The Legal Boundaries of Israel in International Law: Jurist Commentary and
Discussion, April-October, 2002
Anthony D'Amato, Leighton Professor of Law
Northwestern University School of Law
This is an essay on the legal boundaries of the State of Israel. It is based entirely on my
understanding of international law. I have no first-hand experience of the Middle East,
and I speak entirely from law books and the documentary record. I am not a Jew. I am
not an Arab. In trying to assess my internal biases, I must disclose that I feel a huge debt
to the cultural and intellectual enrichment flowing to me from the contributions of Jews:
in Broadway musicals (my especial passion), movies, theatre, law, and the philosophy of
science. I have also been a steadfast supporter of the State of Israel as it was established,
and under the boundaries it was given, on May 15, 1948.
1. Palestine was a Mandate under Article 22 of the League of Nations Covenant; in our
parlance, a trust. The beneficiaries were the people residing in Palestine. The Mandatory
Power (trustee) was Great Britain. Palestine was defined in Article 22 as one of those
Mandates that was “provisionally” recognized as an independent nation but nevertheless
needed on its road to statehood the “administrative advice and assistance” of a
Mandatory Power.
2. The League of Nations was dissolved in 1946. Its duties regarding Mandates were
assumed by the new United Nations that had been established in 1945. The Palestinian
Mandate, of course, remained intact, just as a trust remains intact even though the
supervising judge or even the trustee may change.
3. Great Britain informed the UN of its intention to relinquish its trusteeship. By then a
great deal of common law regarding Mandates had developed through the years of the
League of Nations. Under that law, Great Britain could not simply abandon its
responsibilities to the people of Palestine. It could only relinquish its trusteeship
responsibilities if it left the people of Palestine in a viable self-governing position.
4. In consultation with the Trusteeship Council of the United Nations, Great Britain
argued that it could not leave Palestine as a unitary self-governing state, but it could
relinquish its trusteeship if the territory were divided into two states, a Jewish State and
an Arab State. The question then turned to the allocation of Palestinian land between the
two new entities. Great Britain argued that the division should not reflect the actual
numbers of Jews and Palestinians living in the territory because the Jews, as an
ethnic/religious entity, had a right to invite the surviving victims of the Holocaust to
come and live in the new Jewish State. As a result, the proposed “partition plan” would
give substantially more territory to the Jewish State than was warranted by the number
of Jews living in Palestine. (I might add that I have always believed that the British
decision was both morally and legally justified.)
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5. On November 29, 1947, the General Assembly adopted the key "partition" resolution,
Resolution 181, ratifying the British proposals. It also provided for an independent
international mixed status for the city of Jerusalem. In my opinion, this Resolution
constitutes the first, last, and only legally authorized demarkation of the Israeli-Palestine
borders. It was legally authoritative not because it took the form of a UN Resolution, but
solely because the UN Resolution itself served as a ratification of the British proposal to
divide the Mandate and leave its governance to the people. In other words, the alpha and
omega of the legal power resided in Great Britain as the trustee and not in the United
Nations. As trustee, it had the power to partition the territory if and only if that was the
best way to provide for its future self-government. The General Assembly did not derive
its legal powers directly from the Charter of the UN, but rather as surrogate for the
League of Nations as it devolved its powers of mandate supervision to the UN and,
through the UN, to the General Assembly itself. Legal title to the land was not
conferrred by Resolution 181 alone but rather by Great Britain's acceptance of the terms
of Resolution 181. The State of Israel owes its entire legal existence to the proper
exercise by Great Britain of its League of Nations' Mandatory Power over the territory
of Palestine. It owes nothing to the United Nations and, by the same token, cannot claim
any additional rights from the United Nations. Instead, as soon as Resolution 181 was
passed (and of course Great Britain voted in its favor), the legal borders between Israel
and Palestine were forever fixed. Those borders henceforth could only be changed by
one of two processes: first, explicit agreement between Israel and the authorized
representatives of Palestine, and second, in the few cases of limited disputed areas where
the verbal description contained in Resolution 181 was ambiguous in terms of existing
maps or surveys, by international arbitration. The Security Council had and has no
power to change international borders.
6. Although Israel proclaimed itself as a state within six months of Resolution 181, the
Palestinians - for convoluted internal reasons plus the land-grabbing ambitions of
surrounding Arab states - did not seriously entertain the idea of a State of Palestine for
almost another forty years. In any event, as is well known, neighboring Arab states,
proclaiming that the United Nations had sold out the Palestinians, attacked Israel. To the
world’s astonishment, Israel not only prevailed in the war, but beat back the Arab
invaders and in the process more than doubled the previously partitioned territory of
Israel. Israel then ousted the Palestinians who were living in the conquered area, and
they have ever since been remitted to conditions of squalor in refugee camps that dot the
Middle East.
7. The six-day war of 1967 further increased the size of Israel at the expense of the
Palestinians. In the direct aftermath of the war, the Security Council of the United
Nations, exercising its Chapter 7 powers under the UN Charter, passed Resolution 242
calling for the withdrawal of Israeli forces “from territories of recent conflict” and
“achieving a just settlement of the refugee problem.” Israel and the U.S. interpreted the
Resolution’s call for "withdrawal from territories," and not "the" territories, as a less
than complete withdrawal because the word “the” was not mentioned. The mild joke in
circulation at the time was that anyone opposed to the U.S.-Israeli interpretation was
"anti-semantic". Israel took the position that it was therefore not legally required to
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withdraw from the West Bank and the Gaza Strip that it had just conquered, and indeed
that it could erect Israeli settlements in those territories.
8. But semantics aside, in my view the Security Council simply does not have the power
to take land from A and give it to B, irrespective of its undoubted legal power in the
event of a threat or breach of the peace to restore international peace and security. The
sanctity of international borders is a principle of international law that antedates the
Charter of the United Nations; in fact it goes back five thousand years. No smaller
nation would have supported the UN Charter at the San Francisco Conference in 1945 if
the draft Charter had given to the five permanent menbers of the Security Council - the
United States, Great Britain, France, Soviet Union, and China - the legal power to
change international frontiers. After all, the five permanent members at the time had
been wartime allies, and in concert they could reshape the world at will if they had been
given such an unprecedented power. Morever, there is nothing in the Charter of the
United Nations that even remotely hints of a power or entitlement in the Security
Council to change international borders. Even Resolution 242 only calls for a
withdrawal of forces, and makes no mention of a permanent change in boundaries. As
far as the Israeli settlements are concerned, they are clearly illegal; an occupying power
has no right to de facto annexation of portions of the territory by population transfers.
9. Overshadowing the arguments in Paragraph 8 above is the undeniable fact that the
Kellogg-Briand Peace Pact of 1928, as definitively glossed by the International Tribunal
at Nuremberg in 1948, has abolished forever the idea of acquisition of territory by
military conquest. No matter who was the aggressor, international borders cannot change
by the process of war. Resort to war is itself illegal, and while self-defense is of course
legal, the self-defense cannot go so far as to constitute a new war of aggression all its
own. And if it does, the land taken may at best be temporarily occupied, but cannot be
annexed. Thus after all the wars, the bloodshed, aggressions and counter-aggressions,
acts of terror, reprisals, and attendant UN resolutions, nothing has changed the legal
situation as it existed after Resolution 181 in 1947. The legal boundaries of Israel and
Palestine remain today exactly as they were delimited in Resolution 181.
COMMENT: I find it remarkable that the recent Saudi proposal - to normalize relations
with Israel in return for its withdrawal to pre-1967 boundaries - has not been accepted
with enthusiasm by the Israeli government. After all, it would legally transfer to Israel if my preceding analysis of the background international law is correct - more than
double the land allocated by the Partition Resolution of 1947. It would also bring peace
to these troubled historic lands. But it appears that Prime Minister Sharon’s mood
regarding the Palestinians is not “what have you done for me?” but rather “what have
you done for me lately?” His apparent inability to take a longer-term moral and legal
perspective on the situation is deeply troubling. I fear for the continued viability of the
Israelis, entrapped as they are as a sliver of territory in a vast Islamic ocean with their
enemies’ access to “suitcase” nuclear bombs increasing daily. But apart from what
Sharon may be thinking, it seems to me that his strategic goals are inconsistent. He of
course wants, and is absolutely entitled to have, the physical security of the Israeli
people. But he also wants their ethnic/religious identity to be preserved, irrespective of
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their individual marriage choices. These two goals clash with each other when the
question is raised of the right of return of the Palestinian refugees. If Palestine were to
become a State, and if Arafat would have his way (as opposed to the Islamic extremists
in Palestine), the refugees would come back in a tidal wave. This would, in Sharon’s
view, endanger Israeli identity and uniqueness. So it seems that Sharon must be
committed both to avoiding peace and avoiding a settlement that would allow the
Palestinians to return. Rhetoric aside, what he appears to want, unfortunately, is the
peace process and not peace itself.
Anthony D'Amato is the Leighton Professor of Law at Northwestern University School of
Law, where he teaches courses in international law, international human rights, analytic
jurisprudence, and justice. Professor D'Amato was the first American lawyer to argue
(and win) a case before the European Court of Human Rights in Strasbourg, and he has
litigated a number of human rights cases around the world. He is the author of over 20
books and over 110 articles.
April 8, 2002
What are your views on the issues raised by this JURIST column?


Wednesday July 17, 2002 at 11:30 pm
Another legal factor which must be taken into account is the principle of
territorial integrity. In the past nations had unlimited freedom to cede their own
territory. However UN General Assembly Resolution 1514, passed 14 December
1960, called for the territorial integrity of all states to be maintained, and since
that date the only changes in international boundaries have involved colonial or
manditory powers ceding land to independent states. It is doubtful that there is
any basis in the current applications of international law for any Israeli
annexations in the west bank or gaza at the expense of Palestine in a formal
peace treaty. The treaty would have to acknowledge 1949 armistice line as being
the Israeli-Palestinian border (except for the corpus seperatum in Jerusalem) and
only minor changes in the frontier could be made by mutual consent after the
formal treaty was signed. Resolutions 242 and 338 call for "secure and
recognized boundaries". there is nothing in either of these resolutions calling for
annexations or for boundary shifts, although they do imply that Israel can
continue to occupy some land outside her borders in order to maintain her safety
and security. None of the other Arab-Israeli peace treaties (with Egypt, Jordan
and the still-unratified treaty with Lebanon) involve any annexations or the
ceding of territory.
Mike Anderson
Toronto, Canada
Thursday July 18, 2002 at 3:31 am
Prof. D'Amato, I'm not impressed by your "magic trick" of comparing the
German occupation of France to Israel's "occupation" of the disputed territories
because the former ("in one meaning of the term") was a "lawful military
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occupation" whereas the latter is such under an entirely different meaning of the
term.
Omar, perhaps rather than propagandizing here you should do some homework.
For example, compare the standard of living, health conditions, agricultural
output, literacy rate and academia and political freedoms in the territories before
and after 1967 (hint: all of these improved under the Israeli administration).
Mr. Mobarek, I think you misunderstood Abba Eban's comment which you
emphasized. It was meant to underscore that recognition of Israel was not to be
dependent upon the creation of another (Arab) State. That two states were not
required.
Does this embrace of one part of UNGAR 181 imply that the entirety of it was
still relevant? This goes back to our "parsing" discussion, but I believe that in the
context of his comments Eban was not suggesting what you are saying and that
quite to the contrary, in the aftermath of the war caused by the violent Arab
rejection of the proposed partition, that Eban understood (already 50 years ago)
that the partition was history (DOA).
If you prefer, Eban was not so much invoking 181 as the original intent behind it.
Leeron Kopelman
Ann Arbor, MI, USA

Thursday July 18, 2002 at 3:37 am
I agree with Mr Mobarek's general suggestions. The borders of the former
mandate have to be respected. I also accept the general parametres that he sets to
whatever happens within those borders. I take these to be: either a Jewish-Arab
state or two states, Jewish and Arab.
I would like to point out, however, that Israel is a Jewish-Arab state, so UNGAR
181 doesn't apply. It absorbs as many Arabs as it can without putting its own
existence at risk. This is in line with the principle of self-preservation. Israel
doesn't absorb elements which it is only bound to expel later, which is what
Jordan did.
The problem with the borders is that the borders of the mandate have been
violated by Jordan and Egypt. The current suggestions put forward build on these
illegal conquests. Whatever UN resolutions are invoked, that is the setting of the
current Palestinian problem. The Gaza Strip and the West Bank are acquisitions
of territory by aggression. Since certain solutions have been rejected asserting
that this or that would reward occupation, the same thing should be said of the
Palestinian independence movement. The envisioned Palestinian state would also
have its territory ultimately because of acquisition of territory by use of force.
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As to the question of recognition, as soon as Israel had been recognized by other
states, it was a state regardless of UNGAR 181. Its existence cannot depend on
UNGAR 181. That would amount to conditional recognition, which isn't
approved of in international law. The "provisional" Palestinian state would have
had the same problem.
As to UNGAR 1514, it is interesting that is brought up now, and not in
connection with the cession of Palestine by Jordan. Anyway, that is a General
Assembly resolution, which, as has been pointed out by Professor D'Amato,
doesn't make internation legislation. An UNGAR should give way whenever
"peace and security" are threatened in the sense of the UN Charter. That is why
the UN exists. As to UNSCR 242, "secure and recognized boundaries" might
have been built on the 1949 armistice line as long as the problem was Jordanian
and Egyptian aggression. Now the aggression doesn't come from Jordan and
Egypt but from Palestine itself.
As to the Kosovo analogy, the fundamental difference is that Israel answers for
the security of Palestine, whereas the UN/NATO troops answer for the security
of Kosovo. If the Yugoslav government can still change the Kosovo border with
Macedonia, which means Kosovo is Yugoslav territory, the same applies a
fortiorito Israel's sovereignty over Palestine. If the Palestinians don't know where
they are now, can we trust them to know where they are going?
Jari Nousiainen
Finland

Thursday July 18, 2002 at 4:18 am
The assertion of improved conditions in the territories is a matter best judged by
the perceptions of the Palestinians themselves.
The construction of schools and hospitals is mentioned simply because recent
events lack any essence of a humanitarian concern.
The tank incursions and air bombings are seen by most as acts of reprisal,
camouflaged as an attempt to discover and punish only the people who supplied
the bombs.
If you regard the written word as propaganda, perhaps you prefer video
recordings made by independant newsmen (the few who were allowed in, and
not killed).
This venue, if it is to arrive at a fair verdict on the border dispute, must allow
assertion of factual statements, at least those subject to proof, as fair evidence.
Omar Rumi
6
Malaysia

Thursday July 18, 2002 at 5:47 am
Mr. Kopelman, I must apologise for not properly addressing my last comment
you, sent in response to your protest regarding my "propagandising", and not
properly doing "homework".
The point made by Mike Anderson deserves restating:
"While there was no legal form of a state on the land, the occupants of the land
had, and continue to have, rights to it. At the very least, one should reasonably
assert that this new expanded Israel should include as citizens all the Palestinian
Arabs that have legitimate claim of residency in the Palestine mandate. It would
also be reasonable to assume that, if a democratically elected government takes
control of this new state, Israel would become Palestine by virtue of the
Palestinian Arab majority that would ensue from such territorial expansion.
If the Palestinians should agree that Israel is entitled to all disputed land west of
the Jordan, on condition that prior claims be honored, and that full citizenship
status be granted in the expanded new state, along with equal protection under
Israeli law, would Israel find that agreeable? If not, then all discussion of legal
borders must proceed with the understanding that Israel will oppose any
reasonable settlement terms, and the world must then prepare to deal with the
consequences of a decision made without the accord of Israel.
The Palestinians will resist reduced status in a new state, and the Israeli's oppose
voting rights for the Palestinians. Thus the conflict continues, and it becomes
doubtful that a fair resolution of the legal border issue will contribute to a
peaceful settlement.
Omar Rumi
Malaysia



Thursday July 18, 2002 at 8:00 am
I did not make the statement that is attributed to me above. It was made by Mr.
Mobarak.
Mike Anderson
Toronto, Canada
Thursday July 18, 2002 at 10:13 am
Yes, it is my mistake, and I apologise for it.
Omar Rumi
Malaysia
Thursday July 18, 2002 at 2:00 pm
Mr. Kopelman, I understand your point about Mr. Eban’s statement. My goal
7
was to point out that he understood that the resolution calls for the creation of
two states. My goal was also to highlight that the creation of the state of Israel,
the very definition that was accepted by the UN, was based on borders defined in
UN GAR 181. Subsequent annexation of land based on the 1949 armistice
expanded this state by force.
There has been much talk about the Arab aggression of 1948. Like the war in
1967, the historical facts do not support the characterization that the war was
pure a byproduct of the assault by the Arab armies. If one looks at the action
prior to the start of the war, one would get some sense of the progression of
events. The Haganah, the predecessor to the IDF, had occupied most major cities
in the Arab ‘state’ of UN GAR 181 in the months preceding the war. Arab
villages were attacked, their residents ‘encouraged’ to leave, and the villages
itselve burnt to the ground to discourage any prospects of return. Etzel and Lehi,
who were more radicalized groups of Jewish resistance in the Palestine mandate,
had gone much further and committed documented atrocities against unarmed
Palestinian Arab civilians (e.g. incidents like the Deir Yassin massacre).
Palestinian Arabs left their land en masse because of fear of what would happen
to them at the hands of the Jewish forces.
There is little doubt that the Arabs did indeed have a substantial hand in starting
the war in 1948. It is fairly clear and evident that anti-Jewish rhetoric coming
from Cairo, Amman, Damascus, Beirut, and Baghdad was very strong. The flood
of Palestinian refugees into the neighboring countries brought with it stories of
the atrocities that they had to endure, which only helped to inflame the situation
even further. It is also without question that Arab armies did indeed initiate the
war and attacked Israel. However, it would be a mistake to characterize Israel as
an innocent victim of aggression or that Israel had any intentions of honoring UN
GAR 181 irrespective of the Arab attack.
Mr. Nousiainen, I am glad that we finally found some common grounds to agree
on. However, I am troubled by the exception that you noted. I am not sure what
you mean by ”… without putting its own existence at risk”. I presume that ‘its’
here refers to a Jewish-Arab state. How could its own citizens threaten this
state’s existence? Citizens can be a source of destabilization for governments,
but not a threat to the existence of a state. I am afraid that any criteria established
to govern the rights and status of a particular segment of a population will
invariably become discriminatory. The ‘self’ in self-preservation has to refer to a
Jewish-Arab state and not just a Jewish state. If there were minority elements in
the population that elects to destabilize a democratically elected and pluralistic
government, they would be dealt with in accordance with the law of the land.
As for the statement regarding the creation of a Palestinian state by force, I can
only repeat something that I read some time ago. The only difference between a
freedom fighter and a terrorist is who is in power at the time. There is no doubt
or question that Palestinian attacks on Israeli civilians are deplorable and
8
barbaric, no more or less so than the attacks of Etzel and Lehi on the British and
Palestinian Arabs before the Israeli independence. Just as Etzel and Lehi’s
ideology represented the minority view within the Jewish community of their
time, the ideology of suicide bombers represents the minority view of the
Palestinian population now. However, both populations grudgingly accepted the
barbaric tactics of these more radical groups out of desperation. Prime Minister
David Ben-Gurion forced Etzel and Lehi to disarm and arrested many of their
ranks after Israeli independence. I would venture to say that the Palestinians
would do the same if they have something dear to them to loose. Right now, they
have nothing to loose.
Sameh Mobarek
Chicago, Illinois, USA

Friday July 19, 2002 at 12:50 am
Prior to the outbreak of violence in September 2000, 98% of the Arab population
of the disputed territories lived under the rule of the Palestinian Authority. At
Camp David / Taba, only the consent of Arafat separated the Palestinian Arab
population from an Arab state on 100% of Gaza, a contiguous 95% of Jordan's
former "West Bank" (including the Arab neighborhoods of eastern Jerusalem),
another 2% of compensatory land, and a $30 Billion fund for refugees (who
would have the so-called "right of return" to the nascent Arab state). Do you
really think they had nothing to lose?
Your comment that "the ideology of suicide bombers represents the minority
view of the Palestinian population" flies in the face of numerous polls that
indicate that up to 85% of the population supports even this bombing of innocent
civilians (and that a slim majority views the current violence as a method by
which to destroy Israel).
It is disingenuous to compare such attacks to the actions of Etzel or the Stern
Gang in the 1940s. For example, the common example of the bombing of the
King David Hotel neglects to mention that this building served as the British
Military HQ and that a warning note was delivered (but not heeded) precisely
because the building (and its files) were the target, not the people, not even the
soldiers and officers.
Yet the historic survey would not be complete without also mentioning the Arab
"riots" and "disturbances" of 1929 and 1936-1939 -- which brought forth the
murder of Jewish civilians and car bombs at markets.
I know Mr. Mobarek is only repeating the mantra from the 1980s regarding
"freedom fighters" and "terrorists", but I think it is one of the silliest sayings:
Freedom Fighting describes an objective, an end.
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Terrorism describes a method, a means.
Some Freedom Fighters chose to utilize terrorism, others do not. Yet not all
terrorists are freedom fighters. According to Walter Laqueur, "A comparison of
terrorist activities over the last century shows, beyond any shadow of a doubt,
that violent protest movements do not appear where despotism is worst but, on
the contrary, in permissive democratic societies or ineffective authoritarian
regimes." I hope everyone here is familiar with the "Hama Rules", an example of
a dictator (Assad I of Syria) ruthlessly attacking and wiping out most of a city
(20,000 - 60,000 killed according to an article in the NY Times) for tolerating
opposition. Acts of terrorism also fail to garner the impact they seek when the
state controlled press censors the story in the absence of a free press.
So coming back to Aba Eban, I will agree with you that he understood that 181
spoke of 2 states. But what we're trying to ascertain is whether he, or the UN and
world at large, continued to consider the proposed partition as relevant in the
aftermath of the war and the signed armistice agreements. Surely by 1967
UNGAR was no longer on the table, as can be seen in UNSCR 242's failure to
mention a two-state solution and failure (like UNGAR 194) to require an Israeli
withdrawal to the borders proposed by UNGAR 181. (Recall also that 242 is
relevant because it served as the basis of Israel's peace treaties with Egypt and
Jordan and also the Oslo Declarations of Principles between Israel and the
Palestinian Authority.)
Mr. Rumi, the figures which I alluded to provide the yardstick you were using.
Except that they don't support your argument, which is why you now say we
shouldn't look at figures but should listen to what (some) members of the
populace say. Nor are you clear on why your talking points are necessary in a
discussion about the legal aspects of the conflict. If you really think that these are
necessary to this discussion, then at least first do your homework rather than
casting aspersions.
As for your point (that Israel doesn't want to jeopardize its Jewish character by
annexing land that has a large Arab population), it is nothing new. It is exactly
why Israel is seeking a two-state solution. Now, if a responsible party could be
found amongst the Palestinian Arabs to also seek this compromise... I'm sure a
deal could be worked out by the politicians and diplomats even as the academics
continue to discuss and rehash history.
Leeron Kopelman
Ann Arbor, MI, USA

Friday July 19, 2002 at 1:06 am
Earlier in this debate I asked Mr. Kopelman whether he had read the exchanges
from the very beginning, as it seemed to me that he came in late and rather
unaware of what had gone before. He then posted a comment that he was aware
10
of the earlier remarks. So I won't ask him again. Instead, I think he may be taking
a polemical approach here, which is to repeat arguments that have already been
answered on the theory that if logic doesn't work, repetition might dull the
reader's mind. To say, for example, that "surely by 1967 UNGAR was no longer
on the table," misses the point of the previous exchanges which was that
UNGAR 181's partition solution is the only legal item on that table. Whether it
was unnoticed afterward, or buried in a series of military conquests, or a minor
adjunct to Israel's peace treaty to Jordan, or whatever else Mr. Kopelman can
come up with, he is not saying anything that would legally affect the legaljuridical status of UNGAR 181. Mr. Kopelman is at his best when he supplies
new arguments/information, but apparently he doesn't know or doesn't want to
know anything about the topic of this symposium, the "legal boundary of Israel
under international law."

