User talk:Harlan wilkerson/WWI treaties and newly created states

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A number of very high quality third-party verifiable published sources say that the British Mandate for Palestine was composed of two states, Palestine and Transjordan. Both states were formally recognized by many other countries, including the United States (see below).

  • The people on one side of the border had Palestinian Nationality under the 1925 Palestine Nationality Act, while the people on the other side had Trans-Jordanian Nationality under the 1928 Trans-Jordanian Nationality Act. Yitzhak Gil-Har said that

    "Palestine and Trans-Jordan emerged as states; This was in consequence of British War commitments to its allies during the First World War." (page 68) ... "Great Britain had always treated Trans-Jordan as a political entity completely separate from Palestine. Its inclusion within the framework of the Palestine Mandate was an outcome of the political events following the fall of Faisal's government in July 1920. The Palestine–Trans-Jordan boundary served as a political barrier separating two states. Therefore, the postulation by some writers that the boundary was merely administrative in its character, delineating two territories subjected to the one British rule within the British Empire has no foundation in reality." (page 72) Boundaries Delimitation: Palestine and Trans-Jordan, Yitzhak Gil-Har, Middle Eastern Studies, Vol. 36, No. 1 (Jan., 2000), pp. 68–81: [1]

  • Lord Islington had summed-up the pledges given regarding Palestine to the House of Lords:

    "I do not think it is unfair to say this: In 1915 we were certainly to have an Arab State. In 1917 we were to have a Jewish National Home. In 1918 we were to have a self-governing Arab State under British guidance; that is quite clear from the Declaration of General Allenby. But in 1922 we come back to a Jewish State under a Mandate. Is it possible to reconcile these various policies, wobbling from side to side, year by year? We have, and I do not think the noble Earl contradicted it, distinctly violated two formal undertakings." See the HANSARD, PALESTINE MANDATE HL Deb 21 June 1922 vol 50 cc994-1033

  • According to Howard Grief, a legal advisor to the government of Israel, "Article 22 which established the Mandates System, was largely the work of Jan Christiaan Smuts who formulated the details in a memorandum that became known as the Smuts Resolution, officially endorsed by the Council of Ten on January 30, 1919, in which Palestine as envisaged in the Balfour Declaration was named as one of the mandated states to be created." [2]. He also wrote that Palestine was specifically created at the San Remo Peace Conference on 24-25 April 1920 as a mandated state. [3]
  • Article 434 of the Treaty of Versailles stipulated that Germany was required to recognize the dispositions made concerning the territories of the former Ottoman Empire, "and to recognize the new States within their frontiers as there laid down." The text of the treaty is available online [4]
  • Article 60 of the Treaty of Neuilly with Bulgaria contained identical stipulations. The text of the treaty is available online [5]
  • Article 74 of the Treaty of Trianon with Hungary contained identical provisions. The text of the treaty is available online [6]
  • Article 90 of the Treaty of Saint-Germain-en-Laye with Austria contained the same stipulations. The text of the treaty is available online. [7]
    • The US State Department Digest of International Law (ed Whiteman) cites several landmark cases based upon Articles 30, 46, 60 and the Protocols of the Treaty of Lausanne. The editors said the cases illustrated that Palestine was a newly created state. Here is an example from page 652:

      "Article 46 of the Treaty of Lausanne provided that the Ottoman Public Debt "shall be distributed . . . between Turkey" and, among others, "the States newly created in territories in Asia which are detached from the Ottoman Empire under the present Treaty." (28 LNTS 11, 37.) The Ottoman Debt Arbitration is also reported in the Annual Digest, with the following "Note":"The arbitrator, after having adopted the principle that the costs have to be equally divided between the States parties to the arbitration, said: 'The difficulty arises here how one is to regard the Asiatic countries under the British and French mandates. Iraq is a Kingdom in regard to which Great Britain has undertaken responsibilities equivalent to those of a Mandatory Power. Under the British mandate, Palestine and Transjordan have each an entirely separate organisation. We are, therefore, in the presence of three States sufficiently separate to be considered as distinct Parties. See Marjorie M. Whiteman, Digest of International Law, vol. 1, US State Department (Washington, DC: U.S. Government Printing Office, 1963) pp 650–652

