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Published online by Cambridge University Press: 21 October 2016
This article examines the essential characteristics of the Palestine Mandate in the context of the League of Nations mandate system as a whole, pointing out its particular nature. It commences with a brief look at the Versailles environment and the relevance of the principle of self-determination, with an emphasis upon the development of the mandate system. The article then turns to consider the Palestine Mandate in its historical framework and the exceptionality of this Mandate. The distinction between the international allocation of the status of a territory and the determination of its boundaries is posited.
1 See, eg, Versailles Peace Treaty (entered into force 10 January 1920) (1919) 13 American Journal of International Law Supplement 151, 385; Macmillan, Margaret, Peacemakers: Six Months that Changed the World (John Murray 2002)Google Scholar; Sharp, Alan, The Versailles Settlement: Peacemaking after the First World War, 1919–1923 (2nd edn, Palgrave Macmillan 2008)CrossRefGoogle Scholar; Goldstein, Erik, The First World War Peace Settlements 1919–1925 (Longman 2002)Google Scholar; Lansing, Robert, The Peace Negotiations: A Personal Narrative (Houghton Mifflin 1921)Google Scholar; Henig, Ruth, Versailles and After 1919–1933 (Routledge 1984)Google Scholar.
2 Macmillan, ibid 4–5, 61.
3 ibid Ch 6.
4 ibid 66.
5 ibid.
6 See, eg, Shaw, Malcolm N, International Law (7th edn, Cambridge University Press 2014) Ch 10Google Scholar; Jennings, Robert Y, The Acquisition of Territory in International Law (Manchester University Press 1963)Google Scholar; Prescott, Victor and Triggs, Gillian D, International Frontiers and Boundaries (Martinus Nijhoff 2008)CrossRefGoogle Scholar; Castellino, Joshua and Allen, Steve, Title to Territory in International Law: A Temporal Analysis (Ashgate 2002)Google Scholar; Johnson, DHN, ‘Acquisitive Prescription in International Law’ in Shaw, Malcolm N (ed), Title to Territory (Ashgate 2005) 273Google Scholar, and Stefan Schwebel, ‘What Weight to Conquest?’, ibid 393.
7 ‘Report of the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question’ (1920) League of Nations Official Journal Supplement No 3, 5–6 and League of Nations Council Doc B7/21/68/106 [VII] (1921), 22–23. See also Barros, James, The Aaland Islands Question: Its Settlement by the League of Nations (Yale University Press 1968)Google Scholar. That situation, which concerned the Swedish inhabitants of an island alleged to be part of Finland, was resolved by the League's recognition of Finnish sovereignty coupled with minority guarantees, and not by any international acceptance of an international legal right to secession.
8 See, eg, Buchanan, Allen, Justice, Legitimacy and Self-Determination (Oxford University Press 2004)Google Scholar; Summers, James, Peoples and International Law: How Nationalism and Self-Determination Shape a Contemporary Law of Nations (Brill 2007)Google Scholar; Knop, Karen, Diversity and Self-Determination in International Law (Cambridge University Press 2002)CrossRefGoogle Scholar; Musgrave, Thomas Duncan, Self-Determination and National Minorities (Oxford University Press 1997)CrossRefGoogle Scholar; Cassese, Antonio, Self-Determination of Peoples: A Legal Reappraisal (Cambridge University Press 1995)Google Scholar; Tomuschat, Christian (ed), Modern Law of Self-Determination (Martinus Nijhoff 1993)CrossRefGoogle Scholar; Franck, Thomas, The Power of Legitimacy among Nations (Oxford University Press 1990) 153 ffCrossRefGoogle Scholar; Crawford, James (ed), The Rights of Peoples (Oxford University Press 1988)Google Scholar; Koskenniemi, Martti, ‘National Self-Determination Today: Problems of Legal Theory and Practice’ (1994) 43 International and Comparative Law Quarterly 241CrossRefGoogle Scholar; Simpson, Gerry, ‘The Diffusion of Sovereignty: Self-Determination in the Post-Colonial Age’ (1996) 32 Stanford Journal of International Law 255Google Scholar.