Anthony D\'Amato
Northwestern Law School
Illinois, USA
Friday July 19, 2002 at 5:47 am
Mr Mobarek, I think we can agree on some of the parametres, but in order to
determine how far our agreement goes, maybe you would like to explain whether
you are for the two-state or one-state solution within the former mandate borders
(where our agreement may stop).
In theory, the one-state solution would be the preferable one, but I think we are
too accustomed to approaching the problem from the Israeli side. Are the Arabs
ready for an Arab-Israeli state? Sure, if that can get them the "right of return".
But does it go both ways? How ready are the Palestinians to allow Jews on the
Palestinian-controlled territory?
If you were to say at this point, which is closer to the Arab-Jewish state - Israel
(proper) or the West-Bank/Gaza - what would you answer? There are Arabs with
full citizenship in Israel proper. However, there are no Jews in the Palestiniancontrolled territory. Those Jews who are there, are called "illegal settlers", which
is a misnomer, if it is indeed true that the settlements are built on vacant land.
You have mentioned ethnic cleansing before. Considering the Palestinian policy
towards the Jews, you have to admit that the Palestinians are the ones who are
exercising ethnic cleansing. The Jews can't enter the Palestinian-controlled
territory except in the capacity of combatants, which isn't Israel's fault. If Israel
were to sway the magic wand and allow the Palestinians to settle across the green
line en masse, the prediction is that even that part of the Israeli territory would be
ethnically cleansed. During the Jordanian occupation up to 1967, the West Bank
was verboten to the Jews. Just don't get confused by the rhetoric. There are Arabs
in Israel, though they are not called Palestinians, just to show how badly Israel
treats the Palestinians.
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As to the question how the state's own citizens could put the existence of the
state at risk, just ask the Jordanians. Just because Jordan can't be accused of
ethnic cleansing doesn't mean that Jordan didn't create the refugee problem that
is now blamed on Israel. In the face of such myopia, it seems impossible to make
any long-term plans that would satisfy the Palestinians.
So the one-state model (i.e. the post-Oslo arrangement) can only be a transitory
phase, not more. On the other hand, if you agree on this, then you have to admit
that the border between Palestine and Israel proper is an internal matter, as it is.
The borders within the former mandate are not fixed, so the uti possidetis doesn't
apply within it.
Ironically, what confuses the creation of the Palestinian state is the fact that it has
already been recognized by some states. I think we would have to qualify this as
a premature recognition, which has been regarded as a violation of the
prohibition of non-intervention, in this case of non-intervention in the internal
matters of Israel.
Contrary to what has been suggested, it seems likely that if, in the future, there
are international borders between Israel and Palestine, they will not coincide with
anything any of us has suggested. It will be a political solution.
After the second intifada we should at least understand that the
"secure...boundaries" mentioned in UNSCR 242 and 338 can't possibly coincide
with the partition plan of UNGAR 181 - and probably not even with the
armistice line of 1949.
Jari Nousiainen
Finland

Friday July 19, 2002 at 11:10 am
Mr. Kopelman, your request for specifics is reasonable. Although I have no
arcane sources of knowledge at my disposal, some information regarding the
present condition of the infrastructure of the occupied territory is readily
available. Pleae object to any statement of fact or opinion that is erroneous or
biased.
The list of Israeli de-construction is easier of access than that of construction.
Others here can provide additional information to give balance.
For a start: the new airport in Palestine was completely destroyed by Israeli
forces, apparently without provocation of any kind. The building devoted to
Palestinian cultural affairs was trashed and rendered unuseable. Any number of
homes and other private structures have been destroyed by shellfire and air
bombs. The headquarters building of the PLO containing the offices of the
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chairman destroyed, as were a number of other public buildings.
The major construction activity in the occupied territory seems primarily
confined to the settlements, and these are built for Israeli's upon land that
Palestinians claim to own with ancient title.
The location of schools, hospitals and other facilities built in the occupied
territoties with Israeli funds and labour continues to be of interest. Would you
kindly supply the references you alluded to? That would be helpful.
As to the relevance of "talking points," a proper determination of legal borders
should include the motives of the parties to the dispute, their moral and ethical
behaviour, along with any attempt to conceal facts and goals. In the argument for
fixing borders along international legal lines, the consequences of the decision
are also germane, which further widens the scope of debate.
All testimony admissible in a court of equity appears relevant. A final ruling that
is fair devolves directly on a determination of fitness for the prevailing party. To
find otherwise is to channel the law through a narrow funnel fashioned aforehand
for the purpose. The law knows no such constraint.
Omar Rumi
Malaysia

Friday July 19, 2002 at 2:09 pm
Mr. Rumi, I don't find your new argument any more convincing than your prior
argument and really don't think I need to respond to it (if anyone else disagrees,
I'd be happy to explore those tangents).
Prof. D'Amato: My point was simply that, despite your argument that UNGAR
181 should have been the only document on the table, I don't believe it was
seriously considered during the discussion of UNSCR 242. Since 1967, it is 242,
not 181, that has been the basis of signed agreements between sovereign nations
(Israel, Egypt and Jordan) and which serves as the foundation of the Oslo peace
process (as agreed to by Israel and the PA in the Declaration of Principles).
Perhaps the PA erred in signing this, perhaps they should not have. But they did,
and that is the reality of the situation (both political and legal) today.
You yourself stated things could be "changed by one of two processes: first,
explicit agreement between Israel and the authorized representatives of
Palestine." Don't the agreements between Israel and the PA qualify, even if they
only established the framework and not final borders?
Leeron Kopelman
Ann Arbor, MI, USA
13

Friday July 19, 2002 at 6:35 pm
Mr. Kopelman, rather than address all the statements you made and add to the
series of negative comments generated by your last remarks, I will respond to
one specific point you raised. In mentioning Etzel and Lehi, I was not just
referring to the King David Hotel bombing. I do not really need to. The list of the
groups’ activities is extensive and proves my point well enough. In addition, as
the annals of history record, even officers of the Haganah referred to the groups
as terrorists so I really do not feel the need for us to debate the point.
Mr. Nousiainen, I still believe that UN GAR 181, from a legal point-of-view , is
valid and applicable. I am willing to set aside this belief to debate the
applicability and practicality of the one-state solution, but I think that, as we
work through its implications, we will find that the two-state solution is also
valid from a practical point-of-view. If my memory serves me correctly, the
British went through the same debate in the late 1930s and 1940s. The Peel
Commission recommended the partitioning of the Palestine mandate as the only
option to achieve the conflicting goals of the Balfour Declaration and the
principle of self-determination upon which the mandate was based. The
Woodhead Commission later reversed this recommendation. Then the British
finally reached the conclusion that the mandate was not workable.
The difficulty of the one-state solution is manifest in the level of animosity
between the two peoples. For this solution to work, Israelis would have to accept
the fact that they will be a minority in this new state. It would also mean that
Palestinians, who would invariably be in control of the government by virtue of
their majority, would have to extend the equal the rights and justice principles to
Israelis. In all fairness, I cannot see a Palestinian government doing that. The
Palestinians have been living under the yoke of Israeli occupation for 35 years.
There are generations of new Palestinians born to the virtual ghettos of refugee
camps and rundown Bantustan-like areas. They grew up without adequate
education or healthcare facilities, and were raised on the single-minded hatred
that their parents felt for Israelis and had these feelings propagated by their own
standard of living. Their leaders were the products of 1948, 1967, and decades of
armed resistance against Israel. In addition, if one takes the action of other Arab
governments in dealing with opposition and dissention within their ranks or by
minority groups as an indication of the behavior of a Palestinian government, one
would have grave reservations that any Palestinian government can become
democratic in the commonly accepted sense of the word.
At the same time, I cannot see an Israeli-controlled government working out
either. Israelis have their own history of struggle and sacrifice. Against the odds,
Israelis were able to establish their society and base it on democratic principles.
But as a result, successive Israeli governments have found it justifiable to apply
Machiavellian principles when dealing with others that they regard as enemies.
Time and time again, Israeli governments (mostly the Executive Branch)
circumvented even provisions of Israeli Basic Law to protect the rights and
14
liberties of Israelis to the maximum extent possible at the expense of the rights
and liberties of Palestinians, as if the former is somehow superior to the latter. As
Mr. Rumi pointed out, the bill that was recently introduced for its first reading (I
know it is not law yet, but I do not recall how far it is in the review process) in
the Knesset to make all state land ‘Jews-only’ land is another indication of some
of the bias in another branch of the government. The Israeli High Court tries to
balance these tendencies by striking down clearly unconstitutional laws and
prohibiting government practices that are clearly counter to the spirit of both
Israeli and International Law. In addition, there are some members of the
Knesset that try to bring balance to some of the extreme views expressed by
other members of the legislative body. But these moderates in the Knesset and
the High Court are not part of the operations of Shin Bet or the IDF. They are not
living among settlers in the West Bank and Gaza. They are not walking among
villagers in remote areas of Israel. There are, and continues to be, strong
indications that some of the practices outlawed by the High Court still continue.
There are also indications that there are other practices that, if brought before the
High Court, would be found to be unconstitutional. The view and attitude of the
Israeli government will be difficult to change until the current generation of
politicians gives way to newer generations that have not experienced the events
of the past 50 years.
As for the other points you mentioned, I would like to make the following quick
comments:
” Those Jews who are there, are called "illegal settlers", which is a misnomer, if
it is indeed true that the settlements are built on vacant land.”. For the sake of
clarity when we are discussing issues related to settlements, you will have to
include not only the settlements themselves but also the infrastructure (roads,
tunnels, bridges, raw water system and usage, etc) built to support these
settlements. First, it would be difficult to justify settlements on occupied land
under international law, whether or not they are vacant. Second, many of the
settlements were built on land, in whole or in part, confiscated from Palestinians
owners. Third, the very nature of settlements suggests the possibility of
annexation of occupied land, which, of course, is not acceptable under
international law unless it is consented to by all parties.
” The Jews can't enter the Palestinian-controlled territory except in the capacity
of combatants, which isn't Israel's fault.”. This is not an intellectually fair
statement. During the era of Apartheid, I am sure that a white South African
citizen could not enter a Bantustan unless he was riding in an APC. Until
recently, a Protestant would have to have a death wish to take a stroll in west
Belfast. This has nothing to do with ‘ethnic cleansing’.
” As to the question how the state's own citizens could put the existence of the
state at risk, just ask the Jordanians”. Palestinians were not Jordanians, and
Jordan was not a Palestinian state. The Palestinians tried to takeover the
15
government and not threaten the existence of the state. Had they succeeded,
Jordan’s character and government would have changed, but it would have
continued to exist as a state.
” On the other hand, if you agree on this, then you have to admit that the border
between Palestine and Israel proper is an internal matter, as it is”. Either we
agree that Israel would exist as an Arab-Jewish state or we do not. One cannot
assert that a two-state model should exist, but the model should be governed by
the rules of a one-state model. One can only look at how well this logic played
out between the Serbs and the Kosovars before UN/NATO intervention.
Sameh Mobarek
Chicago, Illinois, USA

Friday July 19, 2002 at 11:41 pm
Mr. Kopelman,your desire to forego rebuttal is duly noted. As an established
principle, unrebutted evidence stands as just that.It cannot later be argued that no
opportunity to rebut was available.
It was you who stated that Israel had "raised the standard of living" in the
occupied territory. The request for references stands. You are certain in your
opinion, but yesterday's news brings pictures of new houses destroyed, with the
avowed intent to generate a new generation of refugees.
Please note that a "convincing argument" is probably not possible, especially
where recalcitrance joins a resolute opinion.Effective advocacy requires that all
issues be joined, so that that truth may eventually emerge.
The Palestinian people suffer from lack of representation, and as you recall,
"nature abhors a vacuum." One should not be surprised if gratuitous comment
appears, though the effective audience be a new generation...
Omar Rumi
Malaysia

Monday July 22, 2002 at 3:15 am
I wasn't speaking of Northern Ireland or South Africa, I was speaking of the
Palestinians. Apparently, the Palestinians are totally incapable of ethnic
cleansing. The cleansing of the Jews from the West Bank under the Jordanian
occupation may not thus have been ethnic cleasing at all, but simply an
anticipation of the alleged ghetto-building in the West Bank under the later
Israeli "occupation", which wasn't even in the cards at that time. When the rest of
your argument rests on the "Israeli occupation" premise, how can you even make
a comparison to South Africa and Belfast?
The Versailles Treaty made with Germany after WW I was technically valid
16
until the fall of the Berlin Wall. Maybe you could use this comparison to prop up
UNGAR 181?
It is pointless to rehearse everything that Etzel, Irgun, Haganah, Stern Gang etc.
did. No matter how many other Jewish terrorist organizations you can mention, it
doesn't alter their irrelevance from the present point of view. They did what they
did to achieve a goal, which was a state of their own. The Palestinians have been
offered a state of their own, but they prefer terrorism. All the "arguments"
presented in favour of terrorism, which most of the arguments here amount to
ultimately, aren't even worth rebutting. Maybe it's indeed your objective to "dull
the minds" of everybody else by repeating the same arguments, so that you will
be the ones left to win the trophy. I don't have the time for this. Congratulations!
Jari Nousiainen
Finland

Monday July 22, 2002 at 9:27 am
Mr. Rumi, there is nothing for me to rebut. You never backed your initial claims
regarding the standard of living in the disputed territories before and after 1967
(they were wrong, but the burden of proof is not on me to demonstrate that; your
substantiation was that some people living there would argue the point). Now
you have supplemented that with vague and off-topic anecdotal assertions
regarding Israel's alleged recent actions. Seemingly you think this demonstrates
that Israel's response to 22 months of terrorist attacks on its civilian population is
what caused this terrorism in the first place.
Do not confuse my reluctance to engage in off-topic debate as an indication that
your innuendo is correct (though I will point out that, oddly, this is the only
support you have provided for your argument -- that it stands not because you
have provided evidence but because I have not bothered to disprove it). Finally:
no, not all issues must be "joined".
Mr. Mobarek, I'm not sure that Haganah officers referred to Etzel/Lehi/Stern as
"terrorists". I think the Hebrew word in use was "saboteur". But that's not so
relevant. My objection was to your mapping of current day Palestinian Arab
terrorism (primarily directed at civilians) to Jewish terror (chiefly guerrilla
warfare directed at the British military) in the 1940s, seemingly ignoring Arab
terrorism present in every decade since the 1920s, as if it was but a recent and
necessary pre-state phenomenon.
Regarding the "settlements" and land ownership:
"Israel does not expropriate any private land for the purpose of establishing
settlements. Settlements are only established on public land after an exhaustive
investigation has confirmed that no private rights exist in the land in question.
The process of investigation includes an appeals process, through which any
17
individual claiming rights in the land can object. "
http://www.israel.org/mfa/go.asp?MFAH0dgj0
Leeron Kopelman
Ann Arbor, MI, USA

Monday July 22, 2002 at 1:22 pm
In response to Mr Kopelman's comment: "Seemingly you think this demonstrates
that Israel's response to 22 months of terrorist attacks on its civilian population is
what caused this terrorism in the first place."
It is a widespread belief that the Israeli attacks are only the result of defence
against an intolerable number of terrorist attacks.
Statistics prove that this is simply false. A simple reading will show that at every
stage of the conflict the Israeli forces where the escalating element.
1987 22 Palestinians dead 0 Israelis
1988 306!! Palestinians 10 Israelis
1989 304!! Palestinains 9 Israelis
The numbers at this point do not look so one sided after the Palestinians
introduced suicide bombing. But the pattern clearly shows that suicide bombing
emerged after the violence from the IDF and not the other way round.
So in keeping with the "response" logic, it seems that the IDF had predicted the
suicide bombing wave that will emerge in 2000 and started punishing
Palestinians for it in 1987.
For full stats see: http://www.btselem.org/English/Statistics/Total_Casualties.asp

S Mourad
Canada
Monday July 22, 2002 at 1:52 pm
In response to Jari:
"No matter how many other Jewish terrorist organizations you can mention, it
doesn't alter their irrelevance from the present point of view. They did what they
did to achieve a goal, which was a state of their own."
I guess the Palestinians are blowing themselves up for the sheer pleasure of it!!!
Are you saying that terrorism is acceptable if a clear and just political goal is
sought?

S Mourad
Canada
Monday July 22, 2002 at 3:51 pm
Mr. Kopelman, a google search for "palestinian airport destroyed" will return
over 17,000 references to sources which give details of Israeli destruction. YOu
18
are invited to rebut any or all of the reports.
As you may recall, the initial assertion that Israel had "improved" the standard of
living in the occupied territory was yours. My response was for documentation,
which was not provided.
You deny that a specific list of property destroyed by the IDF was provided, yet
a cursory glance at the recent posts will show you are mistaken.
If you believe that any topic is "off the subject," it would be informative if you
would be specific.
You have provided a statement asserting that the settlements are always built on
land where there has been an "exhaustive study" to assertain that "no private
rights exist." I will address this in detail later, and since it is you, again,
introducing the subject, it cannot later be said that an off-topic subject was
brought forward by others. Your position that rebuttal is not required defies legal
logic, and does nothing to further your defense of Israeli policy.
MR. Nousiainen, I agree with Mr. Mourad in highlighting the double standard
you hold regarding the use of force in pursuit of a political goal.
Mr. Kopelman justifies the earlier Israeli history of terrorist activity as "a
necessary pre-state phenomenon." We must now ask if he finds the same
justification acceptable and correct for Palestinian actions?
Omar Rumi
Malaysia

Monday July 22, 2002 at 6:03 pm
Mr. Mourad would be more honest if he informed us that nearly half of the
Palestinian Arabs killed in the first intifadah (his 1987 & 1988 figures) were
murdered as "collaborators" by Arab death squads, not by Israeli forces.
Nor is Mr. Mourad's larger argument at all convincing. How many Palestinian
Arabs died at the hands of Israel in 2000 prior to the outbreak of Arab violence
in September? How many in 1999? 1998? Let's face it. The Palestinian Arab
violence in this second intifadah was the response (Arafat's counter-offer) to the
Clinton and Barak peace plans.
That more Arabs have died than Israelis can be attributed to many factors. The
Arab death squads murdering their own for starters, not to mention the inclusion
of suicide attackers and other combatants in the Arab death total. It exemplifies
the prevaling martyrdom mentality, where many are willing (and do) attack
superior forces in defensive positions (apparently they value the next life more
19
than this life).
Mr. Mourad would have us believe that the Arab death toll was the result of
indicriminate Israeli "escalation". Yet a closer examination of his own numbers
reveals a different truth. A new comprehensive study by the International Policy
Institute for Counter-Terrorism reveals that despite the fact that roughly 3x as
many Arabs have died in this intifadah as Israelis, more Israeli women, children
and elderly have been murdered (in absolute, not just relative terms). For
example, only 61 Arab women have been killed (5%) vs. 160 Israeli women
(30%). Israel's actions have not been indiscriminate nor directed at the civilian
population. Can the same be said with regard to Arab terrorism?
Mr. Rumi seems to think that Israel is on trial here. Since much of what he
asserts I said is incorrect, all I can suggest is that he reread my previous
comments. For example, I did not justify "terrorist activity as 'a necessary prestate phenomenon." Mr. Rumi dropped the "as if" from the beginning of my
sentence, which questioned if Mr. Mobarek was using this justification.
Similarly Mr. Rumi neglects that he first raised the "perception" about the
standard of living in his post on Friday July 12, 2002 at 3:57 pm. His on-going
charade of substantiation is that 1) the Palestinians have this "perception" and 2)
that I have not disproved it. Again, I will not do Mr. Rumi's homework for him. I
will sleep soundly tonight with the knowledge that the number of schools,
hostpitals, tractors, cars, and refrigerators in the territories dramatically increased
after 1967. So did agricultural output, GNP, etc. Until Mr. Rumi provides
evidence backing his "perception", I have nothing to refute.
So in a last effort to return to the topic of this symposium let me repeat my
question to Prof. D'Amato:
Do the treaties signed by Israel and Egypt, Jordan and most importantly
between Israel and the Palestinian Authority modify the legal status in
accordance with what is written at the end of point 5 in the essay at the top
of this page?
Leeron Kopelman
Ann Arbor, MI, USA

Monday July 22, 2002 at 7:19 pm
Mr. Kopelman, you are missing the point I am trying to get across. Terrorism, in
any form, is against all moral and legal principles that civilized societies are
based on. Whether it is Palestinian or Israeli terrorism, our denunciation of it
should be clear, swift, and objective. Contrary to what Mr. Nousiainen seems to
be suggesting, I am not making an argument for terrorism. I am merely asserting
that we should not employ a double standard when discussing Palestinian
20
struggle for independence.
As for your assertion that Arabs have been involved in terrorist activities since
the 1920s, I would tend to agree. However, I would not stop at activities of Arabs
only and would assert that Israelis too have been involved in terrorist activities
during the same time period.
As regards to settlements, I would suggest that you review other sources aside
from the Israeli government’s Ministry of Foreign Affairs web site. It is unlikely
that you will get a fair and objective recounting of facts and analysis from
official Israeli or Arab government sources on the subject. There are several
sources on the Internet that will give you a more balanced point-of-view and a
more comprehensive review of the actual practices in the West Bank and Gaza.
There are also several other books and publications on the subject that are
available online.
Mr. Nousiainen, I am dismayed at the insinuations you are making. I have gone
to great lengths to maintain my objectivity on this very complex subject. While I
cannot claim to be successful with every attempt, I have tried to see both pointsof-view on the issue and acknowledge wrongdoing when I see it. However, I
have yet to see you point to or acknowledge a single action that the Israeli
government did that would make them culpable for anything at all. Your attitude,
and the attitudes of others who decided to simply propagate strictly pro-Israeli
views, seems to suggest that successive Israeli governments have done absolutely
NOTHING wrong over the entire sordid 50-year history of the conflict. Aside
from the sheer intellectual dishonesty of the assertion, this serves no other
purpose than to prolong the suffering of both Israelis and Palestinians, and would
probably rank high among the reasons why this conflict has lasted as long as it
has. I will stand ready to engage in objective and sincere debate when you feel
you are ready for it.
Sameh Mobarek
Chicago, Illinois, USA


Monday July 22, 2002 at 7:31 pm
I would like to add another question to Professor D’Amato on to the list started
by Mr. Kopelman. Can the majority approving UN GAR 181 justify the
authoritative nature of the resolution?
Sameh Mobarek
Chicago, Illinois, USA
Monday July 22, 2002 at 11:19 pm
In response to Mr Kopelman:
1) The figures I supplied are actually figures of Palestinians mudered by Israelis
and vice versa.
21
2) The reasons I quoted the 1st 3 years of the conflict is to demonstrate the
fallacy of portraying the Israeli violence as a response to the Palestinian suicide
bombing. The numbers show clearly that widespread violence was started by the
IDF before any Palestinian activity.
3) As for the care the IDF is taking in discriminating in its violence here a very
unsetteling fact:
Since the biginning of the intifada, 115 Palestinian children under 13 were killed,
10 Israeli.