    • Arbitrator's fees and other costs of the Arbitration were charged to the Parties, and divided between them as follows: Three shares were charged to Iraq, Palestine and Transjordan, collectively as States placed under British Mandate (Etats placés sous mandat britannique). See section VII 1. on page 86 of 87, "Affaire de la Dette publique Ottomane (Bulgarie, Irak, Palestine, Transjordanie, Grèce, Italie et Turquie), 18 Avril 1925, VOLUME I pp. 529-614 [8]
  • In 1924 the Secretary of the Colonies for Great Britain said that Palestine was a Mandated State. He wrote

    Negotiations have been in progress for about a year for the conclusion of a treaty with King Hussein of the Hejaz, who is the person to whom the McMahon promises of 1915 (see paragraph 5 of the office memorandum) were given. A draft of the treaty was actually initialled in London in April 1923, but difficulties have since arisen, particularly in regard to Article 2 of the draft, which deals with our position in the Mandated States of Iraq, Palestine and Trans-Jordan. See CAB 24/165, formerly C.P. 121 (24), page 1 (.pdf file 2 of 7)[9]

  • Paul Weis said the relationships between Great Britain and the Protected States and Mandated States were governed by international law. He summed up the R v Ketter case, the Treaty of Lausanne, and "persons of international law" saying:

    "The only difference is that relations between a Protecting State (Mandatory) and a Protected State (Mandated Area) are themselves relations of international law. The status of Mandated and Trust Territories is regulated by international law." See Weis Paul, Nationality and statelessness in international law, Brill, 1979, ISBN: 9028603298, pages 21-24 (but especially pages 23 [10] and 24 [11]

  • Prof. Paul De Waart recited the terms of the Montevideo Convention regarding states as persons of law [12] and said "The Palestine Mandate has become an eventful example in respect of all the constituents of statehood". He devoted a separate subsection of the chapter to each constituent.[13]
  • Robert Eisenman explained that the British extended the concept of "State Domain" by defining a new category of "Public Lands" in the Palestine Order in Council of 1922 which was subject to control of the Palestine Government by virtue of treaty, convention, agreement, or succession, and all lands acquired for public benefit or otherwise. He observed in a footnote (17) that Article 60 of the Treaty of Lausanne vested all property and possessions of the Ottoman Empire in the governments of the relevant "successor states" and mentions that this was specifically applied in "Palestine" by the ordinances of 1925-6. See "Islamic law in Palestine and Israel: a history of the survival of Tanzimat and Sharī'a in the British Mandate and the Jewish state, Robert H. Eisenman, BRILL, 1978, ISBN 9004057307, page 139 [14]
  • Article 129 of the Treaty of Sèvres had contained provisions similar to Article 30 of the Treaty of Lausanne. The latter treaty said:

    Turkish subjects habitually resident in territory which in accordance with the provisions of the present Treaty is detached from Turkey will become ipso facto, in the conditions laid down by the local law, nationals of the State to which such territory is transferred.

  • In 1926 Norman Bentwich was the Attorney General of Palestine. He explained that the coming into force of Article 30 of the Treaty of Lausanne on August 26, 1924 allowed the three governments of Palestine, Syria, and Iraq to issue Nationality Acts. According to Bentwich, the guiding principle adopted was that Ottoman subjects habitually resident in the detached territories became ipso facto nationals of the state to which the territory had been transferred. Bentwich said the Nationality Laws transformed the de facto change into a change de jure. See Bentwich, Norman, 7 Brit. Y.B. Int'l L. 97 (1926) Nationality in Mandated Territories Detached from Turkey [15]
  • Prof. Mutaz Qafisheh wrote that Palestinian Nationality has its basis in international law. He said:

    In a broader international legal context, the “Nationality law… showed that the Palestinians formed a nation, and that Palestine was a State, though provisionally under guardianship”. The inclusion of Palestinian nationality in the text of the Palestine Mandate was the first step towards an international recognition of the Palestinian people as distinct from the Ottomans and other peoples. Indeed, Palestinian nationality, like any other nationality, constituted the legal bond which connected individuals to collectively form a people as an element of a state. -- See Mutaz Qafisheh, The International Law Foundations Of Palestinian Nationality, page 87 [16]