9 Summers, ibid 155 ff.
10 Westlake, John, International Law: Part I (Cambridge University Press 1910) 5Google Scholar.
11 See Lansing (n 1) App IV, 314; see also Whelan, Anthony, ‘Wilsonian Self-Determination and the Versailles Settlement’ (1994) 43 International and Comparative Law Quarterly 99CrossRefGoogle Scholar; Mazower, Mark, ‘Minorities and the League of Nations in Interwar Europe’ (1997) 126 Daedalus 47Google Scholar; Mazower, Mark, Governing the World: The History of an Idea (Penguin Press 2012)Google Scholar.
12 Wilson, Woodrow W, ‘An Address to a Joint Session of Congress’ in Link, Arthur S (ed), The Papers of Woodrow Wilson, Vol 46 (Princeton University Press 1984) 318–33Google Scholar; see also Emerson, Rupert, From Empire to Nation: The Rise of Self-Assertion of Asian and African Peoples (Harvard University Press 1960) 217CrossRefGoogle Scholar.
13 Macmillan (n 1) 66.
14 Macmillan wrote with regard to the Balkans that their statesmen ‘talked the language of self-determination, justice and international cooperation and produced petitions, said to represent the voice of the people, to bolster their old-style land grabbing’: ibid 131.
15 Miller, David Hunter, The Drafting of the Covenant, Vol 2 (GP Puttnam's Sons 1928) 12Google Scholar.
16 Macmillan (n 1) 229 and Sharp (n 1) 130.
17 Sharp (n 1) 132.
18 Lansing (n 1) 96–97.
19 Lansing noted the transfer of large numbers of Germans to Poland and Czechoslovakia and the practical cession to Japan of the Chinese port of Kiao-Chau, the cession of the Austrian Tyrol to Italy and the prohibition of the union of Germany and Austria: ibid 98–99.
20 This consisted of five special minorities treaties binding Poland, the Serbo-Croat-Slovene state, Romania, Greece and Czechoslovakia; special minorities clauses in the treaties of peace with Austria, Bulgaria, Hungary and Turkey; five general declarations made on admission to the League by Albania, Latvia, Lithuania, Estonia and Iraq; a special declaration by Finland regarding the Aaland Islands, and treaties relating to Danzig, Upper Silesia and Memel: see Protection of Linguistic, Racial and Religious Minorities by the League of Nations: Provisions Contained in the Various International Instruments at Present in Force (League of Nations 1927)Google Scholar; Thornberry, Patrick, International Law and Minorities (Clarendon Press 1991) Ch 3Google Scholar.
21 Note that in the early 1930s several hundred petitions were received but this dropped to virtually nil by 1939: Thornberry, ibid 44–46, and Francesco Capotorti, ‘Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities’, 1979, UN Doc E/CN.4/Sub.2/384/Rev.1, 20–22. See also Stone, Julius, International Guarantees of Minority Rights: Procedure of the Council of the League of Nations in Theory and Practice (Oxford University Press 1932)Google Scholar.
22 Thornberry (n 20) 46–48.
23 See, eg, Wright, Quincy, Mandates under the League of Nations (University of Chicago 1930) 35Google Scholar; Hall, Duncan, Mandates, Dependencies and Trusteeship (Stevens 1948)Google Scholar; Bentwich, Norman, The Mandates System (Longmans 1930)Google Scholar; Margalith, Aaron M, The International Mandates (Johns Hopkins Press 1930)Google Scholar; Chowdhuri, RN, International Mandates and Trusteeship Systems: A Comparative Study (Martinus Nijhoff 1955)CrossRefGoogle Scholar; Lauterpacht, Hersh, ‘The Mandate under International Law in the Covenant of the League of Nations’ in Lauterpacht, Elihu (ed), International Law (Cambridge University Press 1970) III, 29Google Scholar; Anghie, Antony, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press 2004) Ch 3Google Scholar.