S Mourad
Canada
Tuesday July 23, 2002 at 1:16 am
Mr. Mourad seems to be very selective in his age choice. But one need note that
of the 58 Arab children killed under the age of 14, 52 were males and most of
them were at the top end of that age bracket. They weren't killed in the safety of
their homes, they were in the midst of hostilities. (At least one 13-year old was a
suicide bomber, a couple of others participated in an armed attempt to infiltrate a
"settlement".)
In stark contrast, Israeli children intentionally murdered are evenly distributed
among sexes -- they were random victims. In relative percentage terms, more
Israeli children have been killed than Palestinian Arab children.
If we are to look at mature (over 40) non-combatant casualties, like with female
fatalities the number of Israelis intentionally murdered (167) is, in absolute
terms, more than double the number of mature non-combatant Palestinian Arabs
killed (70).
The assymetry in deaths is primarily amongst combatants, perhaps because
Israeli soldiers tend to be in defensive positions and wear bullet-proof vests
while Arab combatants tend to engage in suicidal attacks.
Mr. Mobarek, I didn't see why it was necessary to raise Etzel/Lehi in order to
condemn current day Arab terrorism. It was your comparision that compelled me
to point out that, contrary to your assertion, the vast majority of Palestinian
Arabs support acts of terrorism (even suicide bombings), whereas the majority of
Jews in the 1940s, including the Jewish Agency, opposed such tactics. Similarly
I am confused why you found it necessary to convolute "terrorist" with "freedom
fighter" (again, though, I admit that this is a pet peeve of mine).
Allow me also to add that the Arabs exaggerated the Israeli attrocities for their
own political purposes (while little consolation, the death toll at Deir Yassin -- as
confirmed by a study at Bir Zeit University -- was half of what was claimed,
22
there is no evidence that even a single woman was raped, and many of the
casualties were combatants killed during the fighting). Similarly, whereas you
alleged that the refugees streaming out of Israel-to-be had tales of horrors, the
reality (according to Glubb Pasha, the British commander of the Arab Legion) is
that most fled well before the fighting had reached their villages and without ever
seeing an Israeli soldier, let alone an attrocity.
If you condemn terrorism than we agree and can move on. (:
Leeron Kopelman
Ann Arbor, MI

Tuesday July 23, 2002 at 10:52 am
"Mr. Mourad seems to be very selective in his age choice. But one need note that
of the 58 Arab children killed under the age of 14, 52 were males and most of
them were at the top end of that age bracket."
115!!! Palestinian children under the age of 14 were killed since the start of the
intifada.
I have not tried to massage the data, as you claim, but simply reported the
sources I have:
http://www.btselem.org/English/Statistics/Minors_Killed.asp
The point you are making is certainly valid, even though your numbers seem
wrong. This is not a case of racial cleansing as the Deir Yacine massacre was. I
am accusing Israel of excessive use of force and occupation both of which have
driven the Palestinians to the only defense they could muster (ie indiscriminate
terrorism).
The idea that Israel is simply defending itself against massive terrorist attacks is
contrdicted by the killings that show that the Israelis started killing Palestinians
in large numbers when their only weapons where rocks.
If Israel was truly looking for security with no expansionist agenda a simple
withdrawl from the territories would suffice.
This would be my last post on this subject as I think this thread is more directed
at the legal side of the bounderies.

S Mourad
Canada
Tuesday July 23, 2002 at 11:53 am
PS Israeli army killed today 8 children, aged 2 month to 11 years, in a "targeted"
operation against Hamas leader.
S Mourad
Canada
23


Tuesday July 23, 2002 at 7:04 pm
I am a non-lawyer who has been reading with great interest the discussion in this
forum for the last month or so. I note that there is a tendency for the participants
to deviate from the initial theme, "The Legal Boundaries of Israel in International
Law", and get involved with all of the rest of the issues in the Arab Israeli
dispute. In the interest of facilitating retuning the discussion to the original
theme, may I request the learned participants to opine on degrees of similarity of
this dispute to others in recent history? Have there been inter-ethnic disputes
over territory not included within the borders of internationally recognized states
that was eventually resolved? Is the Arab Israeli dispute so unique that there is
no clear paradigm for a solution?
S. Ames
USA
Wednesday July 24, 2002 at 4:41 am
Mr. Mourad, your figure of 115 is since 1987. My figure of 58 is since
September 2000.
That only 6 of the 58 deaths were girls indicates that these are not randomly
inflicted casualties. Not children killed in the safety of their homes or at border
checkpoints where one would expect the presence of a similar number of boys
and girls. (Yesterday's attack stands in stark contrast to this.)
Furthermore, most of these "13 & under" casualties are actually 12 or 13, not 2
or 5 or 8 year olds. I know that only a small number of these were armed
assailants and suicide bombers, but the data suggest that these ~12 year olds are
engaged in behavior that puts them in harms way, for one example, throwing
Molotov cocktail firebombs at soldiers.
Let me remind you President Assad's words at the October Arab League summit,
to the effect that if the Palestinian Arabs wanted to stay in the safety of their
homes they could do so. His conclusion was that since they are willing to
sacrifice themselves, they deserve the support of the Arab world.
Nor am I convinced that "indiscriminate terrorism" against distant civilians is the
"only" form of "defense" the Palestinian Arabs can muster. That sounds like an
excuse/justification of terrorism. To the contrary, if illegal combatants would
cease their attacks on Israeli targets, they wouldn't need any defense.
Are you really suggesting that Israel withdraw unilaterally as a show of good
faith? That Israel has withdrawn from ~95% of the territories it acquired in 1967
does not impress you? That Israel has turned over 42% of the disputed territories
(where 98% of the Arab population resides) to the PA is insufficient as a show of
good faith?
Leeron Kopelman
24
Ann Arbor, MI, USA



Wednesday July 24, 2002 at 10:08 am
To Mr Kopelman, in order not to distract from the main subject of this forum I
will reply to your latest post in the Mideast Discussion forum.
S Mourad
Canada
Wednesday July 24, 2002 at 11:38 am
The latest atrocity elicits my last contribution to the subject of The Legal
Boundaries of Israel. It is the opinion of the world that now the border the
Israeli's deserve is the low tide line along the Mediterranean Sea. Ancient Jewish
documents foretell a third and final dispersal. Every day the Israeli actions bring
that day closer.
Omar Rumi
Malaysia
Wednesday July 24, 2002 at 4:20 pm
So getting back to the topic, here is my question for Prof. D'Amato:
Do the treaties signed by Israel and Egypt, Jordan and most importantly
between Israel and the Palestinian Authority modify the legal status in
accordance with what is written at the end of point 5 in the essay at the top
of this page?
Mr. Mobarek also asked:
Can the majority approving UN GAR 181 justify the authoritative nature of
the resolution?
[My apologies if I left out any other open points of discussion.]
Leeron Kopelman
Ann Arbor, MI, USA

Thursday July 25, 2002 at 7:02 am
Thanks to Mr. Kopelman for restating the questions. First, you have to be a state
to sign a treaty, which excludes the Palestinian Authority. Second, A treaty
between A and B cannot change the territorial rights of C. So, my answer to your
question would be "no." As for Mr. Mobarek's question, UNGAR 181 was not, in
my view, a "resolution" in the normal sense of a nonbinding expression of
attitude or policy by the General Assembly. Rather, in this special case, it was a
surrogate for an authoritative finding by the Trusteeship Council which should
have had jurisdiction over the Palestine question but was not given jurisdiction
over it. The "mandates" regime of the League had to go somewhere, and in my
view it went to the UN as a whole, which means that it went to the General
25
Assembly. (If I recall correctly--and someone out there can advise me on this
point--the committees on information which supervised the peaceful transition to
decolonization of a great many small territories, were a creature of the General
Assembly.) As a general matter--and in response to Mr. Ames' question whether
the Israel-Palestine conflict is similar to many others--I think we're dealing here
with a most unique situation. The closest analogy is rather distant--the one I
mentioned about the South West Africa Cases. There's really nothing similar
enough to the Palestine border dispute to glance any light at it. That's why it's
even misleading to use words like "treaty" and "resolution" in this context,
because they obscure more than they disclose. The essence of the situation is that
this is a mandate, a trusteeship if you will, that cannot be wholly conceptualized
within the framework of law courts. It takes a certain amount of familiarity with
the rise of the Chancery court system in England and the idea of equitable
jurisprudence to get a handle on what the framers of the Covenant of the League
of Nations had in mind. Palestine is the last remaining mandate, and we probably
will not have a chance to use this ancient learning again, but it has turned out to
be a very important mandate. We scholars do not have the time or talent to go to
the Middle East and get on a soapbox or help distribute food to the refugees or
network at great length with distressed Israeli citizens, but we can do what we do
best, which is to dig below the surface of the arguments and charges and
invective that characterize debates on this subject, and see if doing the "legal
thing" might in some small way possibly help.

Anthony D\'Amato
Northwestern Law School
Chicago, Illinois, USA
Thursday July 25, 2002 at 3:25 pm
Professor D’Amato, thank you for your elaboration. As I mentioned in previous
comments, I always believed that the UN had authority over the mandate by
virtue of Article 22 of the Covenant of the League of Nations and Chapters 11
and 12 of the subsequent UN Charter. Great Britain, as mandatory power, had
authority over the mandate as a proxy for the League of Nations. When they
abandoned the mandate, they lost any special authority, aside from their power
as a voting member of the General Assembly, to approve or disapprove any
changes to the mandate (partition would certainly be one) as detailed in Article
79 of the UN Charter. When the mandate was terminated, sole authority over the
underlying trust territory reverted to the General Assembly (reference Article
85(1)). The Trusteeship Council’s purpose was to render assistance to the
General Assembly in carrying out its (the General Assembly’s) duties in the trust
territories (reference Article 85(2)). Consequently, the General Assembly had
jurisdiction over the trust territory to pass UN GAR 181 and did so to discharge
its duties in Article 76.
Perhaps what I am still a bit unclear about is the force behind UN GAR 181. This
comes back to the definition of an ‘authoritative finding’. As I understand it, a
finding requires a high level of consensus among UN members for it to become
26
an ‘authoritative’ finding and part of international law. From explanations given,
am I correct in assuming that a finding, in the context of UN GAR 181, is more
like an ‘administrative’ finding by an authority with subject matter jurisdiction
and not so much an ‘authoritative’ finding within the context of international
law? Also, if the issue were ever brought before the ICJ, what weight would the
court give to such a finding? What would be the key issues that the court would
have to decide on?
Sameh Mobarek
Loyola University Law School
Chicago, Illinois, USA


Thursday July 25, 2002 at 9:50 pm
Neither Professor D'Amato nor Mr. Mobarek have addressed the issue of
continuing residual British sovereignty in the Palestine Mandate after the
mandatory power abandoned the Mandate on 15 May 1948. It must be noted that
even though Japan abandoned her Pacific Islands Mandate after World War Two,
and even though the UN Security Council awarded the Pacific Islands mandate
to the United States as a Trust Territory on 2 April 1947, Japan still formally
ceded her sovereignty over the Pacific Islands mandate in article 2, paragraph (d)
of the San Francisco Peace Treaty of September 1951, indicating that she still
possessed residual sovereignty over the mandate until this date. This in turn
would indicate that Britain, the mandatory power, continued to exercise residual
sovereignty over the Palestine mandate until her formal declarations of 29
January 1949, in which she recognized the State of Israel, and 27 April 1950,
when she recognized Israeli and Jordanian annexations up to the 1949 armistice
demarcation line. It should also be noted that the PLO found it neccesary to
declare the independence of Palestine a second time in Algiers on 15 November
1988, shortly after Jordan ceded the west bank to her in July 1988, and that the
UN General Assembly did not recognize the PLO as "Palestine" until December
1988. This would indicate that the first Palestinian declaration of independence,
in Gaza in October 1948, was illegal because it was not recognized by Britain,
that Palestine did not have any lawful sovereignty within the former Palestine
mandate until Jordan formally ceded the West Bank to her, and that the 1949
armistice line is the legal international boundary between Israel and Palestine.
Mike Anderson
Toronto, Canada
Friday July 26, 2002 at 10:49 am
The difference between the Pacific Islands and Palestine mandates centers on the
circumstance of their termination. Great Britain freely declared that it was legally
abandoning its mandate and then followed this declaration by the physical
abandonment of the mandate territory. On the other hand, Japan physically
abandoned its mandate in the face of Allied (mostly US) military force in 1945
and did not abandon its mandate legally. The Pacific Islands became subjects of
US military rule in 1945 or so. The UN simply formalized a pre-existing
27
arrangement. However, technically speaking, the UN did not have the authority
to award the mandate. Japan needed to legally abandon its mandate so as to
remove any doubt that Article 79 of the UN Charter was satisfied and to establish
UN authority over the mandate territory.

Sameh Mobarek
Chicago, IL, USA
Sunday July 28, 2002 at 2:01 am
First thanks to Leeron Kopelman for asking about the 1949 Armistice
Agreement, as a variation of the GAR 181. Second thanks to Professor Anthony
D’Amato for his clarification. Third thanks to Professor Sameh Mobarek for his
asking of the authoritative level of the GAR 181. Lastly thanks to Mike
Anderson for his pointing out that “UN General Assembly did not recognise the
PLO as “Palestine” until December 1988.” As a lay person, I thought that the
1949 Armistice Agreement, with the signature of the then leader of Jordan on the
UN Map of Middle East (as well as the signature of the Army leader of the
Jewish state of Palestine) per this web site
http://www.un.org/Depts/dpa/qpal/maps/arm_1948.jpg is sufficient proof of the
Arab world acceptance of Israel’s borders as pre 1967. Palestine as a statehood
concept is a new construct that probably emerged just before the 1967. Thus the
War of 1947-1948 ended with the sharing of the remaining Arab state of
Palestine, amongst the Jews, Egypt and Jordan. Maybe more than law
(international GAR 181 or multi lateral or bilateral agreements after the cease
fire) may be the Arab world notion of honour and gentlemen’s agreement, and
that may be why, hardly anyone holding political office in the Arab world (save
for the minority not in power, who wish to eradicate Israel) raises this issue of
going back to the 1947 borders, especially after Oslo (aborted) began. Even now
all talks are based on pre 1967 borders. Professor Anthony D’Amato raised the
legal construct of the GAR 181 as being a continuity of a Mandate, and thus it
was unlike any other GAR. Unless I have grossly misunderstood (which I may
have as a lay person) Professor Anthony D’Amato, this begs the serious question
whether this ‘powerful/empowering’ Mandate still ‘persists’ whereby it can give
any GAR thereafter (apart from the ‘Founding’ GAR 181) on the Question of
Palestine, an elevated ‘mandate’ status beyond that of a usual GAR. If all GARs
when dealing with the Question of Palestine have this “elevated and empowering
special status”, then does the GAR in December 1988 declaring PLO as
Palestine, legally vest statehood on Palestine? Secondly, even in 1947, I assume
as a lay person, that the UN Security Council had more power than UN General
Assembly as is the case in contemporary times and now. So why is the GAR 181
considered by international law to be the effective instrument and not a
resolution from the UN Security Council? If it were the UN Security Council
resolution that we should be looking at, should it be an independent resolution
deciding the same or at least affirming separately GAR 181? Thus Professor
Anthony D’Amato’s legal thesis of the supremacy and invincibility of GAR 181
begs more unanswered questions, which I would be pleased to be receive
answers/advice.
28


Ms. Lu Yi Ling (family name, Lu)
Malaysia
Monday July 29, 2002 at 9:12 pm
It should also be pointed out that even though Israel does not recognize Palestine
as being an independent state, she does recognize her as being an "authority"
over the Palestinian territories which she has occupied since 1967. Mr. Arafat
and Fatah did win free elections in these territories, and are a legal government
over them, and are therefore competent to negotiate a frontier treaty. A boundary
agreement, such as the Oslo Accords, signed between Israel and the PLO, would
be just as legally binding on both parties regardless of whether one of them was
not an independent state, just as an boundary agreement signed between the
United States and Puerto Rico would be legally binding even though one of the
parties is a territorial dependency of the other. The wording of the Oslo Accords
leaves no doubt that every area within the 1949 armistice lines is considered to
be Israeli sovereign territory. It would be legally impossible to revert to the 1947
partition boundaries without Israel's consent.
Mike Anderson
Toronto, Canada
Tuesday July 30, 2002 at 1:16 am
To this forum, from a lay person’s point of view, what is the ‘procedure’ to get
statehood ? More specifically, in the case of the Mandate of Palestine, is there a
same or similar procedure for both the Jewish and Arab States of Palestine to be
conferred statehood ? When Israel achieved statehood, what was the legal
procedure she followed? Did the “Arab State of Palestine”, assuming it is
“Palestine” as we commonly call it now (of pre 1967 borders, West Bank &
Gaza Strip with East Jerusalem) try the same route or procedure? If they did not,
what did they do instead? If they did, did they succeed or fail? If the “Arab State
of Palestine” did and failed, why did they fail? If statehood in this instance is
about ‘legal procedure’, then whose legal procedure or which forum’s procedure
is the crux? If statehood in this instance is not about ‘legal procedure’, what is it
about then? What are the criteria for being conferred statehood and by whom?
I had the benefit of reading the discussion archive in this forum and am trying
Mr. Kopelman’s HTML codes, to see if I can work it.
To Mr. Mike Anderson’s statement, Monday July 29, 2002 at 9:12 pm “. The
wording of the Oslo Accords leaves no doubt that every area within the 1949
armistice lines is considered to be Israeli sovereign territory.”
I wonder what Professor Sameh Mobarek meant by his posting on Thursday July
04, 2002 at 4:47 am on the same issue, at page 80 & 81 of 115 of the archive,
line commencing with ‘…As for UN SCR 242, it did not purport to determine
what the boundaries should be and certainly did not confer any rights or
authority to Israel with respect to the occupied territories’ and ending with ‘ …
29
Within the very limited sense that Israel as a practical matter would have had to
‘administer’ the occupied territories while these negotiations were taking place,
the resolution allowed temporary Israeli control over the occupied territories.
However, the drafters did not envision that these ‘negotiations’ would take a
long time and, therefore, the resolution can not be used as justification of or as
giving sanction to long-term Israeli administration of the territories. In addition,
the exclusion of the fabled ‘the’ before the word ‘occupied’ in the English
language version of the resolution was intended to allow the parties some limited
flexibility for minor ‘land adjustments’ to make the secure and recognized
borders among the parties more practical” Maybe you could address Professor
Sameh Mobarek’s comment, which you omitted earlier on Thursday July 04,
2002 at 9:58 am
Lu Yi Ling
Malaysia

