"Whose Jerusalem Is It?"

From Israel On Campus (McMaster University, Canada), Oct 1st, 2009, by Dr. Jacques Gauthier:

Sovereignty over Jerusalem and Its Old City

The central point of the lecture was to distinguish between political rights and legal rights. Legal rights are binding, and Gauthier's thesis claims that the Jewish people were given legal rights to Jerusalem through the formalization of the Balfour Declaration of the San Remo Conference by the Supreme Council of Nations, which was the precursor to the League of Nations, and the United Nations.

Gauthier invoked the legal principle of "la chose jugée" (judged issue) in his discussion of how all legal rights and claims recognized by the Supreme Council became irreversible, binding forever in a "sacred trust", and could not be changed with further legislation by the creation of the League of Nations that followed, and the UN after that.

• A solution to the issue of sovereignty over Jerusalem must be made in order for peace to be achieved
• Israel has claimed sovereignty over all of Jerusalem; the Palestinian Authority has claimed sovereignty over East Jerusalem (including the Old City)
• The Green Line is from a 1949 Armistice Agreement between Israel and Jordan
• Based on the Green Line, if Israel were divided today, the western part of Jerusalem would go to Israel, and East Jerusalem and the Old City would go to Palestine
• Maps from the 1^st Century CE and onward show that the borders of Jerusalem have remained almost identical up to today
• It is important to distinguish between legal and non-legal claims
• Herzl, 1896
  • Published his thesis, The Jewish State
  • In 1897, organized the first Zionist Conference in Basil
• Balfour Declaration, 1917
  • Turning point of legal rights of Jews over Palestine
  • Approved by the British War Cabinet during World War I
  • Britain was reaching out for Jewish support and made a binding commitment to help establish a Jewish state in Palestine
• Paris Peace Conference, 1919
  • Five nations formed the Supreme Council of Allied Powers – United States, Britain, Italy, France, Japan
  • Listened to different country claims over the defeated nations
  • Zionist organization presented their statement of claim (political document), stating what they wanted recognized by the Supreme Council
    • The Jews wanted a state, a home, and independence in due course
    • Wanted Britain as their trustee, to help them until they were in a position to declare independence
    • Weizman presented at the conference an request for recognition of the Jewish title to Palestine and the right of the Jews to reconstitute their national home in Palestine
  • Arab delegation
    • Represented by the Hashemite family (controlled Mecca)
  • The Arab and Jewish delegations met before the conference. The Arabs agreed to support the Jewish claim to Palestine if the Jews helped the Arabs achieve independence
• Article 22 of the League of Nations
  • Refers to territories that are not ready to govern themselves
  • Victors of the war set up mandates (trusts) over these territories
• Every treaty signed at the Paris conference dealt with rights and titles; the defeated nations had to renounce their rights and title to the victors
  • This was binding by international law
• San Remo, Italy, 1920
  • The Supreme Council did not have time at the Paris conference to make a decision regarding the Ottoman territories
  • Came to San Remo to make this decision
  • April 25, 1920: Decided to give recognition to the title of the Jewish claim over Palestine and to the Arab claim over Mesopotamia (Iraq)
  • Mandate for Palestine – political rights given to the Jewish people, and civil rights were given to the current inhabitants
    • Preamble recognises the Jewish connection to Palestine and the grounds for the Jews to reconstitute their national homeland in Palestine
      • This turns the political claim of the Balfour Declaration into a legal claim
      • 14 million Jews were deemed to have rights in Palestine if they chose to immigrate
• 1921: The Hashemites became angered by the French. To appease them, the British give the Hashemites the throne over Iraq and the throne of Trans-Jordan.
  • The land that had been granted to the Jews was divided up, the western portion became Trans-Jordan
  • Britain pledges support in establishing a Jewish state with the remaining land
• Partition Resolution, 1947, by the General Assembly of the UN
  • Not binding
  • The Jews accept the Partition Resolution (West Palestine would become an Arab state, Jerusalem would be an international city)
    • As part of the Resolution, a referendum would occur after 10 years to modify the rights to Jerusalem

The Jewish people are not occupiers of Jerusalem because they were given the right to establish themselves there

Conclusion: From the perspective of international law, there are binding decisions from the League of Nations that have been reneged and forgotten