24 See Lansing (n 1) App IV, 314, point V. See also Miller, David Hunter, The Drafting of the Covenant, Vol 1 (GP Puttnam's Sons 1928) Ch IX, 101Google Scholar.
25 Miller, ibid Ch III.
26 ibid 111 ff.
27 ibid 105. See also International Status of South-West Africa, Advisory Opinion [1950] ICJ Rep 128, 131.
28 Miller (n 24) Ch IX, 105.
29 Wright (n 23) 500–06. See also Lauterpacht, Hersch, ‘The Mandate under International Law in the Covenant of the League of Nations’ in Lauterpacht, Elihu (ed), International Law: Collected Papers (Cambridge University Press 1977) 29, 66–69 Google Scholar.
30 International Status of South-West Africa (n 27) separate opinion of Sir Arnold McNair, 150.
31 ibid; see also Anghie (n 23) 147.
32 South West Africa Cases (Ethiopia v South Africa; Liberia v South Africa), Preliminary Objections [1962] ICJ Rep 319, 319, 329.
33 International Status of South-West Africa (n 27) separate opinion of Sir Arnold McNair, 148.
34 Macmillan (n 1) 112; Pedersen, Susan, The Guardians: The League of Nations and the Crisis of Empire (Oxford University Press 2015) 28–29 CrossRefGoogle Scholar.
35 League of Nations (ed), The Mandates System, Origins – Principles – Application (League of Nations 1945) 31–32 Google Scholar, cited in Whiteman, Marjorie (ed), Digest of International Law, Vol 1 (US Department of State 1963) 626–28Google Scholar.
36 Faroqhi, Suraya N (ed), The Cambridge History of Turkey, Vol 3: The Later Ottoman Empire, 1603–1839 (Cambridge University Press 2006) 525CrossRefGoogle Scholar.
37 Barkey, Karen and Gavrilis, George, ‘The Ottoman Millet System: Non-Territorial Autonomy and Its Contemporary Legacy’ (2016) 15 Ethnopolitics 24, 26CrossRefGoogle Scholar.
38 Göl, Ayla, ‘Imagining the Turkish Nation through “Othering” Armenians’ (2005) 11 Nations and Nationalism 121, 124CrossRefGoogle Scholar; Karpat, Kemal K, An Inquiry into the Social Foundation of Nationalism in the Ottoman States: From Social Estates to Classes, from Millets to Nation (Princeton University Press 1973) 88–97 Google Scholar. As Thornberry has noted, it constituted ‘a beneficial autochthonous system, not imposed by treaty’: Thornberry (n 20) 29.
39 See, eg, Akehurst, Michael, ‘The Arab-Israeli Conflict and International Law’ (1973) 5 New Zealand Universities Law Review 231, 234Google Scholar. See also Quigley, John, The Statehood of Palestine: International Law in the Middle East Conflict (Cambridge University Press 2010) 69–70 CrossRefGoogle Scholar; Doebbler, Curtis FJ, ‘Human Rights and Palestine: The Right to Self-Determination in Legal and Historical Perspective’ (2011) 2 Beijing Law Review 111CrossRefGoogle Scholar; cf Grief, Howard, The Legal Foundations and Borders of Israel under International Law (Mazo 2008) Chs 5 and 6Google Scholar.
40 Margalith (n 23) 131.
41 Wright (n 23) 59–60.
42 ibid 60.
43 ibid 61; Hall (n 23) 149.
44 Mandate, French, art 1: ‘French Mandate for Syria and The Lebanon’ (1922) 3(8) II League of Nations Official Journal 827, 1013Google Scholar; ‘Supplement: Official Documents’ (1923) 17 American Journal of International Law 177, 177Google Scholar.
45 Bentwich (n 23) 72–73; Gordon, Ruth, ‘Mandates’ in Max Planck Encyclopedia of Public International Law (Oxford University Press 2013) para 18Google Scholar.