Tuesday July 30, 2002 at 2:34 am
Ms. Lu, while I am flattered that you have conferred on me the academic honor
of a professorship, I have to point out that I am a student of law and not a teacher
of it. The Israeli-Palestinian dilemma has interested me for some time. I have
taken every opportunity I could to read more and educate myself on the subject.
However, as far as I know, Professor D’Amato is the only one in this forum that
has the benefit of academic scholarship and experience behind his opinions.
Mr. Anderson, I agree with your conclusion that returning to the 1947 partition
plan would require Israeli consent. However, my reasons for reaching this
conclusion are likely to be different than yours. I believe it was Professor
D’Amato that first said that any state can consent to the annexation of its own
territory to another state. In giving such consent, the annexation becomes an
acceptable action under international law. In the Oslo Accord, the Palestinians
accepted to limit the scope of peace negotiations to the pre-1967 border and to
recognize Israel within borders established by the 1949 armistice. In this respect,
they consented to Israeli annexation of territory earmarked for the ‘Arab’ state of
UN GAR 181. It was Professor D’Amato’s original contention, which I agreed
with, that such position was obviously favorable to the Israelis. If the
Palestinians had not consented to this annexation, it is highly unlikely that the
UN would have stepped in and enforced UN GAR 181. The UN has proven itself
completely ineffective when it comes to issues dealing with Israel. Therefore, I
agree with your statement that Israel would have to willingly consent and
withdraw to the partition line for the partition plan to become a reality.
Sameh Mobarek
Loyola University Law School
Chicago, Illinois, USA

Tuesday July 30, 2002 at 4:09 am
30
Mr. Sameh Mobarek, from my limited point of view, I did not confer on you an
academic professorship. I did however make a wrong assumption based on what
I perceived as your scholarly, humane and fair comments from legal and extralegal angles, to which I associate with true academic scholarship and hallmark of
the Tradition of academic professorship. I also did not ‘flatter’ (as I believe that
word, carries a negative import, of lack of true substance of the subject who is
being flattered) you, but I did honour you, with my respect for your many
attempts to try to see both sides and all sides of the views, as best as you
humanely can. To me, the distinctive nature of your scholarship, is your humble
attempt to explain in way/s that is comprehensible. I also think well of the others,
Mike Anderson, Leeron Kopleman ...(:
To the forum, and Professor Anthony D’Amato, I would be pleased to get your
answers to the outstanding queries.
Yi Ling
Malaysia


Tuesday July 30, 2002 at 3:01 pm
Ms. Lu, I am, in the most positive sense possible, flattered again. All I have to
offer is my opinion, and I will continue to endeavor to make it balance.
Sameh Mobarek
Loyola University Law School
Chicago, Illinois, USA
Tuesday July 30, 2002 at 4:05 pm
Mr. Mobarek,
I understand this is a difficult area, from all angles, legal and non legal; as you
have on Tuesday June 25, 2002 at 6:07 pm, stated, “….As to the issue of the deal
offered Palestinians in Camp David in 2000, I think a few facts have to be noted.
Without regard to Palestinian concessions with respect to physical borders that
are the topic of this forum, the deal gave Palestinians no control over their air
space, no control over their waterways, no control over their own borders, no
control over the water resources on their land, limitations on the means of selfdefense, legitimized many of the Israeli settlements, and deferred discussion on
the issues of Jerusalem and refugees. The fact that the deal was the best deal
offered by the Israeli government to date does not automatically make it a good
deal for Palestinians.” .
Firstly, how is your June 25, 2002 comment connected, if any, to Yisrael Medad,
Begin Heritage Center, Jerusalem, Israel on Monday July 01, 2002 at 4:45 am on
“….In this connection, Israel should take little comfort from the promise of
Palestinian demilitarization. Indeed, should the government of Palestine choose
to invite foreign armies or territories on to its territory (possibly after the
original national government had been displaced or overthrown by more
31
militantly anti-Israel forces), it could do so not only without practical difficulties,
but also without necessarily violating international law. The threat posed by an
independent Palestinian state would also impact directly upon Jerusalem´s
nuclear strategy. For the moment, Israel - still buffered from a hot eastern
border by the West Bank - can afford to keep its bomb "in the basement." If,
however, this territory became the heart of "Palestine," Israel would almost
certainly have to move from "deliberate ambiguity" to disclosure, a shift that
could substantially improve the Jewish state´s nuclear deterrence posture but
could also enlarge the chances of a nuclear war should this posture fail. Israel
does not hold any "occupied" territories. It is critical that the Government of
Israel recognize this and that it never accept such an incorrect characterization.
To do otherwise would be to degrade its very capacity to endure.”
Secondly, how is your June 25, 2002 comment connected, if any, to Mike
Anderson’s posting on Monday July 29, 2002 at 9:12 pm , “The wording of the
Oslo Accords leaves no doubt that every area within the 1949 armistice lines is
considered to be Israeli sovereign territory. It would be legally impossible to
revert to the 1947 partition boundaries without Israel's consent.” and your own
comment, on Tuesday July 30, 2002 at 2:34 am, “ Mr. Anderson, I agree with
your conclusion that returning to the 1947 partition plan would require Israeli
consent. However, my reasons for reaching this conclusion are likely to be
different than yours.” .
Thirdly, can you explain how a situation can emerge where such an anomaly is
created as you concluded that, “The fact that the deal was the best deal offered
by the Israeli government to date does not automatically make it a good deal for
Palestinians.”
Fourthly, can you offer us the benefit of your research and insight as to what is
the methodology, way forward, to break the deadlock that was inherent within a
situation where, “The fact that the deal was the best deal offered by the Israeli
government to date does not automatically make it a good deal for Palestinians.”
I have good esteem of your sincere intent to endeavour to provide a balanced
view to suggest the way forward to break the deadlock factors, then inherent in
Oslo and may be too, in the new Bush Plan, unless ‘somehow’ actively and
adequately addressed.
Yi Ling
Malaysia

Wednesday July 31, 2002 at 2:09 pm
Ms. Lu, with regard to Mr. Medad’s concern, it is not without merit. Given the
history of animosity between Israelis and Palestinians, it is highly likely that a
Palestinian state resulting from peace negotiations will be initially hostile to
Israel. However, the argument is singularly self-serving. To accept it as
32
justification for denying Palestinians statehood would be tantamount to accepting
status quo ante (i.e. Israeli occupation of the West Bank and Gaza). Israel’s
relationship with Syria, Lebanon, Jordan, and Egypt over the past 5 decades has
been tremulous at best, but Israel continues to survive and thrive. Israel can and
will survive a Palestinian state.
As for the note about Israel’s nuclear capability, there is really nothing hidden
about it. It is a well-known fact that Israel possesses nuclear weapons and, if
history is an indication, that it has the compunction to use them when it deems it
necessary. It is worthy to note that successive US administrations have exempt
Israel from any pressure to control and/or eliminate its nuclear capability while,
at the same time, pressing all other nations to participate in their nuclear antiproliferation initiatives. Nonetheless, with regard to a new Palestinian state,
while I am not an expert on nuclear weapons, I do not believe that they will
likely be an option for the IDF because of the proximity of the probable targets to
Israeli cities, towns, and villages, and the danger of contaminating one of Israel’s
largest source of water (the aquifer under the West Bank).
As to your second point, the quote from my note of June 25 that you pointed to
discusses issues that are not related to physical borders. It was my assertion then
that too much emphasis was put on the territorial ”concessions” included in the
Israeli offer without fully analyzing other aspects of the offer.
As to your third point, the anomaly is easily explained. In order to evaluate the
attractiveness of an offer, one has to look at ALL its elements. Just because one
element is attractive does not mean that the entire offer is attractive. The
territorial proposal put forward by Israel was indeed attractive given the history
of the conflict and the past inclinations of successive Israeli administrations.
However, like I mentioned in the previous paragraph, other elements of the offer
detract significantly from the appeal of the entire offer. It is of little consolation
for Palestinians to have a state defined on large portions of the West Bank and
Gaza when they have little effective control over their own territory. For
example, if I were a Palestinian, I would be weary of the Israeli policy of
collective punishment. Since Israel would control both the air space and the
borders, as current events illustrate, there is nothing the Palestinians could do if
Israel decides to close international access to Palestine thereby choking the
economy of this new country. In addition, I would be weary of Israeli policy on
the use of water, which is the life-blood of the region. Currently, Israeli policy
seems to discriminate against Palestinian use of water favoring settlers and
Israeli use.
As to your fourth point, I can answer your question, but it would require too
much debate and discussion that would be far beyond the topic of this forum. I
would be happy to do it if Professor D’Amato approves of this departure or, in
the alternative, we can discuss it on a one-to-one basis via email.
33
Sameh Mobarek
Loyola University Law School
Chicago, Illinois, USA

Wednesday July 31, 2002 at 5:04 pm
Mr. Mobarek,
I must say I am truly astounded that you have ideas to break the deadlock!!! (: (:
(:
Please share them soonest! We just need to see Yahoo's on line news on Middle
East to see the intrinsic and extrinsic potential value of your extremely
significant contribution.
"Seven Killed in Hebrew U. Bombing , Wed Jul 31, 2:25 PM ET By GREG
MYRE, Associated Press Writer
JERUSALEM (AP) - A bomb hidden in a bag ripped through a busy cafeteria at
Hebrew University, killing seven people Wednesday as it shattered the academic
peace and left behind pools of blood in one of the few places where young Jews
and Arabs still mixed freely.
More than 70 people were wounded in the bombing, the second to hit Jerusalem
in two days."
Yi Ling
Malaysia

Wednesday July 31, 2002 at 6:08 pm
Professor D’Amato,
I refer to Mr. Mobarek's request, for your approval, per his statement of
Wednesday July 31, 2002 at 2:09 pm, "As to your fourth point, I can answer your
question, but it would require too much debate and discussion that would be far
beyond the topic of this forum. I would be happy to do it if Professor D’Amato
approves of this departure"
Would it be reasonable to assume that if you do not delete this specific post,
within the next 48 hours, you have no objections to Mr. Mobarek's kind attempts
to show us and others, a or the way/s out of the Israeli-Palestinian Deadlock?
Thanking you, Professor D'Amato and members of this forum, in advance.
Yi Ling
34
Malaysia


Wednesday July 31, 2002 at 11:32 pm
Ms. Lu, you give me FAR too much credit. Over the course of history, the
solution to the complex problem between Israelis and Palestinians eluded many
people that are, by far, more intelligent and knowledgeable than I am. I wish I
had a magic solution that would stop the bloodshed in the region and in all
regions. I wish I could find the Oracle of Delphi to show me the way to convince
people that life is gift from God that must be respected. It matters not whether
the lives that are lost are Israeli or Palestinian, the anguish and sorrow felt by
their loved ones will be the same. My heart weeps for them, and despairs in utter
frustration of the course their lives have taken. All I have are some thoughts,
most are admittedly not even original, that might spur debate among members of
the forum, which could, in time, illuminate a path to a solution through a
collective effort. But the first step in the path to resolving any problem is serious
debate and dialogue with the intent to finding an equitable solution to all parties.
A step that I pray Israelis and Palestinians give serious thought and deliberate
action before more innocent lives are lost.
Sameh Mobarek
Loyola University Law School
Chicago, Illinois, USA
Thursday August 01, 2002 at 6:02 am
Mr. Mobarek,
Countdown has begun for the 48 hours for you to start, ..."As to your fourth
point, I can answer your question, but it would require too much debate and
discussion that would be far beyond the topic of this forum. I would be happy to
do it if Professor D’Amato approves of this departure"
Yi Ling
Malaysia


Saturday August 03, 2002 at 12:38 am
This is an open debate and as such as elicited some very valuable information
and arguments. I've learned a lot from it. I have no interest in controlling its
scope, and leave that up to the good will and good judgment of the participants.
Anthony D\'Amato
Northwestern Law School
Illinois, US.
Sunday August 04, 2002 at 3:14 pm
Unfortunately, I have been preoccupied for the past few days, and will continue
to be so for the next few days, with personal matters, and have not had much
time to consider how to articulate my views on solutions for the Israeli-
35
Palestinian problems. Until then and in the hope of stimulating further discussion
on the topic, I offer the following two essays written by Dr. Ron Pundak who
was one of the architects of the Oslo Accord and a member of the Israeli
negotiating team until 1996. While I may not agree with all the proposals he is
putting forward in the second essay, particularly in regards to the status of
Jerusalem, I tend to agree with his approach for achieving peace and find his
views both balanced and insightful.
”From Oslo to Taba: What Went Wrong?”: http://www.gushshalom.org/archives/pundak.doc
”The Price of Peace Between Israelis and Palestinians”:
http://orae.fes.de:8081/fes/docs/IPG3_2001/ARTPUNDAK.HTM
Sameh Mobarek
Loyola University Law School
Chicago, Illinois, USA

Tuesday August 06, 2002 at 9:29 am
Sameh Mobarek,
If you can, when you are next free, please inform us of your insightful
understanding of the key points of the Israeli position versus the key points of the
Palestinian position, and where or how or why they cannot meet... thus resulting
in no peace treaty & continued violence for more than 50 years.
Yi Ling
Malaysia

Tuesday August 06, 2002 at 9:39 am
Professor Anthony D'Amato,
Thank you very much for Professor's written permission as well as 'open
mindedness'
Would Professor find it suitable to answer my outstanding queries posed, first
one, Sunday July 28, 2002 at 2:01 am and second one on Tuesday July 30, 2002
at 1:16 am
Yi Ling
Malaysia

Thursday August 08, 2002 at 12:48 am
Yi Ling, you say that as a layperson you asssume that the Security Council has
36
more power than the General Assembly. I think you've answered your own
question. Although laypersons may so think, a careful reading of the UN Charter
in its entirety shows that the powers of both organs are limited. Indeed, the
"range" of GA jurisdiction is much broader than the SC, while the military power
of the SC is stronger within the Charter's specified limits. But in either case, as I
have tried to show at some length in the earlier posts in this forum, the mandate
power resided in the League of Nations, and whan the League was extinguished
in 1946, the mandate power devolved to the UN which had been established in
1945. It was contemplated that the Trusteeship Council would take over the
mandate supervision, and for the most part that is what happened, but it did not
happen with respect to Palestine nor with respect to South West Africa. Except
for the fact that these are class A and C mandates respectively, much of the same
legal analysis applies to both. As I argue, it is the GA, not the SC, which inherits
the mandate supervisory power, as it's power is much broader than that of the
security council. The latter properly stepped in when there was a threat to the
peace in resolution 242, but it had no power to redraw the lines of the mandate,
and in fact, did not attempt or purport to do so.

Anthony D\'Amato
Northwestern Law School
Illinois, USA
Thursday August 08, 2002 at 1:59 am
Professor Anthony D'Amato,
As the Arab state of Palestine is yet to be recognised by the UN, after more than
40 years; what is the power of the GA, in respect of your legal contention that,
"...it is the GA, not the SC, which inherits the mandate supervisory power, as it's
power is much broader than that of the security council.".
Does the immense power of the GA cease immediately after the passing the GA
181?
Does the GA have no power to recognise or confer statehood on Palestine when
it applied , in 1988 (according, to what I understand of Mike Anderson's
statement on Thursday July 25, 2002 at 9:50 pm that "It should also be noted
that the PLO found it neccesary to declare the independence of Palestine a
second time in Algiers on 15 November 1988, shortly after Jordan ceded the west
bank to her in July 1988, and that the UN General Assembly did not recognize
the PLO as "Palestine" until December 1988."):(1) Apart from this GA 181, in what way(s) has the GA, on the question of
Palestine/Israel, shown that the GA has a wider jurisdiction than the SC?
(2) Why do we get this popular perception that anything that the GA does or
resolutions passed , on the question of Palestine/Israel, must be endorsed by the
37
SC for it to take effect? Is it a correct perception?
(3) Apart from GA 181 , is there any other GA resolutions on the question of
Palestine/Israel, that, have the kind of power & legal effect that GA 181 has?
Yi Ling
Malaysia

Thursday August 08, 2002 at 2:04 am
Professor Anthony D'Amato,
Error in numbering:Does the immense power of the GA cease immediately after the passing the GA
181? :(1) Does the GA have no power to recognise or confer statehood on Palestine
when it applied , in 1988 (according, to what I understand of Mike Anderson's
statement on Thursday July 25, 2002 at 9:50 pm that "It should also be noted
that the PLO found it neccesary to declare the independence of Palestine a
second time in Algiers on 15 November 1988, shortly after Jordan ceded the west
bank to her in July 1988, and that the UN General Assembly did not recognize
the PLO as "Palestine" until December 1988.") The remaining paragraphs are
numbered (2) to (4) instead of (1) to (3) in the preceding posting. Apologies.
Yi Ling
Malaysia


Friday August 09, 2002 at 12:13 am
The document refered to is UN General Assembly Resolution 43/177, passed 15
December 1988. It states that the General Assembly "affirms the need to enable
the Palestinian people to exercise their sovereignty over the territory occupied
since 1967", thus implying that Palestine has no sovereignty over areas
controlled by Israel prior to 1967 i.e. the area between the 1947 partition line and
the 1949 armistice demarcation line. The full text of the resolution can be viewed
at www.palestine-un.org/res/2-177html
Mike Anderson
Toronto, Canada
Friday August 09, 2002 at 12:18 am
Sorry the correct url is www.palestine-un.org/res/2_177.html
Mike Anderson
Toronto, Canada
38

Friday August 09, 2002 at 2:22 am
Professor Anthony D'Amato,
Further Question (5) to earlier list of (1) to (4), after Mike's posting:
...(5) Seeing that both GAR 181 and 43/177 are both majority GAR decisions, is
there also any magic or (transferred) mandate power in GAR 43/177,too; that
enables the GAR 43/177 to confer statehood on Palestine (pre 1967 border)?
Yi Ling
Malaysia



Friday August 09, 2002 at 9:52 am
A side note question regarding UN General Assembly Resolution 43/177.
"affirms the need to enable the Palestinian people to exercise their sovereignty
over the territory occupied since 1967"
Does that resolve the infamous missing "the" in 242?
S Mourad
Canada
Tuesday August 13, 2002 at 9:56 pm
Dear Yi Ling, it's nice to ask so many questions, but this isn't really a seminar. I
think the discussion would be better off if you were to state the arguments or
assumptions behind your questions, back them up, and then see what others
might say about them.
Anthony D\'Amato
Northwestern Law School
Illinois, USA
Tuesday August 13, 2002 at 10:30 pm
Professor Anthony D'Amato,
Per your new advice, and seeing that both GAR 181 and 43/177 are both
majority GAR decisions, is there "also" any similar or parallel notion of
transferred mandate power in GAR 43/177,too; that enables the GAR 43/177 to
confer statehood on Palestine (pre 1967 border), in the way that GAR 181 (not
UN SCR as highlighted by Professor to be the bearer of the mandate
power)carved out boundaries of 2 states of Mandate of Palestine in 1947?
Yi Ling
Malaysia

Friday August 16, 2002 at 11:48 am
The spoon goes round and round, stirring the soup. The eyes soon tire of
39
following the spoon, but the soup continues to be of interest. Be still, spoon.

Sad Sam
Iraq
Friday August 16, 2002 at 2:40 pm
Sad Sam,
The complexities of man knows no bounds
We go in round and rounds
We come to where we began
Same yet different before we ran
The world has not changed
Tis us that has changed
So all the round and rounds
Tis' to change our own self
Yi Ling
Malaysia



Friday August 16, 2002 at 6:31 pm
Tis easier to change the entire world Than to change ourselves.
Anthony D\'Amato
Northwestern Law School
Illinois, USA
Friday August 16, 2002 at 8:14 pm
Be still, spoon.
Sad Sam
Iraq
Friday August 16, 2002 at 9:19 pm
Professor Anthony D'Amato,
We think tis' easier to change the entire world or part of it than our selves,
So we try and try and try harder,
40
The entire world has not changed, not even a miniscule part of it,
When something in us changes,
That day,
That moment,
The entire world or part of it has changed!
Yi Ling
Malaysia

Friday August 16, 2002 at 9:24 pm
Sad Sam,
If i were a spoon, i would remember what someone once wroteThe pirate, who rapes and kills and throws the young girl overboard in the sea,
Has not opened his heart of compassion,
For if his heart were open, he would know that, he and the young girl are one,
And he would not have done that to the young girl
Yi Ling
Malaysia

Saturday August 17, 2002 at 5:47 am
Sad Sam,
The correct version of the poem is ...
I am the twelve-year-old girl, refugee on a small boat, who throws herself into
the ocean after being raped by a sea pirate. And I am the pirate, my heart not yet
capable of seeing and loving.
The full poem is at http://www.parallax.org/cgibin/index.pl?funct=chapter&query=Call+Me+By+My+True+Names&id=**ID**
Thank you.
Yi Ling
41
Malaysia


Saturday August 17, 2002 at 9:12 am
Be still, spoon. Be still or be gone.
Sad Sam
Iraq
Saturday August 17, 2002 at 10:29 am
Sad Sam,
Pardon me, what's the problem?
Or what are you trying to say or convey?
Yi Ling
Malaysia

Saturday August 17, 2002 at 11:14 am
Declaratory, declaratory; not total interrogatory. Offer insight that promotes
dialogue, analysis; less supercilious trumpery. This is a useful forum. Palestine
burns. Children are dying.
The apocalypse threatens. Think, suggest, pause for reflection, wait for several
thoughtful responses before waving the baton.
A tactful call for simple courtesy is not cruelty. What is this talk of a twelve year
old girl, afloat alone in the sea, having been raped by a sea pirate? You say, "I
am ... etc.?" Come, now.
What is noteworthy is that you feel rebuked, while there was no mention of you
at all. If you are as sensitive as you pretend to be, you will give this some
thought, otherwise you will be perceived as being much like Bush and Sharon. It
seems you do care.
Sad Sam
Iraq

Saturday August 17, 2002 at 11:20 am
Sad Sam,
Did you use the word "Sad Sam" to connote some sadness, from the root word,
'sad'?
42
"We do not understand enough of your suffering, could you tell us? ... There must
be a lot of suffering within you. We want to listen to you. ..."
Borrowed from "Embracing Anger" at
http://www.plumvillage.org/TNH/embracing_anger.htm
and it ends with "No, I am not crying.
I hold my face in my two hands.
To keep my loneliness warm
Two hands, protecting,
Two hands, nourishing,
Two hands preventing
My soul from leaving me in anger."
If you respond with another, "Be still, spoon. Be still or be gone." i will
respectfully and graciously desist to reach out to you anymore, Sad Sam or
whatever is your true name.
Yi Ling
Malaysia

