth noting here that objections of this kind would overlap with objections made by the United States at the time - that the whole mandatory system was a device created by the victorious European powers to carve up the spoils of war in a colonialist way under the cover of some kind of legitimacy. But as the US declined to join the League of Nations, its capacity to influence either th design or the operation of the mandate system was very limited.)
So, assuming there is some kind of legal basis for a challenge here, is there a forum? Well, perhaps. There’s the International Court of Justice, and the UK (along with all other UN member states) is a party to the Statute of the Court. So the ICJ is available as a forum for resolving international legal disputes in which the UK is a party. (I’m not sure, though, what the status of the Palestinian Territories is with respect to the ICJ and its Statute. But let’s assume that the Palestinian Territories are, or can put themselves in, a position to seek a ruling from the ICJ.)
The ICJ doesn’t automatically have jurisdiction to here every dispute that a state may bring to it. Jurisdiction is on the basis of consent. So the PT can’t take action in the ICJ against the UK without the consent of the UK.
States can consent to jurisdiction in various ways. Two states who have a legal issue between them that they need or want to get resolved can agree to take it to the ICJ. Or, states may become party to a treaty that includes a clause under which disputes about the treaty or its subject matter are referred to the ICJ, and by adhering to the treaty they consent to the court’s jursidiction in relation to those disputes. Or, a state can make a general declaration accepting the jurisdiction of the ICJ with respect to a certain class of dispute, or all disputes, or all disputes other than a certain class of disputes. The UK has made such a declaration, but I’m not sure of its terms.
So that’s another hurdle the PT would have to cross; they’d have get the UK to consent to submit the dispute to the ICJ, or they’d have to frame the dispute in terms that bring it within some consent that the UK has already given.
Finally, the obvious question: what relief or remedy would the Palestinian Territories seek from the UK? The UK doesn’t control any part of what is now Israel, so they can’t exactly “give it back”, can they? And I can’t see that payment of any monetary compensation or the like is of much use or relevance here. So I think what the PT would really be looking for is a declaration about the illegality of the way the British administered their mandate in Palestine, in the belief or hope that that would underline (what they consider to be) the illegitimacy that taints the State of Israel.
Nitpick: it’s the Balfour Declaration of 1917 that concerns Palestine and the establishment of a Jewish state. The Balfour Declaration of 1926 was about the independence of the British dominions, and had nothing to do with Palestine.
The counter-argument would seem to be that the action of the United Nations to create the state of Israel ratified the partition of the area for purposes of international law and abrogated any prior claims that might have existed.
Some Palestinian sources cite that action - Resolution 181(II) - as the legal basis for Palestinian statehood, and regard the rejection of the resolution by Arab leaders at the time as a serious mistake. From memory, Abbas is of this view. It’s possible that by instituting proceedings which will end up in reaffirming the legitimacy and validity of Resolution 181(II), he hopes to strengthen his hand against Palestinians of the contrary view, or to strengthen the case (as against Israel) for recognition of Palestinian statehood, or both.
Note that there was a fairly large Jewish population in the country prior to WW1, although nowhere near a majority. *They *had a right to self-determination as well, and that right also arguably included the right to allow immigration.
Arguments about the conduct of the UK in this case aside, I wonder if the principles of international law would allow a party to contest actions which led to a state of affairs that the party in question later acceded to.
The Oslo Accords, which established the PA, inter alia accepted the existence of Israel - didn’t the Palestinians effectively ratify the Balfour Declaration by that?
Obviously, this is a hopeless case, undertaken for political purposes. However, it is interesting in a legalistic sort of way.
I agree that you have well summarized what is likely to be their case.
The first problem the will have is, of course, that the Balfour Declaration did nothing whatsoever - it was a mere statement of principle. I doubt a statement that the government “favours” some course of action or other is a document capable, under any circumstances, of sustaining a case. What matters is what the government does.
The second problem is that this statement of principle was re-echoed in various forums that authority and status under international law. Most notably, in the document that established the Mandate.
It was the League of Nations that expressly empowered the British to carry out, on its behalf, the Mandate - the express purpose of which is stated to carry out the terms of the Balfour Declaration.
Therefore, the defendants in this case are not simply the British - they are the Council of the League, which empowered the British to carry out the terms of the Mandate. It will be an extremely tough case to state that the League could not have “legally” issued the Mandate, that it was somehow ultra vires its powers.
That’s for starters. Then there is the various UN actions under which the Mandate was legally terminated. All of which are ‘intervening causes’ (not to mention the subsequent War in ‘48) between the Palestinians’ damages and the Declaration.