  • Palestine was a party to multilateral and bilateral international treaties with the US, UK, Egypt, Switzerland, Italy, Greece, France, and etc. which described the signatories as "contracting states". Those treaties were published in the League of Nations Treaty Series. John Quigley wrote that those treaties constituted evidence that Palestine had the capacity to engage in foreign relations. According to Quigley, the most indicative treaty was one between the mandatory power, Great Britain, and Palestine. He said "Had Britain and Palestine constituted a single sovereignty, there would have been no point to a treaty between them." See page 6 [17]
  • The US is a state party to the Montevideo Convention, which it still considers to be "in force". See page 450 of United States Department of State Treaties in Force, A List of Treaties and Other International Agreements of the United States in Force on January 1, 2010 [18]
    • The United States government formally recognized Mandate Palestine as a separate foreign state. In 1932 the Executive branch applied the most favored nation provisions of various commerce treaties to Palestine. In Kletter v Dulles the United States District Court, District of Colombia ruled that Palestine was a foreign state and that naturalization under Palestinian law constituted an act of expatriation under United States law:

      "The contention of the plaintiff that Palestine, while under the League of Nations Mandate, was not a foreign state within the meaning of the statute is wholly without merit. ... Furthermore, it is not for the judiciary, but for the political branches of the Government to determine that Palestine was a foreign state. This the Executive branch of the Government did in 1932 with respect to the operation of the most favored nation provision in treaties of commerce." See Elihu Lauterpacht, International Law Reports, Volume 20, Editors Elihu Lauterpacht, Hersch Lauterpacht, Cambridge UP, 1957, ISBN 0521463653, page 254. [19]

    • The US was a state party to the Treaty of Lausanne and the Anglo-American Palestine Mandate Convention of 1925 which provided that Ottoman subjects would become citizens of the States which acquired territory from the Ottoman Empire. The United States established a nationality quota for "Palestine (with Trans-Jordan) (British mandate)" See for example Proclamation #1872 - Limiting the Immigration of Aliens Into the United States on the Basis of National Origin, March 22, 1929 [20]
    • US immigration law, U.S. TITLE 8, CHAPTER 12, § 1101. Definitions says "(a) As used in this chapter— (14) The term “foreign state” includes outlying possessions of a foreign state, but self-governing dominions or territories under mandate or trusteeship shall be regarded as separate foreign states.[21]
    • In 1995 the State Department published a declassified Memorandum of Conversation between William Crawford Jr. and Mr. Shaul Bar-Haim from the Israeli Embassy (February 7, 1963) regarding Jerusalem. Bar-Haim said "The use of the term "Palestine" is historical fiction; it encourages the Palestine entity concept; its "revived usage enrages" individual Israelis". Crawford said "It is difficult to see how it "enrages" Israeli opinion. The practice is consistent with the fact that, in a de jure sense, Jerusalem was part of Palestine and has not since become part of any other sovereignty. That it was not a simple matter since there was a quota nationality, in regard to which U.S. legislation and regulation continue to employ the term Palestine. See Foreign Relations of the United States, 1961-1963, Vol. Xviii, Near East, United States. Dept. of State, G.P.O., 1995, ISBN 0160451590, page 341.
  • Article 240 of the Treaty of Sèvres, August 1920, said States in whose favour territory is detached from Turkey shall acquire without payment all property and possessions situated therein registered in the name of the Turkish Empire or of the Civil List. After the treaty was signed, the High Commissioner adopted a number of new laws to implement the terms of the treaty and Article 6 of the draft Mandate to govern Palestine's State Lands, i.e. the Mahlul Land Ordinance of October 1920, the Land Transfer Ordinance of September 1920, the Land Ordinance of October 1920, & etc. He appointed a Land Commission to ascertain the extent of Palestine's State Lands. See State lands and rural development in mandatory Palestine, 1920-1948, By Warwick P. N. Tyler, page 21: "The State Lands of Palestine" [22]; and A broken trust: Herbert Samuel, Zionism and the Palestinians 1920-1925, By Sahar Huneidi, pages 212-223
  • ARTICLE 60 of the Treaty of Lausanne said:

    The States in favour of which territory was or is detached from the Ottoman Empire after the Balkan wars or by the present Treaty shall acquire, without payment, all the property and possessions of the Ottoman Empire situated therein.