Saturday August 17, 2002 at 11:37 am
Sad Sam,
To your statement, "A tactful call for simple courtesy is not cruelty. What is this
talk of a twelve year old girl, afloat alone in the sea, having been raped by a sea
pirate? You say, "I am ... etc.?" Come, now."
Please refer to the whole poem for its inherent intuitive meaning & intuitive
respond to your statement, "Be still, spoon."
Please Call Me by My True Names
Don't say that I will depart tomorrow--even today I am still arriving.
Look deeply: every second I am arriving to be a bud on a Spring branch, to be a
tiny bird, with still-fragile wings, learning to sing in my new nest, to be a
43
caterpillar in the heart of a flower, to be a jewel hiding itself in a stone.
I still arrive, in order to laugh and to cry, to fear and to hope. The rhythm of my
heart is the birth and death of all that is alive.
I am a mayfly metamorphosing on the surface of the river. And I am the bird that
swoops down to swallow the mayfly.
I am a frog swimming happily in the clear water of a pond. And I am the grasssnake that silently feeds itself on the frog.
I am the child in Uganda, all skin and bones, my legs as thin as bamboo sticks.
And I am the arms merchant, selling deadly weapons to Uganda.
I am the twelve-year-old girl, refugee on a small boat, who throws herself into
the ocean after being raped by a sea pirate. And I am the pirate, my heart not yet
capable of seeing and loving.
I am a member of the politburo, with plenty of power in my hinds. And I am the
man who has to pay his "debt of blood" to my people dying slowly in a forcedlabor camp.
My joy is like Spring, so warm it makes flowers bloom all over the Earth. My
pain is like a river of tears, so vast it fills the four oceans.
Please call me by my true names, so I can hear all my cries and laughter at once,
so I can see that my joy and pain are one.
Please call me by my true names, so I can wake up and the door of my heart
could be left open, the door of compassion.
I trust you will understand the meaning of this poem once you have read it. If
you do not, i will explain as i know it.
If you have understood it, you can be the judge of whether my intuitive response
to your bare vague statement is on the mark or off the mark. So too can others be
the judge of it. -) -) -)
Yi Ling
Malaysia

Saturday August 17, 2002 at 8:08 pm
Sad Sam,
To your statement, on Saturday August 17, 2002 at 11:14 am, "...The apocalypse
44
threatens. Think, suggest, pause for reflection, wait for several thoughtful
responses before waving the baton." you might want to read or re-read the
discussion archive postings from Friday April 12, 2002 at 9:47 am to Wednesday
July 17, 2002 at 6:16 pm and then here , the more recent records, from
Wednesday July 17, 2002 at 11:30 pm to yours of Friday August 16, 2002 at
11:48 am
and then maybe, if you wish then, reconsider or re-evaluate your statement made.
Yi Ling
Malaysia

Sunday August 18, 2002 at 12:02 am
In an attempt to bring the discussion back closer to Israeli/Palestinians issues, I
would like to briefly address the question that Ms. Lu raised in her post on
August 6th. I am sure it is not much of a surprise to any one that the two biggest
issues that separate Israelis and Palestinians are the right of return for Palestinian
refugees and the status of Jerusalem. Israelis can not possibly allow millions of
Palestinians to return to their land within Israel proper. It would destabilize the
country and threaten the Jewish character of the state. Palestinians could not
hope to sell peace to the general Palestinian masses outside of the Occupied
Territories (which number in the millions) without promoting the right of return.
With regard to Jerusalem, even the British, at the time of the Balfour
Declaration, felt that its status is sufficiently sensitive to a great deal of people,
even outside of Mandate Palestinian, that they always tried to carve it out from
any promise of statehood or partition plan. Both Israelis and Palestinians hold
strong views with regard to control of Jerusalem for largely the same reasons.
Even if Palestinians do not feel strongly about Jerusalem, there are a sufficient
number of Muslim states that do. States whose financial and political support a
fledgling Palestinian state will need.
I believe that in discussions at Taba and some earlier meetings, the solution to
the right of return issue was at hand. It was, and will always be, evident that
Israelis can not offer any compromise with respect to physical return of refugees.
However, the issue of compensation for those refugees with legitimate claims to
property within Israel proper emerged as a plausible alternative.
With respect to Jerusalem, my point of departure with Dr. Pundak’s
recommendations is that I do not believe that separation of the city will work.
Like the British, I believe that the only plausible solution is separation of
Jerusalem from both Israel and Palestine following the Vatican model.
It is inconceivable to me that there can be peace between Israelis and Palestinians
until they both regard each other as equal. There was a serious attempt to take
this approach by late Prime Minister Rabin and his negotiating team during the
Oslo process, an attempt that President Arafat responded to very positively
45
resulting in a historic accord between the two peoples. What followed this event
was a regression to the old views that kept both peoples at each other’s throats
for decades.
Sameh Mobarek
Loyola University Law School
Chicago, Illinois, USA

Wednesday September 04, 2002 at 10:05 am
Leighton Professor of Law Anthony D'Amato – “The Palestinian Mandate, of
course, remained intact, just as a trust remains intact even though the supervising
judge or even the trustee may change.”
If the trust remains intact, how is it that it is excluded from the list of trust
territories of UN Trusteeship Council? (see Lists of Non-Self-GoverningTerritories since 1945: compiled by UN : - Trust and Non-Self-Governing
Territories, 1945-present - Non-Self-Governing Territories listed by General
Assembly - Trust Territories that have achieved self-determination http://www.un.org/Depts/dpi/decolonization/docs.htm
Yi Ling
Malaysia

Wednesday September 04, 2002 at 11:47 am
With the over 50-60 pages from 18/8/2002 to 3/9/2002 analysis removed, can
you also remove the followingFriday August 16, 2002 at 9:24 pm, Saturday August 17, 2002 at 5:47 am,
Saturday August 17, 2002 at 9:12 am, Saturday August 17, 2002 at 10:29 am,
Saturday August 17, 2002 at 11:14 am, Saturday August 17, 2002 at 11:20 am,
Saturday August 17, 2002 at 11:37 am, Saturday August 17, 2002 at 8:08 pm
otherwise the above postings have no follow through linear analysis
Yi Ling
Malaysia

Wednesday September 04, 2002 at 11:56 am
Accidental removal? It is just correcting a spotted error. There can be a positive
meaning of 'abstention' , that, where parties have an interest, they abstain from
voting.
Wednesday September 04, 2002 at 9:49 am-Leighton Professor of Law Anthony
46
D'Amato – “Instead, as soon as Resolution 181 was passed (and of course Great
Britain voted in its favor), the legal borders between Israel and Palestine were
forever fixed.” I am sorry but UK (i.e. Great Britain) together with 9 others
“abstained”
This is the voting pattern for the UN GAR 181.
(1) In favour: 33 -Australia, Belgium, Bolivia, Brazil, Byelorussian S.S.R.,
Canada, Costa Rica, Czechoslovakia, Denmark, Dominican Republic, Ecuador,
France, Guatemala, Haiti, Iceland, Liberia, Luxemburg, Netherlands, New
Zealand, Nicaragua, Norway, Panama, Paraguay, Peru, Philippines, Poland,
Sweden, Ukrainian S.S.R., Union of South Africa, U.S.A., U.S.S.R., Uruguay,
Venezuela.
(2) Against: 13-Afghanistan, Cuba, Egypt, Greece, India, Iran, Iraq, Lebanon,
Pakistan, Saudi Arabia, Syria, Turkey, Yemen.
(3) Abstained: 10 -Argentina, Chile, China, Colombia, El Salvador, Ethiopia,
Honduras, Mexico, United Kingdom, Yugoslavia.
Yi Ling, Malaysia
Yi Ling
Malaysia

Wednesday September 04, 2002 at 12:03 pm
Consider again before removing this Wednesday September 04, 2002 at 9:55 am
- Leighton Professor of Law Anthony D'Amato - “The State of Israel owes its
entire legal existence to the proper exercise by Great Britain of its League of
Nations' Mandatory Power over the territory of Palestine.” “Legal title to the land
was not conferrred by Resolution 181 alone but rather by Great Britain's
acceptance of the terms of Resolution 181.”
If so, then it would be logical that Great Britain would have recognized Israel
immediately on 14 May 1948, when the Mandate expired and Israel declared
independence. Does not Great Britain’s delay in recognizing Israel for almost 2
years (the war years) to 27 April 1950 coincide with the passing of the Statute for
the City of Jerusalem of 4 April 1950 and after the several armistice agreements
have been signed with the Arab states by mid 1949 (see British Consulate
General : Jerusalem a Background.
http://www.britishconsulate.org/chancery/jru.htm “…Britain did not recognise
Israel until 27 April 1950, simultaneously with its recognition of Jordan, which
had just annexed the West Bank. But it did not recognise either Israeli or
Jordanian sovereignty over the area of the corpus separatum, although it did
recognise that each exercised “ de facto authority” in its respective sector. Israel
47
replied that Israeli-occupied Jerusalem was an integral part of the State…)
Consider that this is rebutting a legal argument by the esteemed International
Law Professor on “ Great Britain's acceptance of the terms of Resolution 181.”
Maybe the esteemed International Law Professor has a legal rebuttal to this ?
Healthy debate and critical thinking should be encouraged.
Yi Ling
Malaysia

Wednesday September 04, 2002 at 12:53 pm
Rebuttal to Anthony D'Amato is the Leighton Professor of Law at Northwestern
University School of Law, April 8, 2002 “essay on the legal boundaries of the
State of Israel”.
(1) Anthony D'Amato says, “…Great Britain could not simply abandon its
responsibilities to the people of Palestine. It could only relinquish its trusteeship
responsibilities if it left the people of Palestine in a viable self-governing
position.”
I will agree that records suggest that Great Britain did think they could not
simply abandon its responsibilities to the people of Palestine, and that is why
they only recognized Israel and Jordan’s claim to the original allotted “Arab”
state of Palestine on 27 April 1950 and not immediately on 15 May 1948, when
the Mandate ended and Israel declared her independence.
Records also show that arising from “Great Britain’s responsibilities to the
people of Palestine” Great Britain chose to wait to 27 April 1950 as by then, 3
important things had happened.
1st-Israel had declared her independence on 15 May 1948 on the allotted 55%
Mandate Palestine for Israel.
2nd- The 2 years war between Israel and the Arab states had ended and the
armistice agreements had been signed by mid 1949 , altering the de facto control
from 55% to 78% Mandate Palestine for Israel.
3rd - Great Britain as a permanent member of the UN Security Council together
with all the other permanent members of the UN Security Council, collectively
sitting as the UN Trusteeship Council, had on 4 April 1950 approved the detailed
Statute for the City of Jerusalem, for the corpus separatum in the UN GAR 181.
Thus by 27 April 1950, Great Britain perceived that she had discharged her
48
responsibilities to the people of Palestine and could thus relinquish her
trusteeship responsibilities as she was leaving the people of Palestine in a viable
self-governing position, with Israel on 78% Mandate Palestine, Jordan (with
Egypt) on the 22% Mandate Palestine, ceasefire between Israel and the Arab
states signed and sealed, and the City of Jerusalem endowed with the necessary
Statute for the City of Jerusalem.”
Like all best laid plans, some things go amiss1st- Both Jordan and Israel did not agree to the UN Trusteeship Council’s
approval on the detailed Statute for the City of Jerusalem on 4 April 1950. Jordan
ignored the Statute for the City of Jerusalem while Israel went the route of
insisting on a General Assembly Resolution, which did not obtain the necessary
majority.
2nd- The 1967 war took place, and Israel occupied the remaining 22% Mandate
Palestine.
3rd- Even the Oslo I (1993-1999) did not result in a negotiated borders by July
2000, Camp David II Summit.
Post 1967, the detailed Statute for the City of Jerusalem approved on 4 April
1950, seems to have taken a back seat with the world prepared to consider and
accept an International Guarantee for the City of Jerusalem.
Yi Ling
Malaysia

Wednesday September 04, 2002 at 8:06 pm
Palestine was a "Class A" League of Nations Mandate, scheduled for
independence as soon as possible. None of the "Class A" mandates -- Iraq, Syria,
Lebanon, Trans-Jordan and Palestine -- ever became United Nations Trust
Territories. Britain brought the question of the disposition of the Palestine
Mandate before the General Assembly because of a previous commitment to
consult the League on any change to the Mandate's staus. Although Britain
reccomended the partition of the mandate, she abstained from voting on
Resolution 181. Britain recognized Israel's independence on 29 January 1949, at
a time when Israel claimed the 1947 partition lines as her boundaries. On 27
April 1950, Britain granted de facto recognition to Israeli and Jordanian
annexations up to the 1949 armistice line, except for Jerusalem. The proposed
corpus seperatum in Jerusalem was never set up, because both Israel and Jordan
refused permission for the Trusteeship Council to administer their sectors of the
city.
Mike Anderson
Toronto, Canada
49

Wednesday September 04, 2002 at 8:39 pm
Mike Anderson’s “Britain recognized Israel's independence on 29 January 1949,
at a time when Israel claimed the 1947 partition lines as her boundaries. On 27
April 1950, Britain granted de facto recognition to Israeli and Jordanian
annexations up to the 1949 armistice line, except for Jerusalem.”
Further below I reproduce 1 page from the British Consulate on Jerusalem http://www.britishconsulate.org/chancery/jru.htm - and immediately below I
extract 3 points from there, that contradict some of your view points.
3 points extracted from Jerusalem : A Background
(1) “No practical progress had been made towards implementing the partition
plan when, on 14 May 1948, Britain relinquished the Mandate, in accordance
with the provisions of UN General Assembly (UNGA) Resolution 181 (ii), and
the State of Israel was declared. It was quickly recognised by both the United
States and the Soviet Union.”
(2) “Britain did not recognise Israel until 27 April 1950, simultaneously with its
recognition of Jordan, which had just annexed the West Bank.”
(3) “But it did not recognise either Israeli or Jordanian sovereignty over the area
of the corpus separatum, although it did recognise that each exercised “ de facto
authority” in its respective sector.”
Full extract- Jerusalem : A Background
“Four hundred years of Turkish rule were ended when General Allenby, the
British military commander, accepted the surrender of Jerusalem from the
Turkish Governor in December 1917. From that date until the operation of the
Mandate, in September 1922, under the Covenant of the League of Nations,
Palestine, including Jerusalem, remained under British military administration.
The San Remo Peace Conference of 1920 assigned to Britain the Mandate for
Palestine.
The Mandate document, approved by the League in July 1922, incorporated the
Balfour Declaration of November 1917, and charged the Mandatory to secure the
Jewish National Home while safeguarding the civil and religious rights of all
inhabitants of Palestine, irrespective of race and religion. The rising rate of
Jewish immigration into Palestine, in furtherance of the Balfour Declaration, led
to serious disorder in 1920, 1921, 1929 and 1936. Jerusalem was the scene of
many of the riots.
After Britain referred the now unworkable Palestine Mandate to the new United
Nations Organisation, the UN produced its General Assembly Resolution 181 of
50
November 1947, which provided for a “Plan of Partition with Economic Union”,
and laid down detailed steps for bringing both Arab and Jewish States to
independence. The Resolution recognised the special place of Jerusalem in the
conflict between Arab and Jew, withholding the city and its surroundings from
the partition in a corpus separatum, to be under a special regime sponsored by the
UN and administered by its Trusteeship Council.
No practical progress had been made towards implementing the partition plan
when, on 14 May 1948, Britain relinquished the Mandate, in accordance with the
provisions of UN General Assembly (UNGA) Resolution 181 (ii), and the State
of Israel was declared. It was quickly recognised by both the United States and
the Soviet Union. By the end of the Mandate some 400,000 Arabs had already
become refugees in surrounding Arab States, and this number was increased by
subsequent fighting between Israel and those States. Israel's victories left her in
possession of more territory than the partition plan had allotted her, but events
were now determined by the de facto progress of military action on the ground.
When the 1949 round of armistice agreements was concluded at Rhodes, Israel
also held new Jerusalem and rejected any idea of the internationalisation of the
city. The armistice agreements left Jordan in control of territory not occupied by
Israel, and the now familiar outlines of the West Bank thus appeared on the
Middle Eastern map. The fighting divided Jerusalem into the western, Israeliheld new city and the eastern, Arab-held old city. However, the legal position is
that the divided area is that of the corpus separatum, as defined in the UN
Resolutions, and not (as often supposed) the much smaller municipal boundaries
contained within it. Both are divided by the 1949 armistice line, which has never
had the status of an international frontier.
Britain did not recognise Israel until 27 April 1950, simultaneously with its
recognition of Jordan, which had just annexed the West Bank. But it did not
recognise either Israeli or Jordanian sovereignty over the area of the corpus
separatum, although it did recognise that each exercised “ de facto authority” in
its respective sector. Israel replied that Israeli-occupied Jerusalem was an integral
part of the State. On 26 December 1949 Israel declared West Jerusalem its
capital. "Jerusalem," stated Israeli Prime Minister David Ben Gurion, "is an
inseparable part of Israel, and her eternal capital. No United Nations vote can
alter that historic fact."
Shortly afterwards, Israeli Government ministries began moving to West
Jerusalem, so beginning the practical problems, for the British and other
governments, of not recognising Israel's claim to Jerusalem as her capital. Those
staying in Tel Aviv were the Defence Ministry, which chose to remain there, as it
continues to do today, for security reasons, and the Foreign Ministry. The latter
eventually moved to Jerusalem in 1953. Britain, with other nations, protested,
whereupon the Israelis agreed to set up a liaison office of the ministry in Tel
Aviv, at which the Minister and senior officials would make themselves
51
frequently available. This arrangement went increasingly by Israeli default, and
the liaison office closed in July 1962.”
Mike, if you have records that substantiate your contradictory view point, maybe
you might want to produce them for viewing to rebut the British Consulate view
points or statement of their facts.
Yi Ling
Malaysia

Wednesday September 04, 2002 at 9:08 pm
Mike Anderson’s “Palestine was a "Class A" League of Nations Mandate,
scheduled for independence as soon as possible. None of the "Class A" mandates
-- Iraq, Syria, Lebanon, Trans-Jordan and Palestine -- ever became United
Nations Trust Territories. Britain brought the question of the disposition of the
Palestine Mandate before the General Assembly because of a previous
commitment to consult the League on any change to the Mandate's staus.”
None of the states you mention including Palestine appears in any of the 3
extensive Lists of Non-Self-Governing-Territories since 1945: compiled by UN :
- Trust and Non-Self-Governing Territories, 1945-present - Non-Self-Governing
Territories listed by General Assembly - Trust Territories that have achieved
self-determination - http://www.un.org/Depts/dpi/decolonization/docs.htm
Here I produce the “United States Proposal for Temporary United Nations
Trusteeship for Palestine- Statement by President Truman, March 25, 1948” at
http://www.yale.edu/lawweb/avalon/decade/decad167.htm
“It is vital that the American people have a clear understanding of the position of
the United States in the United Nations regarding Palestine.
This country vigorously supported the plan for partition with economic union
recommended by the United Nations Special Committee on Palestine and by the
General Assembly. We have explored every possibility consistent with the basic
principles of the Charter for giving effect to that solution. Unfortunately, it has
become clear that the partition plan cannot be carried out at this time by peaceful
means. We could not undertake to impose this solution on the people of Palestine
by the use of American troops, both on Charter grounds and as a matter of
national policy.
The United Kingdom has announced its firm intention to abandon its mandate in
Palestine on May 15. Unless emergency action is taken, there will be no public
authority in Palestine on that date capable of preserving law and order. Violence
and bloodshed will descend upon the Holy Land. Large-scale fighting among the
people of that country will be the inevitable result. Such fighting would infect the
52
entire Middle East and could lead to consequences of the gravest sort involving
the peace of this Nation and of the world.
These dangers are imminent. Responsible governments in the United Nations
cannot face this prospect without acting promptly to prevent it. The United States
has proposed to the Security Council a temporary United Nations trusteeship for
Palestine to provide a government to keep the peace. Such trusteeship was
proposed only after we had exhausted every effort to find a way to carry out
partition by peaceful means. Trusteeship is not proposed as a substitute for the
partition plan but as an effort to fill the vacuum soon to be created by the
termination of the mandate on May 15. The trusteeship does not prejudice the
character of the final political settlement. It would establish the conditions of
order which are essential to a peaceful solution.
If we are to avert tragedy in Palestine, an immediate truce must be reached
between the Arabs and Jews of that country. I am instructing Ambassador Austin
to urge upon the Security Council in the strongest terms that representatives of
the Arabs and Jews be called at once to the council table to arrange such a truce.
The United States is prepared to lend every appropriate assistance to the United
Nations in preventing bloodshed and in reaching a peaceful settlement. If the
United Nations agrees to a temporary trusteeship, we must take our share of the
necessary responsibility. Our regard for the United Nations, for the peace of the
world, and for -our own self-interest does not permit us to do less.
With such a truce and such a trusteeship, a peaceful settlement is yet possible;
without them, open warfare is just over the horizon. American policy in this
emergency period is based squarely upon the recognition of this inescapable fact.
Notes: (1) Department of State Bulletin, vol. 18, No. 457, April 4, 1948, p. 451.”
(Source: A Decade of American Foriegn Policy : Basic Documents, 1941-49.
Prepared at the request of the Senate Committee on Foreign Relations. By the
Staff of the Committe and the Department of State. Washington, DC :
Government Printing Office, 1950)”
If I read this together with another document, “UNITED NATIONS- Trusteeship
Council- T/592 of 4 April 1950 - Dual Distribution - Sixth Session- Item 19 of
the Agenda, STATUTE FOR THE CITY OF JERUSALEM - Approved by the
Trusteeship Council at the eighty-first Meeting on 4 April 1950.” at
http://domino.un.org/UNISPAL.NSF/
db942872b9eae454852560f6005a76fb/cfb4e24b3
99e8efd8525644a007972e1!
OpenDocument
was there not a trust , otherwise how would the UNITED NATIONSTrusteeship Council approve the STATUTE FOR THE CITY OF JERUSALEM
53
at the eighty-first Meeting on 4 April 1950?
The preamble of the Statute is produced with article 1 for ease of referencePreamble
WHEREAS the General Assembly of the United Nations in its Resolution
181(II) of 29 November 1947, laid down that the City of Jerusalem, as delimited
in that Resolution, should be established as a corpus separatum under a Special
International Regime and should be administered by the United Nations:
WHEREAS the General Assembly designated the Trusteeship Council to
discharge the responsibilities of the Administering Authority on behalf of the
United Nations:
WHEREAS the special objectives to be pursued by the United Nations in
discharging its administrative obligations were set forth in the aforesaid
Resolution as follows:
"(a) To protect and to preserve the unique spiritual and religious interests located
in the City of the three great monetheistic faiths throughout the world, Christian,
Jewish and Moslem; to this end to ensure that order and peace, and especially
religious peace, reign in Jerusalem;
"(b) To foster cooperation among all the inhabitants of the City in their own
interests as well as in order to encourage and support the peaceful development
of the mutual relations between the two Palestinian peoples throughout the Holy
Land; to promote the security, well-being and any constructive measures of
development of the residents, having regard to the special circumstances and
customs of the various peoples and communities":
WHEREAS the General Assembly in the aforesaid Resolution directed the
Trusteeship Council to elaborate and approve a detailed Statute for the City and
prescribed certain provisions, the substance of which should be contained
therein:
WHEREAS the Trusteeship Council prepared on 21 April 1948 the Draft Statute
for the City of Jerusalem (Document T/118/Rev.2):
WHEREAS the General Assembly of the United Nations, in its Resolution
194(III) of 11 December 1948 resolved that a special treatment separate from
that accorded to the rest of Palestine should be accorded to the Jerusalem area
and that it should be placed under effective United Nations control:
WHEREAS the General Assembly of the United Nations, in its Resolution 303
(IV) of 9 December 1949 restated "its intention that Jerusalem should be placed
54
under a permanent international regime, which should envisage appropriate
guarantees for the protection of the Holy Places, both within and outside
Jerusalem", and requested the Trusteeship Council to "complete the preparation
of the Statute of Jerusalem (T/118/Rev.2), omitting the now inapplicable
provisions" and, "without prejudice to the fundamental principles of the
international regime for Jerusalem set forth in the Resolution of 29 November
1947 introducing therein amendments in the direction of its greater
democratization, approve the Statute, and proceed immediately with its
implementation":
THE TRUSTEESHIP COUNCIL, IN PURSUANCE OF the aforesaid
Resolutions,APPROVES the present Statute for the City of Jerusalem.
Article 1- Special International Regime: The present Statute defines the Special
International Regime for the City of Jerusalem and constitutes it as a corpus
separatum under the administration of the United Nations.
……….continue /- to article (7) http://domino.un.org/UNISPAL.NSF/
db942872b9eae454852560f6005a76fb/
cfb4e24b399e8efd8525644a007972e1!OpenDocument
Yi Ling
Malaysia


