by Hillel Fendel, Israel National News
January 27, 2008
Jacques Gauthier, a non-Jewish Canadian lawyer who spent 20 years researching the legal status of Jerusalem, has concluded: “Jerusalem belongs to the Jews, by international law.”
Gauthier has written a doctoral dissertation on the topic of Jerusalem and its legal history, based on international treaties and resolutions of the past 90 years. The dissertation runs some 1,300 pages, with 3,000 footnotes. Gauthier had to present his thesis to a world-famous Jewish historian and two leading international lawyers – the Jewish one of whom has represented the Palestinian Authority on numerous occasions. Gauthier’s main point, as summarized by Israpundit editor Ted Belman, is that a non-broken series of treaties and resolutions, as laid out by the San Remo Resolution, the League of Nations and the United Nations, gives the Jewish People title to the city of Jerusalem. The process began at San Remo, Italy, when the four Principal Allied Powers of World War I – Great Britain, France, Italy and Japan – agreed to create a Jewish national home in what is now the Land of Israel.
The relevant resolution reads as follows: “The High Contracting Parties agree to entrust… the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a Mandatory [authority that] will be responsible for putting into effect the [Balfour] declaration… in favour of the establishment in Palestine of a national home for the Jewish people.”
Gauthier notes that the San Remo treaty specifically notes that “nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine” – but says nothing about any “political” rights of the Arabs living there.
The San Remo Resolution also bases itself on Article 22 of the Covenant of the League of Nations, which declares that it is “a sacred trust of civilization” to provide for the well-being and development of colonies and territories whose inhabitants are “not yet able to stand by themselves under the strenuous conditions of the modern world.” Specifically, a resolution was formulated to create a Mandate to form a Jewish national home in Palestine.
League of Nations
The League of Nations’ resolution creating the Palestine Mandate, included the following significant clause: “Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.” No such recognition of Arab rights in Palestine was granted.
In 1945, the United Nations took over from the failed League of Nations – and assumed the latter’s obligations. Article 80 of the UN Charter states: “Nothing in this Chapter shall be construed, in or of itself, to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.”
UN Partition Plan
However, in 1947, the General Assembly of the UN passed Resolution 181, known as the Partition Plan. It violated the League of Nations’ Mandate for Palestine in that it granted political rights to the Arabs in western Palestine – yet, ironically, the Arabs worked to thwart the plan’s passage, while the Jews applauded it.
Resolution 181 also provided for a Special regime for Jerusalem, with borders delineated in all four directions: The then-extant municipality of Jerusalem plus the surrounding villages and towns up to Abu Dis in the east, Bethlehem in the south, Ein Karem and Motza in the west, and Shuafat in the north.
Referendum Scheduled for Jerusalem
The UN resolved that the City of Jerusalem shall be established as a separate entity under a special international regime and shall be administered by the United Nations. The regime was to come into effect by October 1948, and was to remain in force for a period of ten years, unless the UN’s Trusteeship Council decided otherwise. After the ten years, the residents of Jerusalem “shall be then free to express by means of a referendum their wishes as to possible modifications of regime of the City.”
The resolution never took effect, because Jordan controlled eastern Jerusalem after the 1948 War of Independence and did not follow its provisions.
After the Six Day War in 1967, Israel regained Jerusalem and other land west of Jordan. Gauthier notes that the UN Security Council then passed Resolution 242 authorizing Israel to remain in possession of all the land until it had “secure and recognized boundaries.” The resolution was notably silent on Jerusalem, and also referred to the “necessity for achieving a just settlement of the refugee problem,” with no distinction made between Jewish and Arab refugees.
Given Jerusalem’s strong Jewish majority, Gauthier concludes, Israel should be demanding that the long-delayed referendum on the city’s future be held as soon as possible. Not only should Israel be demanding that the referendum be held now, Jerusalem should be the first order of business. “Olmert is sloughing us off by saying [as he did before the Annapolis Conference two months ago], ‘Jerusalem is not on the table yet,'” Gauthier concludes. “He should demand that the referendum take place before the balance of the land is negotiated. If the Arabs won’t agree to the referendum, there is nothing to talk ab