46 South-West Africa Cases (n 32) 330.
47 International Status of South-West Africa (n 27) 141.
48 Wright (n 23) 119.
49 ibid 120.
50 It was only as a result of vociferous Belgian arguments that the British agreed to detach two provinces from its mandated territory, the former German East Africa (Tanganyika): Macmillan (n 1) 115.
51 See further below text to nn 65–66.
52 Wright (n 23) fn 120.
53 See, eg, art 1 of the Tanganyika Mandate Agreement reproduced in Wright (n 23) 611–12; art 1 of the British Cameroon Mandate Agreement reproduced in Wright (n 23) 616–17; art 1 of the Nauru Mandate Agreement reproduced in Wright (n 23) 618–19.
54 The Palestine Mandate (confirmed by the Council of the League of Nations on 24 July 1922 (1922) 3 League of Nations Official Journal 1007) preamble, para 1 states: ‘The Principal Allied Powers have agreed … to entrust to a Mandatory selected by the said Powers the administration of the territory of Palestine, which formerly belonged to the Turkish Empire, within such boundaries as may be fixed by them …’: reproduced in Wright (n 23) 600. The same phrasing appears in the Syria and the Lebanon Mandate Agreement, preamble, para 1: reproduced in Wright (n 23) 607. No such provision appears in the relevant documentation concerning Iraq, but see Interpretation of Article 3, paragraph 2 of the Treaty of Lausanne (Frontier between Turkey and Iraq), Advisory Opinion (1925) PCIJ Rep (Ser B, No 12) 4.
55 ‘Palestine: Correspondence with the Palestine Arab Delegation and the Zionist Organisation’, Cmd 1700, June 1922, 20, cited in Stoyanovsky, J, The Mandate for Palestine: A Contribution to the Theory and Practice of International Mandates (Longmans, Green 1928) 7Google Scholar. See also Hansard, ‘Pledges to Arabs’, HC Deb 11 July 1922, cc 1032–34 (statement by Winston Churchill, the Colonial Secretary at the time).
56 Macmillan (n 1) 398 ff; UN Information System on the Question of Palestine (UNISPAL), ‘The Origins and Evolution of the Palestine Problem’, pt 1 1917–1947, and pt II 1947–1977; UN Committee on the Exercise of the Inalienable Rights of the Palestinian People, ‘The Right of Self-Determination of the Palestinian People’, 1 January 1979, ST/SR/SER.F/3. See also Stoyanovsky (n 55) 5 ff and the text of the exchange of letters, http://www.udel.edu/History-old/figal/Hist104/assets/pdf/readings/13mcmahonhussein.pdf.
57 See Macmillan (n 1) 394; Stoyanovsky (n 55) 8 ff.
58 Macmillan (n 1) 427 ff. The Declaration was in the form of a letter to Lord Rothschild, written by the British Foreign Secretary and approved by the Cabinet, stating: ‘His Majesty's Government view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, 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’: Letter from the United Kingdom Foreign Secretary, Arthur James Balfour, to Baron Walter Rothschild, 2 November 1917 (The Times, 17 November 1917) (Balfour Declaration).
59 See, eg, ‘The Right of Self-Determination of the Palestinian People’ (n 56) 14 ff. It is interesting to note in passing that on 3 January 1919, Feisal (the son of Hussein, the Sharif of Mecca) on behalf of the Kingdom of the Hejaz, and Weizmann on behalf of the Zionist Organization, signed an agreement in which the former agreed to the application of the Balfour Declaration and, in particular, a large immigration of Jews into Palestine and their settlement on the land. However, this agreement was conditioned upon Arab independence in other relevant areas of the Middle East and, since this did not happen, this significant milestone evaporated. Indeed, for historical interest, when Feisal addressed the Peace Conference Supreme Council on 6 February 1919, he was prepared to exempt the Lebanon and Palestine from the general demand for Arab independence: Macmillan (n 1) 402.