Wednesday September 04, 2002 at 9:41 pm
"confidential British Foreign Office Political Correspondence" states that "On
January 29, 1949, Britain recognized the State of Israel..." The location is:
http://www.lexisnexis.com/academic/2upa/
Imes/cbfopcPalestineTransjordan.htm
Mike Anderson
Toronto, Canada
Wednesday September 04, 2002 at 11:04 pm
If your record is more accurate then, this error, in the British Consulate web site
appears to be reflected too in other sites . Example of 1950- "Britain recognises
Israel Example (1) see http://www.bbc.co.uk/radio3/
speech/paris/timeline1950.shtml
Example (2) see http://vietnamnews.vnagency.com.vn/
2002-04/27/Columns/In%20History.htm
55
Britain should set her record right either way.
Earlier on Wednesday September 04, 2002 at 11:56 am, I said, “I am sorry but
UK (i.e. Great Britain) together with 9 others “abstained” . Since then I note that
there is a difference between the United Kingdom and Great Britain.
What is the difference between the United Kingdom and Great Britain?
http://www.britemb.org.il/information/FAQSfacts.html#1
”The United Kingdom is made up of the countries of England, Scotland, Wales
and northern Ireland. Its full name is the United Kingdom of Great Britain and
Northern Ireland. Great Britain, on the other hand, comprises only England,
Scotland and Wales. It is the largest island of the British Isles. Northern Ireland
and the Irish Republic form the second largest island.
The Isle of Man and the Channel Islands are not part of the United Kingdom.
They are largely self-governing with their own legislative assemblies and
systems of law. The British Government is, however, responsible for their
defence and international relations.
We use "Britain" to informally mean the United Kingdom of Great Britain and
Northern Ireland. “
Yi Ling
Malaysia

Wednesday September 04, 2002 at 11:50 pm
Mike Anderson, a side note- on the conflicting dates of recognition. It may have
to do with different kinds of recognition as for USA vis a vis Israel.
From the records of “The United States and the Recognition of Israel: A
Chronology” Compiled by Raymond H. Geselbracht from Harry S. Truman and
the Founding of Israel (Westport, Connecticut, 1997) by Michael T. Benson at
http://www.trumanlibrary.org/israel/palestin.htm and updated to October 25,
2000;
it appears that there are 2 kinds of state recognition of another- the ‘de facto’ and
the de jure’
In the case of USA, the ‘de facto’ was on 14 May 1948 while the ‘de jure’ was
on 25 January 1949, see below”May 14, 1948: late morning eastern standard time (late afternoon in Palestine):
David Ben-Gurion, Israel's first prime minister, reads a "Declaration of
Independence," which proclaims the existence of a Jewish state called Israel
56
beginning on May 15, 1948, at 12:00 midnight Palestine time (6:00 p.m., May
14, 1948,eastern standard time).
May 14, 1948, 6 p.m. eastern standard time (12:00 midnight in Palestine): The
British mandate for Palestine expires, and the state of Israel comes into being.
May 14, 1948, 6:11 p.m. eastern standard time: The United States recognizes
Israel on a de facto basis. The White House issues the following statement: "This
Government has been informed that a Jewish state has been proclaimed in
Palestine, and recognition has been requested by the provisional government
thereof. The United States recognizes the provisional government as the de facto
authority of the State of Israel." To see a color copy of this document click here.
http://www.trumanlibrary.org/photos/israel.jpg
January 25, 1949: A permanent government takes office in Israel following
popular elections.
January 31, 1949: The United States recognizes Israel on a de jure basis. “
Further see http://www.trumanlibrary.org/israel/timeline.htm - “UN Resolution
181, defined the outline of a settlement in Palestine creating both a Jewish and a
Palestinian homeland. The 1947 UN Partition divided the area into three entities:
a Jewish state, an Arab state, and an international zone around Jerusalem.
At midnight on May 14, 1948, the Provisional Government of Israel proclaimed
the new State of Israel. On that same date the United States, in the person of
President Truman, recognized the provisional Jewish government as de facto
authority of the new Jewish state (de jure recognition was extended on January
31). The U.S. delegates to the U.N. and top ranking State Department officials
were angered that Truman released his recognition statement to the press without
notifying them first. On May 15, 1948, the Arab states issued their response
statement and Arab armies invaded Israel and the first Arab-Israeli war began.”
Yi Ling
Malaysia


Thursday September 05, 2002 at 12:06 am
That is correct. Britain granted de facto recognition to Israel in January, 1949,
and de jure recognition in April 1950.
Mike Anderson
Toronto, Canada
Thursday September 05, 2002 at 1:01 am
Mike Anderson, as you have determined that is correct, (Thursday September 05,
2002 at 12:06 am-That is correct. Britain granted de facto recognition to Israel in
57
January, 1949, and de jure recognition in April 1950.” could you extend us the
record of your findings.
If you have determined that is correct, ( and provided it is correct and
substantiated) then the different position between USA and Britain, lends
credence to the notion of Britain's unique responsibility to the trusteeship of the
Palestine,
and which may be why, Britain waited till after the signing of the several
armistice agreements between Israel and the Arab states (by mid 1949)
and the approval of the Statute for the City of Jerusalem by 4 April 1950
before granting de jure ('legal') recognition to Israel on 27 April 1950.
In contrast, USA waited for the formally elected government of Israel to take
office on 25 Jan 1949 before granting de jure recognition of Israel on 31 Jan
1949.
In comparison, Britain waited for the Israeli formally elected government of
Israel to take office on 25 Jan 1949, before granting de facto recognition to Israel
on 29 Jan 1949.
That being the case, the records of the British Consulate & BBC News now
appears to be again legally correct, as recognition is legally thought of as de jure
(legal) recognition.
Yi Ling
Malaysia

Thursday September 05, 2002 at 2:28 am
This topic on the Legal Boundaries of Israel deals with 3 and not 2 entities –
1st Israel
2nd Palestine
3rd International City of Jerusalem
per UN GAR 181.
The prior comments to mid August 2002 dealt more with the borders between the
2 out of 3 entities. That is it dealt with the borders between Israel and Palestine.
This final posting attempts to end with the issue of the legal borders on the
58
Corpus Separatum of the City of Jerusalem per UN GAR 181 of 1947 , UN GAR
303 (IV) of 1949 and Statute for the City of Jerusalem 4 April 1950 by an update
of the status of the Statute for the City of Jerusalem 4 April 1950.
Immediately after the 2 years’ War between Israel and the Arab states, the
Christian communities were still hopeful for the Corpus Separatum of the City of
Jerusalem per UN GAR 181 of 1947, UN GAR 303 (IV) of 1949 and Statute for
the City of Jerusalem 4 April 1950, as was all the permanent members of the UN
Security Council sitting as the UN Trusteeship Council on 4 April 1950.
As Mike Anderson has also pointed out on Wednesday September 04, 2002 at
8:06 pm, “…The proposed corpus seperatum in Jerusalem was never set up,
because both Israel and Jordan refused permission for the Trusteeship Council to
administer their sectors of the city.”
and by 1994, an official record of the heads of the Christian Communities in
Jerusalem, shows concretely an acceptance of the worldly realities- the Christian
communities have collectively abandoned the “Corpus Separatum” aspect of the
City of Jerusalem per UN GAR 181, 303 (IV) and Statute for the City of
Jerusalem 4 April 1950. Though the Heads of Christian communities in
Jerusalem refer to a “special judicial and political stature for Jerusalem” it is not
necessarily the same as the “special judicial and political stature for Jerusalem”
per the Statute for the City of Jerusalem.
Reproduced below the key item of the said “MEMORANDUM OF THEIR
BEATITUDES THE PATRIARCHS AND OF THE HEADS OF THE
CHRISTIAN COMMUNITIES IN JERUSALEM ON THE SIGNIFICANCE OF
JERUSALEM FOR CHRISTIANS, November 14, 1994”. The full Memorandum
can be read at http://www.al-bushra.org/hedchrch/memorandum.htm
Para 14 MEMORANDUM OF THEIR BEATITUDES THE PATRIARCHS
AND OF THE HEADS OF THE CHRISTIAN COMMUNITIES IN
JERUSALEM - Special Stature for Jerusalem- All this presupposes a special
judicial and political stature for Jerusalem which reflects the universal
importance and significance of the city.
(1) In order to satisfy the national aspirations of all its inhabitants, and in order
that Jews, Christians and Muslims can be "at home" in Jerusalem and at peace
with one another, representatives from the three monotheistic religions, in
addition to local political powers, ought to be associated in the elaboration and
application of such a special statute.
(2) Because of the universal significance of Jerusalem, the international
community ought to be engaged in the stability and permanence of this statute.
Jerusalem is too precious to be dependent solely on municipal or national
political authorities, whoever they may be. Experience shows that an
59
international guarantee is necessary.
Experience shows that such local authorities, for political reasons or the claims
of security, sometimes are required to violate the rights of free access to the Holy
Places. Therefore it is necessary to accord Jerusalem a special statue which will
allow Jerusalem not to be victimised by laws imposed as a result of hostilities or
wars but to be an open city which transcends local, regional or world political
troubles. This statute, established in common by local political and religious
authorities, should also be guaranteed by the international community” (end of
Para 14)
From this para (14) of the “MEMORANDUM OF THEIR BEATITUDES THE
PATRIARCHS AND OF THE HEADS OF THE CHRISTIAN COMMUNITIES
IN JERUSALEM” signed by Greek Orthodon Patriarch, Latin Patriarch,
Armenian Patriarch, Custos of the Holy Land, Coptic Archbishop, Syriac
Archbishop, Ethiopian Archbishop, Anglican Bishop, Greek-Cath. Patriarc.
Vicar, Lutheran Bishop, Maronite Patriarchal Vicar, Cath. Syriac Patriarc.Vicar,
in Jerusalem, Nov. 14, 1994, it can be seen that, the Christian communities call
for another special statute to international guarantee (guaranteed by the
international community) Jerusalem.
This “….proposed statute, established in common by local political and religious
authorities, should also be guaranteed by the international community” is not the
same as the approved Statute for the City of Jerusalem of 4 April 1950. I have
not sighted a draft of this “special statute” on international guarantee”, though it
is oft referred to, as it was again referred to in the Basic Agreement between the
Holy See and PLO on 15 Feb 2000. If anyone has sighted a copy of the draft of
this “special statute” on international guarantee, please contact me at
lu5798@hotmail.com.
BASIC AGREEMENT BETWEEN THE HOLY SEE AND THE PALESTINE
LIBERATION ORGANIZATION , signed February 15, 2000
”Preamble ..…Calling, therefore, for a special statute for Jerusalem,
internationally guaranteed, which should safeguard the following:
a. Freedom of religion and conscience for all.
b. The equality before the law of the three monotheistic religions and their
institutions and followers in the City.
c. The proper identity and sacred character of the City and its universally
significant, religious and cultural heritage.
d. The Holy Places, the freedom of access to them and of worship in them.
60
e. The Regime of "Status Quo" in those Holy Places where it applies; …”
Finally for those who think that the “City of Jerusalem” and Jerusalem mean the
same thing, please note that the former has a statutory meaning, which is more
than Jerusalem. It is said to be
“The City of Jerusalem shall include the present municipality of Jerusalem plus
the surrounding villages and towns, the most eastern of which shall be Abu Dis;
the most southern Bethlehem; the most western, Ein Karim (including also the
built-up area of Motsa); and the most northern, Shu'fat,”
With the passage of time from 1947 UN GAR 181 and 4 April 1950 on this
statutory definition of the City of Jerusalem, it is now unclear whether the
HEADS OF THE CHRISTIAN COMMUNITIES IN JERUSALEM” represented
by Greek Orthodon Patriarch, Latin Patriarch, Armenian Patriarch, Custos of the
Holy Land, Coptic Archbishop, Syriac Archbishop, Ethiopian Archbishop,
Anglican Bishop, Greek-Cath. Patriarc. Vicar, Lutheran Bishop, Maronite
Patriarchal Vicar, Cath. Syriac Patriarc.Vicar, in Jerusalem, Nov. 14, 1994, have
the same definition of the City.
Yi Ling
Malaysia


Thursday September 05, 2002 at 7:37 am
General Assembly Resolution 43/177 of December 1988 does not even mention
the special international regime over Jerusalem, and calls for Palestinian
sovereignty over "THE territories occupied since 1967 (emphasis added)", which
presumably includes East Jerusalem. The attempt by the General Assembly to set
up a special international regime in Jerusalem who have to be considered
terminated by 1988, and was probably abandoned many years before this. UN
Resolution 181 placed Jerusalem under the Trusteeship Council, whose
operations were suspended in 1994 because there were no more trusteeships to
administer.
Mike Anderson
Toronto, Canada
Thursday September 05, 2002 at 8:35 am
It takes time to digest the full import and impact of Leighton Professor of Law
Anthony D'Amato’s persistent and consistent key and novel argument and thesis
on Monday May 06, 2002 at 3:33 pm: “First, legal title assuredly did not pass to
the State of Israel in 1948. Two states were contemplated in Resolution 181--a
Jewish state and an Arab state. You can't just wipe out the Arab state. Second,
the "termination of British rule" is not determinative of the existence of the
Mandate for the same reason that a particular trustee is not essential to the
continued operation of a trust. Third, the international boundaries do indeed
61
exist, precisely as they were spelled out in Resolution 181--or to put it perhaps
more accurately, either internatinoal boundaries exist or the Mandate itself is still
in existence. But in either case, the only legal borders between Israel and
Palestine are those contained in Resolution 181, and nothing subsequent to 1947
has changed the legal situation (the military situation, of course, is entirely
different)….”
Yi Ling ‘s reply to Leighton Professor of Law Anthony D'Amato’s post of
Monday May 06, 2002 at 3:33 pm :(1) In ordinary private trust, once a trust is declared, the only way the trust can be
terminated is through the discharge of the trust by transferring the trust property
to the beneficiary. In commercial practice, that means signing the transfer ( of
title) documents and paying the stamp duty for the transfer to the beneficiary
from the trustee. There is no other way to terminate the trust.
Following Leighton Professor of Law Anthony D'Amato’s point, “…for the
same reason that a particular trustee is not essential to the continued operation of
a trust....” , it is the law, that if even if the trustee dies, the trust remains. The
trust property has to be transferred to the beneficiary for the trust to terminate.
(2) This begs the question whether the Mandate is a trust, where trust laws
operate, especially when Mike Anderson informs us, on Wednesday September
04, 2002 at 8:06 pm that “….Palestine was a "Class A" League of Nations
Mandate, scheduled for independence as soon as possible. None of the "Class A"
mandates -- Iraq, Syria, Lebanon, Trans-Jordan and Palestine -- ever became
United Nations Trust Territories….”
(3) Records of states and UN seem to give contradictory signals – on the trust
issue of the Mandate :(a) for ‘trust’ – Mandate as a trust and governed by trust laws as advised by
Leighton Professor of Law Anthony D'Amato
(b) not “trust” - USA attempted to have Palestine declared a temporary trust, for
if it were a trust, there would be no necessity to have it declared a temporary trust
; UN’s three (3) extensive Lists of Non-Self-Governing-Territories since 1945: Trust and Non-Self-Governing Territories, 1945-present - Non-Self-Governing
Territories listed by General Assembly - Trust Territories that have achieved
self-determination – did not include Palestine as a trust territory
If the Mandate is a trust, then why is this trust not treated like other trust
territories? Does it mean that Mike Anderson’s post of Wednesday September
04, 2002 at 8:06 pm- “Palestine was a "Class A" League of Nations Mandate,
scheduled for independence as soon as possible. None of the "Class A" mandates
-- Iraq, Syria, Lebanon, Trans-Jordan and Palestine -- ever became United
62
Nations Trust Territories.” mean that –
(a) "Class A" League of Nations Mandate, scheduled for independence as soon
as possible, are held under trust, even if they are not listed as United Nations
Trust Territories
(b) "Class A" League of Nations Mandate, scheduled for independence as soon
as possible, are not held under trust, and therefore they are not listed as United
Nations Trust Territories
Leighton Professor of Law Anthony D'Amato has led us to think that the
Mandate is a trust. The question is, “ Is it a trust ?”
Only if it is a trust, is it irrelevant that Palestine is not included under any of the
UN’s three (3) extensive Lists of Non-Self-Governing-Territories since 1945: Trust and Non-Self-Governing Territories, 1945-present - Non-Self-Governing
Territories listed by General Assembly - Trust Territories that have achieved
self-determination.
If it is a trust, it is irrelevant that USA attempts to create a temporary trusteeship
for Palestine may not have succeeded.
If it is a trust, it is also legally un-necessary for USA to attempt to create a
temporary trusteeship for Palestine as there is already a trust, which has not been
fully discharged as the trust property has not been transferred to the other 2
entities, Arab state of Palestine and UN administration of the International City
for Jerusalem .
Going back to the issue of the trust and transfer of title document, I refer to Mike
Anderson’s post of Thursday May 30, 2002 at 1:36 am- “While it is entirely
possible that UN Resolution 181 was a "trust instrument", which legally created
the boundaries demarcated in its text upon the expiration of the Mandate,….”
which seems to confuse the identity of the documents –
(a) Is the Mandate the trust document as I understand Professor of Law Anthony
D'Amato, but
(b) UN GAR 181 is the equivalent of the transfer of title document to discharge
the trust ?
If we follow Leighton Professor of Law Anthony D'Amato’s thesis then the “UN
Resolution 181 is NOT the "trust instrument” but the Mandate is the ‘trust
instrument’. Then the “UN Resolution 181 is akin to the transfer of title
document. Allow me to digress to commercial practice, and observe that, if we
have a “Trust Deed dated 1.1.1922” and the trust property is a piece of land. If it
is the Torrens System of Land tenure, then the “statutory Transfer (of title)
63
document if signed on 9.1.1947” in the instant case, will be the document to
discharge the trust . By this analogy, the Mandate of 1922 is equivalent to the
said “Trust Deed dated 1.1.1922” . By this analogy, the “statutory Transfer (of
title) document of 9.1.1947 ” is equivalent to the UN GAR 181 of 1947 .
I appear to be splitting hairs (as always!), but if we are to appreciate the full
import and impact of Leighton Professor of Law Anthony D'Amato’s persistent
and consistent key and novel argument, then , it means that the legal borders
have been given (ie already given ) legal effect to by the UN GAR 181. Thus he
says “In my opinion, this Resolution constitutes the first, last, and only legally
authorized demarkation of the Israeli-Palestine borders.”
However Leighton Professor of Law Anthony D'Amato has thrown some
spanners in the work, when he takes it or tries to take us all, one step further and
says in the same vein, that, “It was legally authoritative not because it took the
form of a UN Resolution, but solely because the UN Resolution itself served as a
ratification of the British proposal to divide the Mandate and leave its
governance to the people. In other words, the alpha and omega of the legal power
resided in Great Britain as the trustee and not in the United Nations.”
If we take the analogy of the “Trust Deed dated 1.1.1922” seriously as we do in
commercial practice, then the important party is the trustee who signs the transfer
of title document. I guess, in international law, and speaking as a lay person, the
trustee need not actually sign the transfer document. Here it is left to the UN GA
via UN GAR of 1947. But it underscores the point that, the trustee’s
recommendation, approval, consent is paramount. As Leighton Professor of Law
Anthony D'Amato says , “ .. the alpha and omega of the legal power resided in
Great Britain as the trustee and not in the United Nations.” and he also says that
“UN Resolution itself served as a ratification of the British proposal to divide the
Mandate and leave its governance to the people..”
It appears international law as argued by Leighton Professor of Law Anthony
D'Amato goes one way, that “UN Resolution itself served as a ratification of the
British proposal to divide the Mandate and leave its governance to the people..”
but UN thinks another way, and presumably the UN GA thought that they (and
not Britain were essential to approve or otherwise the UN GAR 181) .
The acid test of Leighton Professor of Law Anthony D'Amato’s thesis of
international law of trust under the Mandate with Britain as the trustee, whose
consent is paramount and all others consent (ie UN consent) is valid to the extent
that UN consent is a ratification of the Britain recommendation- is to see which
of the several plans for partition, in vogue then was recommended by Britain.
The million dollar question is , is the British recommendation of partition of
64
Palestine, the same one, as that actually approved by UN GA via UN GAR 181?
To S Sam, and his post of Friday August 16, 2002 at 11:48 am- “The spoon goes
round and round, stirring the soup. The eyes soon tire of following the spoon, but
the soup continues to be of interest. Be still, spoon.” I owe the ‘unlocking’ of my
pen-my mouth piece. Thank you, too, and salute S Sam , for the Garden of Eden,
possibly in Iraq.
Yi Ling
Malaysia