Yes. And we’ll have to wait until the PT case is more fully set out (if it ever is) to see where they’re going with this. Perhaps they are going to allege that the UK not only made the Declaration but also set about implementing it in ways that were unlawful.
Well, wild guess coming up here: one of the things that will be alleged against the UK is that it is responsible for procuring the reflection of the Balfour Declaration in the terms of the mandate in the first place. And the claim will be (1) this was unlawful/improper; it contravened the principle of self-determination endorsed in the League’s own Charter. And (2) it was based on dishonesty/untruth; the statements that “the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration” and that the declaration “had been adopted by the said Powers” were both objected to at the time by the United States, which pointed out that it had done neither of these things, and wasn’t disposed to do them. If I recall correctly, this kind of thing was cited by those in the US who (successfully) argued that the US should have nothing to do with the League and all its works and pomps.
But even if we grant all this, if we accept the murky history of the Balfour declaration and the award of the Palestinian mandate; the League did what it did, and it did explicitly mandate the UK to put the Balfour declaration into effect. And perhaps if the League were still around the PT would be adding the League as co-respondents with the UK, or looking for some relief as against the League. But, obviously, that’s not an option.
Yes, yes. Not only because of the actions of the League, but also because of the actions of the UNO, as well as because of much that has occurred since, we are where we are and the State of Israel is a political and legal given. And there’s no suggestion that the relief sought by the PT is going include a declaration by the Court that the State of Israel is null and void, or anything of the kind (and there is no possibility whatsoever that such a declaration, if sought, would be made by the Court).
But, remember, these proceedings are proposed by those in the Palestinian movement who accept the State of Israel, and who want to move to some kind of amelioration or resolution of the Palestinian question in which existence of the State of Israel is a given. They are not looking for or hoping for the erasure of the State of Israel; rather a reconciliation of the interests of the State of Israel with Palestinian interests. That implies - that requires, really - some negotiation, some compromise. And I suspect what these proceedings are intended to do is to influence the climate, the context, within which that negotiation or compromise will occur. The Palestinians see the process which gave rise to the State of Israel as an esssentially colonialist enterprise, conducted in violation of principles of international law which were generally recognised at the time, and to which participants in the process (like the UK) paid lip service. And they reckon that resulted in injustice for Palestinians, and that redress for that injustice is a proper factor that should influence the reconciliation or compromise of Israeli and Palestinian interests.
It seems to me this provides exactly the powers that were exercised. There is nothing in this that would prohibit the allowing of immigration, even on a large scale; it provides, expressly, that the ‘self determination’ of peoples under mandatories would be held in abeyance to a greater or lesser extent, depending on individual circumstances, and which are to be established in later documents (such as the Mandate in question here).
The plaintiffs will have to make a harder case, that somehow these provisions, and the mandate, were in breach of some existing principle of international law that gave them and inherent right to self-determination, including control over immigration. I suspect no such right existed, particularly at the time, so that will be difficult: even Wilson’s 14 Points never adopted self-determination of a national majority as the only criterion of governance, and the League (and everyone else) never adopted the 14 Points, which never became international law.
Indeed, the issue addressed by Wilsonian “self determination” was rather which imperial overlord would own which territory, not the ethnic composition of the territory. From the Points:
This is similar to the part of s. 22 of the League Charter, which said:
… which only applied to “Certain communities” of the former Turkish Empire (exactly which parts were not specified), and not universally.
In short, at its highest, this principle was a principle of allowing the existing population a choice of which “sovereignty” the governed are to be governed by.
There was no notion that “self-determination” implied anything like a representative democracy, or that the wishes of the existing majority ought always to be favored over minorities (including that they should be allowed to stay a majority, and be protected from the minority expanding as a result of immigration).
2. The US never joined the League, so I would assume that the term “Principal Allied Powers” was intended to be defined as those powers who were League Members; I can’t see the absence of the US as invalidating the Mandate.
They could I suppose plausibly argue that the UN is the successor organization to the League, and to the extent that the UN endorsed League activities, it inherits their mantle.
The problem is that the UK, even if it wanted, has very little ability to influence Israeli actions today. Why should Israel care that the UK allegedly committed some wrong in the 1920s to Palestinians? That, they may well say, is between the Palestinians and the UK.
I rather suspect this is little more than political theatre intended for domestic consumption- I doubt it will have much impact in the Israelis, who are used to having various forms of invective flung at them. A theoretical breach of some obscure (and probably non-existent) principle of international law in the 1920s isn’t likely to sway them.