60 Pedersen (n 34) 35–40.
61 Stoyanovsky (n 55) 22–23. The preamble to the Resolution, and of the Mandate therefore, declared inter alia: ‘Whereas the Principal Allied Powers have agreed, for the purpose of giving effect to the provisions of Article 22 of the Covenant of the League of Nations, to entrust to a Mandatory selected by the said Powers the administration of the territory of Palestine, which formerly belonged to the Turkish Empire, within such boundaries as may be fixed by them; and Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might 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; and Whereas recognition has thereby been given to the historical connexion of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country’: Palestine Mandate (n 54).
62 Treaty of Peace with Turkey, 1920, Cmd 964, pt III, s VII, arts 94–97; see also Stoyanovsky (n 55) 23–27; art 95 provided that ‘… the Mandatory will be responsible for putting into effect the declaration originally made on November 2, 1917 by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people …’.
63 Palestine Mandate (n 54); see also Crawford, James, The Creation of States in International Law (2nd edn, Oxford University Press 2006) 423Google Scholar. Note that the French Mandate for Syria and the Lebanon (n 44) was approved in August 1922: (1922) 3 League of Nations Official Journal 802 and 1013.
64 The Palestine Mandate (n 54) art 2 provided that ‘[t]he Mandatory shall be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish national home, as laid down in the preamble, and the development of self-governing institutions, and also for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion’.
65 Palestine Mandate (n 54) art 25 provided: ‘In the territories lying between the Jordan and the eastern boundary of Palestine as ultimately determined, the Mandatory shall be entitled, with the consent of the Council of the League of Nations, to postpone or withhold application of such provisions of this mandate as he may consider inapplicable to the existing local conditions, and to make such provision for the administration of the territories as he may consider suitable to those conditions, provided that no action shall be taken which is inconsistent with the provisions of Articles 15, 16 and 18’.
66 (1922) 3(11) II League of Nations Official Journal, 1188, 1188–89, accepting the British Memorandum on Transjordan; and Official Documents (1923) 17 American Journal of International Law Supplement 133, 172.
67 Gideon Biger, The Boundaries of Modern Palestine, 1840–1947 (Routledge Curzon 2004) 101. See also Grief (n 39) Ch 2; Guillaume Vareilles, Les Frontières de la Palestine 1914–1947 (L'Harmattan 2010) Ch 4. It is to be noted that with regard to the south, the Agreement of 1 October 1906 between Britain and the Ottoman Empire laid down the boundary between Egypt and what became the Palestine Mandate: Agreement signed and exchanged at Rafeh, 1 October 1906, between the Commissioners of the Turkish Sultanate and the Commissioners of the Egyptian Khediviate, concerning the fixing of a separating administrative line between the Vilayet of Hejaz and Governorate of Jerusalem and the Sinai Peninsula, (1905–06) British and Foreign State Papers. See, eg, Nurit Kliot, ‘The Evolution of the Egypt–Israel Boundary: From Colonial Foundations to Peaceful Borders’ (1995) 1(8) Boundary and Territory Briefing; US Department of State, ‘International Boundary Study: Israel-Egypt (United Arab Republic) Boundary’ No 46, 1 April 1965, http://archive.law.fsu.edu/library/collection/LimitsinSeas/IBS046.pdf. See text to nn 72–73 with regard to the Palestine/Transjordan border. See also the Anglo-Transjordanian Treaty of 20 February 1928, and the Israel-Jordan Peace Treaty, 26 October 1994, 2042 UNTS 395.
68 Biger (n 67) 102.
69 Sharp (n 1) 189.
70 Stoyanovski (n 55) 205.
71 Biger (n 67) 128.
72 ibid 113, 122–23.
73 US Department of State, ‘International Boundary Study, Israel-Lebanon Boundary’ (1967). The 1920 and 1923 instruments concerned also the border between the Palestine Mandate and Syria.
74 Crawford (n 63) 429.
75 ibid 430 ff.
76 International Status of South-West Africa (n 27) [137].
77 See, eg, Shaw, Malcolm, Title to Territory in Africa: International Legal Issues (Clarendon Press 1986) 112–13Google Scholar; Castellino, Joshua, International Law and Self-Determination (Martinus Nijhoff 2000) Ch 4 and 151CrossRefGoogle Scholar.