Thursday September 05, 2002 at 9:28 am
(1) The ACHILLES HEEL or WINNING STROKE of Leighton Professor of
Law Anthony D'Amato’s persistent and consistent key and novel argument and
thesis on “It was legally authoritative not because it took the form of a UN
Resolution, but solely because the UN Resolution itself served as a ratification of
the British proposal to divide the Mandate and leave its governance to the
people. In other words, the alpha and omega of the legal power resided in Great
Britain as the trustee and not in the United Nations.”
(2) First it is clear that more than one plan appears to have come from Britain. It
begs the question, why were they not accepted , or rather why the first plan
(think so) Royal Ciommission (Peel) Plan for the partition of Palestine, 1937 was
not proceeded with ? http://www.passia.org/palestine_facts/maps/
royal_ciommission_plan_for_the_partition_of_palestine_1937.htm
Partition of Palestine http://www.guardiancentury.co.uk/19301939/Story/0,6051,127111,00.html
Government approves of the Commission's plan - Thursday July 8, 1937“Partition of Palestine between Arabs and Jews and the termination of the
mandate are recommended by the Royal Commission, whose unanimous report
is published to-day.(Thursday July 8, 1937!)
The British Government, in a statement of policy, also issued to-day, accepts the
proposal. Partition on the general lines recommended "represents," it believes,
"the best and most hopeful solution of the deadlock."
After a transitional period it is proposed to set up two sovereign independent
States - an Arab State composed to Trans-Jordan and that part of Palestine
allotted to the Arabs, and a Jewish State consisting of the part of Palestine
allotted to the Jews.
Jerusalem and Bethlehem, with a corridor to the sea, would form part of a small
enclave to be reserved under a new British mandate. Jaffa would form an
65
outlying part of the new Arab State.”
(3) Question for Leighton Professor of Law Anthony D'Amato: If
recommendation of Britain is all that is necessary for the discharge of the trust,
why this statement, “The Royal Commission's report will now be taken to
Geneva. A special meeting of the Permanent Mandates Commission has been
summoned there for July 30. Mr. Ormsby-Gore, Secretary for the Colonies, and
Mr. J. M. Martin, the secretary of the Royal Commission, will attend. The
Geneva Commission will then report to the Council of the League. American
consent is necessary to any modification of the mandate.”
(4) Next comes one of the other plans, Woodhead Partition Plan 1938 ,
Recommended Boundaries C
http://www.passia.org/palestine_facts/MAPS/Woodhead-Partition.htm
(5)The same question, why were they not accepted if the paramount
consideration is that of the trustee Britain alone?
(6) Now we come to the only plan that Leighton Professor of Law Anthony
D'Amato refers to, which is that approved by UN GA via UN GAR 181 .
UN Partition Plan 1947 http://www.passia.org/palestine_facts/MAPS/
1947-un-partition-plan-reso.html
together with plan for Jerusalem as corpus separatum
http://www.passia.org/palestine_facts/
MAPS/images/jer_maps/UNPartition.html
(7) Does it mean that Leighton Professor of Law Anthony D'Amato’s argument
needs a further adjustment, that, the British government trustee has the right to
consult any others, and when Britain is satisfied this is ‘the plan’ that Britain’s
real recommendation is said to be obtained. Thus we should ‘legally’ ignore,
“Thursday July 8, 1937’s press statement that “The British Government, in a
statement of policy, also issued to-day, accepts the proposal. Partition on the
general lines recommended "represents," it believes, "the best and most hopeful
solution of the deadlock."
and reject this as a ‘real’ recommendation of Britain for the purpose of
international trust law.
Yi Ling
Malaysia

Thursday September 05, 2002 at 9:37 am
66
Mike Anderson,
The jury is out.
If Leighton Professor of Law Anthony D'Amato’s legal thesis on UN GAR 181
is correct in law, then the borders are decided at law already by UN GAR 181 in
1947 as it is the partition plan that was ‘REALLY ’ recommended by Britain and
thus as Professor of Law Anthony D'Amato’s says, the “UN Resolution itself
served as a ratification of the British proposal to divide the Mandate and leave its
governance to the people..”
then all other events from UN GAR 181 , that is any and all UN GAR xxx and
UN SCR zzz are all ‘red herrings’ as they call it in law schools.
We get no marks for falling for the red herrings! :-)
Yi Ling
Malaysia

Thursday September 05, 2002 at 11:18 am
While waiting for the Jury, let’s look at your issues, Mike. True, General
Assembly Resolution 43/177 of December 1988 did not even mention the special
international regime over Jerusalem, and calls for Palestinian sovereignty over
"THE territories occupied since 1967 (emphasis added).
Why? This is after 1967, where UN Security Council was then more interested in
affirming to Israel that the acquisition of territory by force is inadmissible, in
accordance with the United Nations Charter, the principles of international law,
and relevant Security Council resolutions.
This was after Hamas Covenant 1988 was passed on 18 August 1988, known as
“The Covenant of the Islamic Resistance Movement” **Caution: FAINT or
WEAK HEARTED should NOT read the full text of the Hamas Covenant 1988
http://www.yale.edu/lawweb/avalon/mideast/hamas.htm
So on the one hand, UN wanted Israel to leave the occupied territories, UN was
also aware of the dangers of the formenting Islamic resistance. See the Hamas
Covenant of 18 August 1998, just FOUR (4) MONTHS BEFORE your
mentioned UN GAR 43/77 of 15 December 1988 AND TWO MONTHS
BEFORE “The proclamation of the State of Palestine by the Palestine National
Council on 15 November 1988”
Maybe UN GAR 43/7’s “2. Affirms the need to enable the Palestinian people to
exercise their sovereignty over their territory occupied since 1967;” is to assuage
67
the Palestinians.
Maybe UN GAR 43/7’s “1. Acknowledges the proclamation of the State of
Palestine by the Palestine National Council on 15 November 1988;” is also to
recognize PLO over Hamas.
Looks like last quarter of 1988 was a period of intense activity for Palestine – 2
factions in Palestine vying for power –PLO and Hamas (1) 18 August 1988 - Hamas Covenant
(2) 15 November 1988 – PLO proclaims State of Palestine
(3) 15 December 1988 – UN GAR 43/77
Yi Ling
Malaysia


Thursday September 05, 2002 at 9:45 pm
In the Eastern Greenland Case (1931), the arbitrator ruled that a verbal
declaration by a responsible minister of the government was the legal equivalent
of a signature on a treaty. In 1949-50 responsible ministers of the Jordanian and
Israeli governments announced the annexation of all the territories up to the 1949
Armistice Demarcation Line, and the responsible minister of the mandatory
power, Britain, granted de facto recognition to these annexations. These acts
were, therefore, the same as if Britain, Israel and Jordan had signed a treaty in
which Britain partitioned the mandate and ceded it to Israel and Jordan. By
passing UNSCR 242 and UNGAR 43/177, both the Security Council and the
General Assembly recognized the legality of these acts of annexation. This
proves that the 1949 Armistice Demarcation Line is the legal international
boundary of Israel.
Mike Anderson
T
Thursday September 05, 2002 at 11:44 pm
“Legal international boundary of Israel” is a hard paper to take for any off
campus international law course!
Leighton Professor of Law Anthony D'Amato has a novel legal thesis that, in
essence Britain is the trustee and has the sole power to partition the Mandate in a
responsible manner, and it is partitioned per UN GAR 1947 on Britain’s
recommendation and ratified by UN GA.
You, Mr. Mike Anderson, now have another novel legal thesis that, in essence
Britain is the trustee and has the sole power to partition the Mandate in a
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responsible manner, and it is partitioned per “1949 Armistice Demarcation Line,
and the responsible minister of the mandatory power, Britain, granted de facto
recognition to these annexations” –
Mike, we may need to go check the date of “Britain’s granting de facto
recognition to these annexations” – was it before or after the precise date of the
1949 Armistice Demarcation Line? Is this issue relevant? Let’s go back and
check Leighton Professor of Law Anthony D'Amato’s development of his novel
thesis.
Ah! Mike, Leighton Professor of Law Anthony D'Amato says at para 5. of 8
April 2002 “On November 29, 1947, the General Assembly adopted the key
"partition" resolution, Resolution 181, ratifying the British proposals.” So in
Anthony D'Amato’s thesis, the proposal comes first from Britain (the trustee)
and then is ratified by UN GA per UN GAR 181.
But then, as we have seen, Britain went a few rounds with her partition plans
from 1937 to 1947 before 1 particular partition plan of 1947 took shape and
became the ‘real plan’ that Britain approved or recommended. Might we then say
that, likewise, your point of “Britain’s granting de facto recognition to these
annexations” is kind of equivalent to Anthony D'Amato’s thesis of Britain
recommended the Partition Plan as ratified by UN per UN GAR 181.
In the same vein, then, your thesis might be , “By passing UNSCR 242 and
UNGAR 43/177, both the Security Council and the General Assembly ratified
Britain’s recommendation of the de facto annexation. This proves that the 1949
Armistice Demarcation Line is the de facto international boundary of Israel.”
And not “ By passing UNSCR 242 and UNGAR 43/177, both the Security
Council and the General Assembly recognized the legality of these acts of
annexation. This proves that the 1949 Armistice Demarcation Line is the legal
international boundary of Israel.”
for the legal reason that Britain has only conferred de facto recognition of the
borders of 1949 between Israel and Jordan
and de facto recognition is not de jure recognition
At this stage, it looks like we both may scrap through this very difficult term
paper , with only 50.01% for Leighton Professor of Law Anthony D'Amato’s
internet international law course on “Legal international boundary of Israel”
unless you can do better than this …. : -)
Yi Ling
Malaysia
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
Friday September 06, 2002 at 12:20 am
Mike,
Less it be misunderstood, the foundation of my comment of Thursday September
05, 2002 at 11:44 pm , is Leighton Professor of Law Anthony D'Amato’s comments of Monday May 06,
2002 at 3:33 pm, "Third, the international boundaries do indeed exist, precisely
as they were spelled out in Resolution 181--or to put it perhaps more accurately,
either internatinoal boundaries exist or the Mandate itself is still in existence"
With his "...or to put it perhaps more accurately, either internatinoal boundaries
exist or the Mandate itself is still in existence"
we have room for exploring the prospect of " ...the Mandate itself is still in
existence"
and us your new novel thesis to penetrate Leighton Professor of Law Anthony
D'Amato’s novel thesis.
I suspect there is a point of convergence between your current raw new novel
thesis and Leighton Professor of Law Anthony D'Amato’s " Third, the
international boundaries do indeed exist, precisely as they were spelled out in
Resolution 181--or to put it perhaps more accurately, either internatinoal
boundaries exist or the Mandate itself is still in existence"
Yi Ling
Malaysia

Saturday September 07, 2002 at 2:14 am
Legal boundaries of Israel also needs to address the corpus separatum, as seen
from these British Consulate notesSource: http://www.britishconsulate.org/chancery/position.htm - “This
Demarcation line was not an international boundary, but was agreed "without
prejudice to future territorial settlements or boundary lines". In 1950 the UK
extended simultaneous de facto recognition to both Jordan and Israel, but
withheld recognition of sovereignty of either state over the corpus separatum as
stipulated in UN General Assembly resolution 303 (IV) of 1949. Such
recognition was not possible before a final determination of the status of the
area.”
Source: http://www.britishconsulate.org/chancery/jru.htm - “Britain did not
recognise Israel until 27 April 1950, simultaneously with its recognition of
70
Jordan, which had just annexed the West Bank. But it did not recognise either
Israeli or Jordanian sovereignty over the area of the corpus separatum, although
it did recognise that each exercised “ de facto authority” in its respective sector.
Israel replied that Israeli-occupied Jerusalem was an integral part of the State.”
Yi Ling
Malaysia

Saturday September 07, 2002 at 8:21 am
I am just going through Anthony D’ Amato’s statement and other connected
statements : “1. Palestine was a Mandate under Article 22 of the League of
Nations Covenant; in our parlance, a trust. The beneficiaries were the people
residing in Palestine. The Mandatory Power (trustee) was Great Britain.” to flesh
out the 4 important ingredients of the trust as well as their finer details. That way,
things which are obvious will show themselves up, where a broad sweep tends to
hide them.
There is no originality in this analysis, just building on Tony D’Amato’s as well
as wondering what Tony D’ Amato would have said if he had held a brief for the
Christian Church , and thus taken his thesis to its logical conclusion in the same
vein for the City of Jerusalem.
(a) the trust (or even the trust document as well- The Palestine Mandate, The
Council of the League of Nations:July 24, 1922
http://www.mideastweb.org/Mandate.htm) - the Mandate
(b) the trustee- the Mandatory Power , Britain (not Great Britain)
(c ) the beneficiaries –
(i) the people residing in Palestine
(ii) maybe we should also include the Jews from outside Palestine ! see the
Mandate’s preamble “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 favor 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
(iii) maybe we should also include the “international community” or at least the
international community who are adherents of the 3 monotheistic Abrahamic
71
faiths- Judaism, Christianity, Islam
and a further fourth element,
(d) the trust properties- “the territory of Palestine, which formerly belonged to
the Turkish Empire, within such boundaries as may be fixed by them” It is
common knowledge now that the trust property was carved out and partitioned
into 3 blocs, 1st for the Jewish state, 2nd for the Arab state and 3rd for the
International City of Jerusalem. As Anthony says later, “It also provided for an
independent international mixed status for the city of Palestine.” and “…it could
relinquish its trusteeship if the territory were divided into two states, a Jewish
State and an Arab State.”
(1) For the trust to be fully discharged, in ordinary commercial parlance, all the
trust properties must be transferred to all the beneficiaries.
(i) “all” the trust properties means –
Jewish state in Mandate for Palestine
the Arab state in Mandate for Palestine
International City of Jerusalem in Mandate for Palestine
(ii) “all” the beneficiaries meansJews in the Jewish state in Mandate for Palestine and overseas Jews especially
the Holocaust Jews , and the Arab people residing in the Jewish state in Mandate
for Palestine
Jews in the Arab state in Mandate for Palestine and the Arab people residing in
the Arab state in Mandate for Palestine
Jews and the Arab people residing in the International City of Jerusalem in
Mandate for Palestine, and all adherents of the 3 monotheistic Abrahamic faithsJudaism, Christianity, Islam .
*** If this point of the beneficiaries also being “all adherents of the 3
monotheistic Abrahamic faiths- Judaism, Christianity, Islam .” and not just “The
beneficiaries were the people residing in Palestine.” as stated by D’Amato then
the prior mentioned document of the MEMORANDUM OF THEIR
BEATITUDES THE PATRIARCHS AND OF THE HEADS OF THE
CHRISTIAN COMMUNITIES IN JERUSALEM ON THE SIGNIFICANCE OF
JERUSALEM FOR CHRISTIANS, November 14, 1994”. The full Memorandum
can be read at http://www.al-bushra.org/hedchrch/memorandum.htm, makes
72
sense . They are representatives of the beneficiaries to the City of Jerusalem!
Since Anthony D’ Amato says: “Legal title to the land was not conferrred by
Resolution 181 alone but rather by Great Britain's acceptance of the terms of
Resolution 181.” “... Instead, as soon as Resolution 181 was passed …., the legal
borders between Israel and Palestine were forever fixed.”
then it also means that, the legal borders of the corpus separatum for the City of
Jerusalem were also forever fixed.
Since Anthony D’ Amato says : “Those borders henceforth could only be
changed by one of two processes: first, explicit agreement between Israel and the
authorized representatives of Palestine, …”
then the legal borders of the corpus separatum for the City of Jerusalemcould
only be changed by one of two processes: first, explicit agreement between Israel
and the authorized representatives of Palestine, …” on the one hand and
representatives of the adherents of the 3 monotheistic Abrahamic faiths- Judaism,
Christianity, Islam on the other hand.
Since Anthony D’ Amato says : “ Thus after all the wars, the bloodshed,
aggressions and counter-aggressions, acts of terror, reprisals, and attendant UN
resolutions, nothing has changed the legal situation as it existed after Resolution
181 in 1947. The legal boundaries of Israel and Palestine remain today exactly as
they were delimited in Resolution 181.”
then after all the “MEMORANDUM OF THEIR BEATITUDES THE
PATRIARCHS AND OF THE HEADS OF THE CHRISTIAN COMMUNITIES
IN JERUSALEM ON THE SIGNIFICANCE OF JERUSALEM FOR
CHRISTIANS, November 14, 1994”, the BASIC AGREEMENT BETWEEN
THE HOLY SEE AND THE PALESTINE LIBERATION ORGANIZATION ,
signed February 15, 2000 , the wars, the bloodshed, aggressions and counteraggressions, acts of terror, reprisals, and attendant UN resolutions, nothing has
changed the legal situation as it existed after Resolution 181 in 1947. The legal
boundaries of the City of Jerusalem remain today exactly as they were delimited
in Resolution 181.
In ordinary commercial practice, after the transfer has been legally effected and
the title of 1 of the 3 properties passed from the trustee to the beneficiary, the
trustee's change of mind about the 'area' of the title of the said one property is
irrelevant. I suspect this is what Tony D'Amato means by "Thus after all the
wars, the bloodshed, aggressions and counter-aggressions, acts of terror,
reprisals, and attendant UN resolutions, nothing has changed the legal situation
as it existed after Resolution 181 in 1947. The legal boundaries of Israel and
Palestine remain today exactly as they were delimited in Resolution 181."
73
This then addresses all the issues we raised of Britain's de jure recognition in
1950 of land annexed by Israel in 1949 and de facto recognition in 1950 of the
'de facto occupation of West Jerusalem'
In other words, according to Tony D' Amato, all these are irrelevant to his
analysis that, the borders of Israel are per 1947 and not 1949 or 1950 ! :-)
Yi Ling
Malaysia

Saturday September 07, 2002 at 8:43 am
In ordinary commercial practice, Trustee legally effects transfer of Land A (per
trust deed) out of a trust pool of Land A, Land B, Land C to Mister A.
Mister A has title deed to Land A. Mister A is legal and beneficial owner of Land
A.
Before transfer was effected, Mister A is beneficial owner of Land A but not
legal owner of Land A.
After transfer is effected Mister A is legal as well as beneficial owner of Land A.
Can trustee after transferring Land A says, officially, that trustee recognises
Mister A right to Land A + "x"%?
Whatever trustee says, after the transfer, does it increase the beneficial
ownership? Did we not establish that whether before or after the transfer, at all
times per the trust deed, Mister A was the beneficial owner of only Land A? The
transfer only affected the legal ownership of Land A
Its our ignorance of the basic concepts of international law, that entices us to the
various UN SCR 242 and UN GAR 43/177, and argue without legal basis for the
change of the beneficial and legal ownership status and for land increases. We
become seduced and are enticed away by the changing politics from nation
states, UN GA, UN SC, since UN GAR 181.
When and if we revert to more familar grounds of day to day trust deeds as we
know of, maybe then, Tony D' Amato's gem, starring at us, but missing us, for so
many months since April 2002 can be gleaned, "Thus after all the wars, the
bloodshed, aggressions and counter-aggressions, acts of terror, reprisals, and
attendant UN resolutions, nothing has changed the legal situation as it existed
after Resolution 181 in 1947. The legal boundaries of Israel and Palestine remain
today exactly as they were delimited in Resolution 181." :-)
As he says there are 2 situations where the land can change, “Those borders
74
henceforth could only be changed by one of two processes: first, explicit
agreement between Israel and the authorized representatives of Palestine, …”
Have the 2 situations been legally shown to apply?
Yi Ling
Malaysia