    • The US State Department Digest of International Law (ed Whiteman) says:

      The terms of the Treaty of Lausanne (28 LNTS 11) provided for the application of principles of state succession to the "A" Mandates. Thus, Norman Bentwich, in commenting on the case of Heirs of the Prince Mohamed Selim v. The Government of Palestine (reported in [ 1935- 1937] Ann. Dig. 123 (No. 39)), states: ". . . The Article [60] of the Treaty [of Lausanne] transferred to the Government of Palestine only those properties which were passed from the Civil List to the Ottoman State by the Irades. But there was nothing in the discussions on the Treaty of Lausanne which could upset the natural interpretation of the words of the Article, that the imperial decrees had transferred properties of Sultan Abdul Hamid to the Ottoman State and that these properties were ceded to the allied successor states." -- Marjorie M. Whiteman, Digest of International Law, vol. 1, US State Department (Washington, DC: U.S. Government Printing Office, 1963) pp 650–652

    • Lauterpacht discusses Heirs of Mohammed Selim v The Government of Palestine [23], which was heard on appeal as Amine Namika Sultan v. Attorney-General. [24] The Courts of Palestine cited "The Treaty of Peace (Turkey) Ordinance (Cap I46), Vol 2, Laws of Palestine", which said:

      Articles of the Treaty and the parts of the Articles of the Treaty set out in Part I of the Second Schedule of this Ordinance shall have full force and effect in Palestine.

      Article 60 of the Second Schedule reads as follows: The States in favour of which territory was or is detached from the Ottoman Empire after the Balkan wars or by the present Treaty shall acquire, without payment, all the property and possessions of the Ottoman Empire situated therein.[25]

    • Lauterpacht, Bentwich, and Whiteman report that the Attorney General claimed the property had been ceded to the Government of Palestine, and "In pursance of this Article the Court of Palestine declared the properties of the Sultan in Palestine to be State property." [26] Bentwich's article is available online: "State Succession and Act of State in the Palestine Courts", XXIII Brit. Yb. Int'l L. ( 1946) 330, 333. [27]
    • The Sultan's heirs filed a lawsuit claiming that state land acquired under the terms of the Treaty of Lausanne was actually their private property. Some of the land was located on the Transjordanian side of the Jordan valley. The case was handled through the appellate court and Supreme Court for Palestine between 1936 and 1946. See "State Lands Policy", in Michael R. Fischbach, "State, society, and land in Jordan", Brill, 2000, ISBN: 9004119124, page 116 (footnote 64) [28]
  • Williams, John Fischer, Lauterpacht, Hersh editors, International Law Reports, Volume 3, Cambridge University Press, 1929, ISBN: 0521463483, page 48 [29] cites a landmark case which illustrates the topic of STATES AS INTERNATIONAL PERSONS: Case No. 34.---Mandated 8tates---National Character of Inhabitants--- Foreign Subjects In Egypt.; Saikaly v. Saikaly 15 December 1925:

    Held: On the demurrer to the jurisdiction of the Mixed Courts, that former Ottoman territories placed under a Mandate have the character of regular States, and their inhabitants possess the nationality of those States in accordance with Article 30 of the Treaty of Lausanne. The plaintiff therefore has Palestinian nationality, and is a foreign subject in Egypt. [Reports: Gazette des Tribunaux - Mixtes, 1926, p. 119; 53 Clunet (1926), p.1069.]

  • In its Judgment No. 5, The Mavrommatis Palestine Concessions, the Permanent Court of International Justice decided that Palestine was responsible as the successor state for concessions granted by Ottoman authorities. See Marjorie M. Whiteman, Digest of International Law, vol. 1, US State Department (Washington, DC: U.S. Government Printing Office, 1963) pp 650–652
  • The Supreme Court of Palestine ruled in 1945 that Transjordan was a foreign state for the purposes of article 15 of the Palestine Citizenship Order. See States as international persons, International Law Reports, By H. Lauterpacht, Cambridge University Press, 1994, ISBN 0-521-46357-2, page 17 [30]
  • Lauterpacht wrote an advisory opinion for the Jewish Agency which explained that the British Government had adopted a decision that Palestine was a third independent state for the purposes of the most-favored-nation-clause. "International Law: General works of Hersch Lauterpacht", arranged and ed. by E. Lauterpacht, Cambridge University Press, 1978, ISBN:0521212073, page 100 [31]
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