78 Israel-Egypt General Armistice Agreement (with annexes and accompanying letters), 24 February 1949, 42 UNTS 251. See also Israel-Jordan General Armistice Agreement (with annexes), 3 April 1949, 42 UNTS 303, arts 2(2) and 6(9); Israel-Lebanon General Armistice Agreement (with annex), 23 March 1949, 42 UNTS 287, art II; and Israel-Syrian General Armistice Agreement with annexes and accompanying letters), 20 July 1949, 42 UNTS 327, arts II(2) and V(1).
79 See, eg, Benvenisti, Eyal, The International Law of Occupation (2nd edn, Oxford University Press 2012) 204CrossRefGoogle Scholar. Israel regarded the purported annexation as illegal: see Shamgar, Meir, ‘The Observance of International Law in the Administered Areas’ (1971) 1 Israel Yearbook of Human Rights 262, 264Google Scholar.
80 Bassiouni, Cherif (ed), Documents on the Arab–Israeli Conflict, Vol 2 (Brill 2005) 586–90CrossRefGoogle Scholar.
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82 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136, [118].
83 See, eg, UNGA Res 58/163 (22 December 2003), ‘The Right of the Palestinian People to Self-Determination’, UN Doc A/RES/58/163; UNGA Res 67/19 (29 November 2012), ‘Status of Palestine in the United Nations’, UN Doc A/RES/67/19.
84 See further on the rule of intertemporal law, Island of Palmas (1928) 2 Reports of International Arbitral Awards 829, 845; Western Sahara, Advisory Opinion [1975] ICJ Rep 12, [38]–]39]; TO Elias, ‘The Doctrine of Intertemporal Law’ (1980) 74 American Journal of International Law 285Google Scholar; Fitzmaurice, Gerald, The Law and Procedure of the International Court of Justice, Vol I (Cambridge University Press 1986) 135Google Scholar; Thirlway, Hugh, ‘The Law and Procedure of the International Court of Justice 1960–1989 (Part One)’ (1990) 60 British Yearbook of International Law 1, 128CrossRefGoogle Scholar. See also Higgins, Rosalyn, ‘Time and the Law: International Perspectives on an Old Problem’ (1997) 46 International and Comparative Law Quarterly 501CrossRefGoogle Scholar; Greig, DW, Intertemporality and the Law of Treaties (British Institute of International and Comparative Law 2001)Google Scholar.
85 Legal Consequences for States of the Continued Presence of South Africa in South-West Africa (Namibia) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion [1971] ICJ Rep 16, [31].
86 Palestine Mandate (n 54) art 2.
87 As to the nature and operations of the Permanent Mandates Commission, see Pedersen (n 34).
88 See, eg, Fisheries Case (United Kingdom v Norway), Judgment [1951] ICJ Rep 116, [132].
89 See above n 78 and accompanying text.
90 The Peace Treaty between Egypt and Israel, 1979, 1138 UNTS 72, arts I(2) and II, provided for the withdrawal of Israeli forces and civilians from the Sinai behind the international boundary between Egypt and mandated Palestine ‘without prejudice to the issue of the status of the Gaza Strip’.
91 The Israel-Jordan Peace Treaty, 1994 (n 67) art 3(1) and (2) provided that the boundary between the two states was determined ‘with reference to the boundary definition under the Mandate … without prejudice to the status of any territories that came under Israeli military government control in 1967’.
92 The Interim Agreement (n 81) art XXXI(6) declared that ‘[n]othing in this Agreement shall prejudice or pre-empt the outcome of the negotiations on the permanent status to be conducted pursuant to the DOP [Declaration of Principles, 1993]. Neither Party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions’.
93 See text to n 81 above.
94 Legal Consequences for States of the Continued Presence of South Africa in South-West Africa (n 85) [31].
95 Western Sahara (n 84) [31]–[33].
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