Tuesday September 17, 2002 at 10:43 am
Yi Ling the idea that Christians or Muslims have some claim over the holy sites
is a recepie for disaster.
It is simply the flip side of Zionism.
Palestinians and Israelis have a claim because, they live there not because of
their religions.
S Mourad
Canada
Tuesday September 17, 2002 at 7:11 pm
S. Mourad says: "Yi Ling the idea that Christians or Muslims have some claim
over the holy sites is a recipie for disaster. It is simply the flip side of Zionism.
Palestinians and Israelis have a claim because, they live there not because of
their religions." I disagree. I think that Christians, Muslims, and Jews do have
certain claims on access to the religious sites of their respective faiths and these
sites must be protected and open for visits by their faithful. The same is true for
privately owned Arab land in the West Bank and Jerusalem; the owners of these
lands should enjoy the legal rights pertaining to owners of private property. But,
I think, what has still not been determined by the legal discussion in this forum is
who has the right to impose an overarching national sovereignty upon the entire
territory, including the religious sites, private property and all of the nonprivately owned land in between. (The latter is practically all of the territory at
issue.) The issue is sovereignty, not visiting rights and the enjoyment of
privileges on isolated bits of land.
S. Ames
Arizona, USA
Wednesday September 18, 2002 at 9:56 am
S Mourad,
The given start up point is GAR 181 of 1947, where there are 3 entities: 1st the
Jewish state of Palestine, 2nd the Arab state of Palestine and 3rd the International
City of Jerusalem. If the premise of the GAR 181 is acknowledged and accepted,
then any claim by Christians or Muslims to the International City of Jerusalem,
would be in accordance with GAR 181, which our dear Professor Anthony
D’Amato has stated affirmatively is the ratification of the British
75
recommendation for partition of the Palestine Mandate.
However to date, neither the Christians nor Muslims have sent their army to
impose the creation of the International City of Jerusalem. Neither has UN.
In what way then is the International City of Jerusalem a recipe for disaster?
Or in what way then has the International City of Jerusalem been a recipe for
disaster?
What was the conventional worldly wisdom then in 1947 for GAR 181 for the
International City of Jerusalem?
S Ames,
Comment on your “But, I think, what has still not been determined by the legal
discussion in this forum is who has the right to impose an overarching national
sovereignty upon the entire territory, including the religious sites, private
property and all of the non-privately owned land in between. (The latter is
practically all of the territory at issue.)”
On the contrary, the preceding discussion lead to the conclusion that, sovereignty
lies with the 3 entities per GAR 181. That is the area carved out of the Palestine
Mandate for the Jewish state of Palestine is the boundary for Israel. The area
carved out of the Palestine Mandate for the Arab state of Palestine is the
boundary for Palestine. The area carved out of the Palestine Mandate for the
International City of Jerusalem is the boundary for the City of Jerusalem, to be
administered by the UN for a period of about 10 years in accordance with the
approved Statute for the City of Jerusalem. This is the conclusion that Professor
Anthony D’Amato would have us think- that the sovereignty of Israel is per
GAR 181 of 1947, the sovereignty of Palestine is per GAR 181 of 1947.
Likewise the sovereignty of the International City of Jerusalem lies not with
Israel or Palestine or Jordan but it lies with the UN for the first ten years per
GAR 181 and the approved Statute for the City of Jerusalem.
Yi Ling
Malaysia

Wednesday September 18, 2002 at 10:07 am
S Ames,
A more direct answer to your question, "who has the right to impose an
overarching national sovereignty upon the entire territory, ...." would be to refer
you to the nations who were eligible to vote for GAR 181 in 1947. They as the
UN General Assembly had the right to impose an overarching national
76
sovereignty upon the entire territory, and they did , as shown by their voting
pattern- Professor D'Amato thinks it should be Britain that has the right to
impose the overarching national sovereignty, and according to the Professor
Britain recommended this UN GAR 181 to the UN GA. The Professor places
less importance on the UN GA in so far as the borders are concerned. The UN
GA merely RATIFIED that which Britain had decided.
This is the voting pattern for the UN GAR 181. (1) In favour: 33 -Australia,
Belgium, Bolivia, Brazil, Byelorussian S.S.R., Canada, Costa Rica,
Czechoslovakia, Denmark, Dominican Republic, Ecuador, France, Guatemala,
Haiti, Iceland, Liberia, Luxemburg, Netherlands, New Zealand, Nicaragua,
Norway, Panama, Paraguay, Peru, Philippines, Poland, Sweden, Ukrainian
S.S.R., Union of South Africa, U.S.A., U.S.S.R., Uruguay, Venezuela. (2)
Against: 13-Afghanistan, Cuba, Egypt, Greece, India, Iran, Iraq, Lebanon,
Pakistan, Saudi Arabia, Syria, Turkey, Yemen. (3) Abstained: 10 -Argentina,
Chile, China, Colombia, El Salvador, Ethiopia, Honduras, Mexico, United
Kingdom, Yugoslavia.
Yi Ling
Malaysia


Sunday September 22, 2002 at 7:32 pm
GAR 181 and the British partition proposal was accepted by Israel in 1948 prior
to the invasion by the armies of the Arab states. But the partition borders must
have been nullified by the attempt by the Arabs to exterminate the Jews and
erase the newly procalaimed State of Israel. There was no attempt by other
powers to aid Israel to survive in any borders so I have the following rhetorical
question: If the Arabs had succeeded in utterly destroying Israel and liquidating
its population (then about 660,000)without any survivors, under the aegis of
GAR 181, to whom would the UN insist that the territory which was to be the
Jewish state be returned? And if the first attempt to exterminate Israel did not
succeed are the Arabs free to continue their attempts until they one day will
succeed? It cannot be possible that international law (or morality) supports the
concept that the Jews could lose all of their territory if the Arab aggression
succeeds but if it fails, the original territory boundaries proposed for the Arab
state must be restored to allow the Arabs multiple attempts to exterminate Israel.
The Arab aggression of 1948 must have nullified forever any resort to legalizing
the borders of the British proposal.
S. Ames
Arizona, USA
Sunday September 22, 2002 at 7:35 pm
GAR 181 and the British partition proposal was accepted by Israel in 1948 prior
to the invasion by the armies of the Arab states. But the partition borders must
have been nullified by the attempt by the Arabs to exterminate the Jews and
erase the newly procalaimed State of Israel. There was no attempt by other
77
powers to aid Israel to survive in any borders so I have the following rhetorical
question: If the Arabs had succeeded in utterly destroying Israel and liquidating
its population (then about 660,000)without any survivors, under the aegis of
GAR 181, to whom would the UN insist that the territory which was to be the
Jewish state be returned? And if the first attempt to exterminate Israel did not
succeed are the Arabs free to continue their attempts until they one day will
succeed? It cannot be possible that international law (or morality) supports the
concept that the Jews could lose all of their territory if the Arab aggression
succeeds but if it fails, the original territory boundaries proposed for the Arab
state must be restored to allow the Arabs multiple attempts to exterminate Israel.
The Arab aggression of 1948 must have nullified forever any resort to legalizing
the borders of the British proposal.

S. Ames
Arizona, USA
Monday September 23, 2002 at 10:28 am
S. Ames of Arizona, USA,
The first issue in your question relates to the legal position of right or otherwise
to keep territory after winning a war.
Professor earlier said, "(9.) Overshadowing the arguments in Paragraph 8 above
is the undeniable fact that the Kellogg-Briand Peace Pact of 1928, as definitively
glossed by the International Tribunal at Nuremberg in 1948, has abolished
forever the idea of acquisition of territory by military conquest. No matter who
was the aggressor, international borders cannot change by the process of war.
Resort to war is itself illegal, and while self-defense is of course legal, the selfdefense cannot go so far as to constitute a new war of aggression all its own. And
if it does, the land taken may at best be temporarily occupied, but cannot be
annexed. Thus after all the wars, the bloodshed, aggressions and counteraggressions, acts of terror, reprisals, and attendant UN resolutions, nothing has
changed the legal situation as it existed after Resolution 181 in 1947. The legal
boundaries of Israel and Palestine remain today exactly as they were delimited in
Resolution 181."
Your second issue relates to your hypothetical question, of what if, Israel had lost
the war? To whom does the land granted to the Jewish state of Palestine?
If we follow the legal logic of the Professor, the land would belong to the Jews
from outside Palestine, who choose to migrate to the Jewish state of Palestine, as
well as the inhabitants (Jews and non Jews) of the Jewish state of Palestine. The
same point that the Professor made, "..Kellogg-Briand Peace Pact of 1928, .......
has abolished forever the idea of acquisition of territory by military conquest. No
matter who was the aggressor, international borders cannot change by the
process of war. ...... the land taken may at best be temporarily occupied, but
78
cannot be annexed. Thus after all the wars, the bloodshed, aggressions and
counter-aggressions, acts of terror, reprisals, and attendant UN resolutions,
nothing has changed the legal situation as it existed after Resolution 181 in 1947.
The legal boundaries of Israel and Palestine remain today exactly as they were
delimited in Resolution 181." would apply to your case of the Arab agression and
total annihilation of the Jews in the Jewish state of Palestine. Total annihilation
seldom occurs though in history !
The civilising notion of international law, is that, it applies with equal force to all
situations, the situation as it is today and likewise in your hypothetical situation;
as well as in any other cases in the world in the past decades and for the future.
Whether international law has the means to enforce the rules is a separate issue.
Whether states, or international bodies follow the said rules, is too another
separate issue. It is less a legal issue and more a political issue.
Law is not law only if it is obeyed.
If it is the law, it is the law; whether it is obeyed or not.
The question is, is the Professor's purported statement of the law, a statement of
the law?
If the Professor's statement of the law on the legal borders of Israel per the UN
partition plan of 1947 as decided by Britain prior to her recommendation of the
same to the UN GA, is accurate and correct,
then the law is that, the legal borders and sovereignty of Israel, Palestine and
City of Jerusalem is per the borders of the UN Partition Plan of the UN GAR 181
of 1947.
Yi Ling
Malaysia

Monday September 23, 2002 at 3:36 pm
S. Ames
The exception to the Professor's General Rule, is his 2 exceptions"Those borders henceforth could only be changed by one of two processes: first,
explicit agreement between Israel and the authorized representatives of Palestine,
and second, in the few cases of limited disputed areas where the verbal
description contained in Resolution 181 was ambiguous in terms of existing
maps or surveys, by international arbitration. The Security Council had and has
79
no power to change international borders.
Have the 2 situations been legally shown to apply?
So S. Ames, if you wish to approach it from the legal approach, then you
WOULD put your questions within any or both of the exceptions to the General
Legal Rule.
In other words, if you put outside the Professor's 2 Exceptions, you are putting
the questions from another Discipline, which is not necessarily law, or which is
not law.
Your hypothetical questions and answers appear to be outside the framework of
the 2 Legal Exceptions to the Legal General Rule.
Thus, while the FRAMEWORK of your hypothetical question and answers are
OUTSIDE THE LEGAL LIMITS OF LAW , they may be within POLITICS, or
OTHER DISCIPLINES.
It is the clear delineation of which framework your question sprouts from, that
will clarify the kind of answers you would expect.
If you want an international law answer, then you need to enter into the
Professor's Discourse and his 2 Legal Exceptions.
If you wnat an internaitonal political answer, then you would invite others in
Your Discourse and your finding that, "The Arab aggression of 1948 must have
nullified forever any resort to legalizing the borders of the British proposal."
If you choose to invite others into Your Discourse, you would do well, to put
forward facts and arguments that, present the basis of your International Political
Argument.
Yi Ling
Malaysia

Monday September 23, 2002 at 3:56 pm
S. Ames
Identification of Frameworks are important as each framework has its values,
end purpose and objective.
Contrast - S Ames Framework ---t the partition borders must have been nullified
by the attempt by the Arabs to exterminate the Jews and erase the newly
procalaimed State of Israel." and "It cannot be possible that international law (or
80
morality) supports the concept that the Jews could lose all of their territory if the
Arab aggression succeeds but if it fails, the original territory boundaries
proposed for the Arab state must be restored to allow the Arabs multiple attempts
to exterminate Israel. The Arab aggression of 1948 must have nullified forever
any resort to legalizing the borders of the British proposal."
with Professor's Framework-----"Legal title to the land was not conferrred by
Resolution 181 alone but rather by Great Britain's acceptance of the terms of
Resolution 181. The State of Israel owes its entire legal existence to the proper
exercise by Great Britain of its League of Nations' Mandatory Power over the
territory of Palestine. It owes nothing to the United Nations and, by the same
token, cannot claim any additional rights from the United Nations. Instead, as
soon as Resolution 181 was passed (and of course Great Britain voted in its
favor), the legal borders between Israel and Palestine were forever fixed. Those
borders henceforth could only be changed by one of two processes: first, explicit
agreement between Israel and the authorized representatives of Palestine, and
second, in the few cases of limited disputed areas where the verbal description
contained in Resolution 181 was ambiguous in terms of existing maps or
surveys, by international arbitration. The Security Council had and has no power
to change international borders." and "The sanctity of international borders is a
principle of international law that antedates the Charter of the United Nations; in
fact it goes back five thousand years" and "No matter who was the aggressor,
international borders cannot change by the process of war. Resort to war is itself
illegal, and while self-defense is of course legal, the self-defense cannot go so far
as to constitute a new war of aggression all its own. And if it does, the land taken
may at best be temporarily occupied, but cannot be annexed. Thus after all the
wars, the bloodshed, aggressions and counter-aggressions, acts of terror,
reprisals, and attendant UN resolutions, nothing has changed the legal situation
as it existed after Resolution 181 in 1947. The legal boundaries of Israel and
Palestine remain today exactly as they were delimited in Resolution 181."
This latest debate is not of, which is the more correct view of law of legal
borders, but it is a cross discplinary debate of what is the legal border.
S Ames argument stems from outside pure law view point while Professor's
arguments stems from a pure law view point.
Both through different disciplines purport to state that this is the legal border or
that is the legal border.
If S Ames wish to construct a legal argument, then his legal thesis can be
examined through legal view points. Currently he is using non law disciplines to
arrive at the legal border of the 3 entities, Israel, Palestine, City of Jerusalem.
Yi Ling
81
Malaysia

Monday September 23, 2002 at 5:18 pm
S Ames
You have offered us your assessment, idea, notion of 'the Political Border' of
Israel, Palestine, City of Jerusalem
as 'the Legal Border' of Israel, Palestine, City of Jerusalem,
based on your notion of political constructs.
Thus your political arguments are not based on Legal constructs or legal premise.
This comment does not attempt to invalidate your political comment or idea or
construct.
This and the precediing comments only endeavours to distinguish between your
Political Constructs and the Professor's Legal Constructs and to highlight the
distinction between the 2 different disciplines.
In common parlance, one cannot compare apples with oranges.
Yi Ling
Malaysia

Tuesday September 24, 2002 at 3:09 am
Yi Ling: You may want to review my comments regarding K-B (See April 15,
May 11 and 13).
S Ames: See my previous comments about "no fault war" on May 29th.
Morley Harper
Detroit, Michigan

Tuesday September 24, 2002 at 11:03 am
Morley Harper of Detroit, Michigan,
I have perused your mentioned postings. I would like to address the issue raised
in your posting of Saturday May 11, 2002 at 3:55 pm, “…Before proceeding,
there is the question of whether there is still a trust: …..UN 181 (Part I.A.)
terminated the Mandate (not just Britain's role as the Mandatory power): "The
Mandate for Palestine shall terminate as soon as possible but in any case not later
than 1 August 1948." (Surely none of the requirements of a trust, Article 22 of
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the League of Nations Covenant, have been carried out since.) The UN Charter
granted the General Assembly supervision over non strategic trusts; it's absurd to
argue that the partition was legitimate but that the termination of the trust was
not.”
To do that I would start with reproduction of the extracts of the Professor’s 8
points on the Mandate & trust(1) Professor Anthony D'Amato’s Monday May 06, 2002 at 3:33 pm ….Second,
the "termination of British rule" is not determinative of the existence of the
Mandate for the same reason that a particular trustee is not essential to the
continued operation of a trust. ….Third, the international boundaries do indeed
exist, precisely as they were spelled out in Resolution 181--or to put it perhaps
more accurately, either international boundaries exist or the Mandate itself is still
in existence. But in either case, the only legal borders between Israel and
Palestine are those contained in Resolution 181, and nothing subsequent to 1947
has changed the legal situation (the military situation, of course, is entirely
different).
(2) Professor Anthony D'Amato’s Thursday May 09, 2002 at 12:14 am….A trust
is divided not according to the wishes of the beneficiaries, but according to the
terms of the trust instrument. Unless one understands this common-law concept
of trust, one cannot understand the Palestinian Mandate. The line drawn by the
British in 1947, authorized by Resolution 181 ("recommended" if you prefer--it
doesn't matter), created the sole boundary between the new Jewish State and the
new Arab State. Of course, once created, the two states can get together and
agree on a different boundary. But (a) it cannot be done by force, and (b) it
requires two states. The state of Palestine has not come into existence.
(3) Professor Anthony D'Amato’s Monday May 13, 2002 at 12:56 am Although
the Mandate was dated to expire in August, 1948, an essential term, namely the
creation of an "Arab state," was not fulfilled. Of course this was the fault of the
neighboring Arab countries, but one still has to protect the beneficiaries of the
trust, namely, the people living in the area. The Jewish people were protected by
the creation of their state, but the Palestinian people were not protected.
Therefore I would argue--and you may well disagree with me--that the Mandate
survives until its substantive terms are fulfilled.
(4) Professor Anthony D'Amato’s Sunday June 09, 2002 at 6:35 am . …What
about GAR 181? It was called a "resolution" (which is why I've put that word in
quotes) but in fact it was an authoritative finding. The GA found that the
Palestine Mandate could be terminated and independence for the people could be
established by making two states out of the territory rather than just one state (as
had been the case with all other Mandates and Trust Territories).
(5) Professor Anthony D'Amato’s Tuesday June 11, 2002 at 2:35 am An
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authoritative finding in the context of an international Mandate or Trust is a
mixed question of law and fact, or more precisely, a factual determination made
under the aegis of the mandate instrument. When I worked on the South West
Africa cases in the early 1960s, it was my job to draft the portions of the brief
(for the plaintiff states Ethiopia and Liberia) on the devolution of the South West
African mandate as if it had been supervised by the Trusteeship Council. (Like
the Palestine Mandate, the South West African Mandate was never negotiated
with the Trusteeship Council and so did not fall under the TC's actual
jurisdiction.) I made a number of proposed intermediate findings of fact
concerning the situation in South West Africa--the degree of participation of the
inhabitants in local government, the degree and universality and relevance of
education, the economic well-being of the people, opportunities for
advancement, etc. All of these led up to my proposed ultimate authoritative
finding: that an extension of the apartheid system into South West Affica would
contravene the terms of the Mandate. The Mandate would be contravened
because the well-being of the inhabitants would in all the particularities
examined, be worsened rather than promoted by racial discrimination. Except for
the apartheid system, South West Africa by the 1960s was prepared to stand
alone. And indeed, in due course it became the independent nation of Namibia. It
had come a long way from its Class C Mandate status. Palestine began as a Class
A Mandate. The obstacle was not apartheid or any other overarching system;
rather, it was the personal antagonism between Jews and Arabs, fueled not by the
Palestinians but by the neighboring Arab states. This was an unprecedented
situation for the UN. Palestine was clearly ready to become an independent state
and get rid of its status as a Mandate, except for the fact that a democratic
government would be divided pretty much down the middle, and waves of
Jewish immigrants from Europe would upset whatever political balance might
have been drawn between Arabs and Jews in a new government. In other words,
but for the Arab-Jew division, Palestine could have been given its independence.
Under this unique circumstance, it would not have made much sense for the UN
to continue the Mandate. The situation wasn't going to get any better; indeed,
immigration would make it more volatile. The people weren't going to get any
closer to standing alone than they already were; they did not need more tutelage
in self-government, for example. Thus the Mandate was all but ready to expire
on its own--except for the conflict between Arabs and Jews. Thus, the reasonable
solution led to an authoritative finding by the UN General Assembly (acting for
the UN as a whole, including the Trusteeship Council which did not have
jurisdiction over Palestine) that splitting the country into two new nations would
fulfill the terms of the Mandate. Thus independence would come to Palestine not
as a unitary state but as two states. As I said earlier, Great Britain for political
reasons did not want to endorse this proposal, but they had a lot to do with
thinking it up, and they did not vote against it. Thus Resolution 181 in November
1947 said, basically, that the two-state solution would terminate the Mandate,
and that the partition should be thus-and-so (taking into account projected Jewish
immigration), along specified geographical lines and markers. Now, in fact, the
UN's solution has been only half fulfilled. Israel became a state in 1948 but there
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was no comparable Arab state (although of course, as has been mentioned in this
forum, a number of Arab entrepreneurs gave it a good try in the hopes of
installing themselves as the new government of the Arab state.) So what we were
left with after Israel became a state in May, 1948, was a UN boundary line
between the Israeli state and the forthcoming Arab state. In my opinion, nothing
since then has changed as a matter of law. Nothing Jordan has done, or Israel has
done, or the UN Security Council has resolved (whether in Resolution 242 or any
other), has affected the international legal boundary. In particular, international
boundaries do not change as a result of the use of force, for reasons previously
given. What about the territory underlying the proposed Arab state? What is its
status today? If you accept my argument, it follows that the "Arab" portion of
Palestine is still a UN Mandate. It will cease to being a mandate if an Arab state
comes into being. Obviously, the negotiations for an Arab state -- now called the
Palestinian State --will deal with the boundary questions. But a sovereign state
always has the right to cede portions of its territory. I imagine that the US and
Israel and other negotiators will ask for a final "closing" that establishes a
Palestinian State at the same moment that it fixes the boundaries of that new
state. The Arabs have already proposed that these boundaries can be the pre-1967
boundaries which give Israel more than double the land that was allocated under
the 1947 Partition. As I said at the outset, I think that's a pretty good deal for
Israel. However, Israel has to decide for itself, just as the new Palestinian state
has to decide for itself, whether it's a good deal. Like a successful labor
negotiation, both sides are going to walk away unhappy.
(6) Professor Anthony D'Amato’s Thursday June 20, 2002 at 12:45 am…The
mandate issue, as it has developed in this interesting forum, has led to some
advocates of the position that Jordan is the Mandatory, others advocating Israel
as the Mandatory power, and others advocating Great Britain. "And the winner is
... New Zealand!" Seriously, the identity of the mandatory power is not
important, just as the identity of a trustee is not important. What is important is
the trust. The Mandate document issued by the League of Nations, as well as
Resolution 181, only reflect the underlying Mandate, whose telos -- whose
purpose for being -- is to bring the people to independence and self-government.
Thus Resolution 181 can't be parsed like a contract, as Mr. Kopelman wishes, but
rather has to be interpreted like a Constitution, in which the rights of the people
are not exhaustively enumerated. I maintain that the Mandate (the trust) itself
(not the piece of paper setting up the Mandate) does not end until the Palestinian
people achieve self-government. The Jewish Palestinians achieved selfgovernment in May 1948, but the rest of Palestine has not yet done so. As for
Mr. Kopelman's "ironic" thought--that if the Mandate exists the settlements are
legal, that would have been true prior to the partition of 1947. After the partition,
we may have a curious one-sided situation. Israel may have the right to bar Arabs
from purchasing land in Israel, because Israel is a state. But Palestinians do not
have the right to bar Israelis from purchasing land in the Mandate territory,
because Palestine is not a state. Thus, I think there is nothing wrong with Jewish
settlements in Palestine provided the settlers purchase the land from the
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Palestinians who are the owner-occupiers of the land the want to purchase. Of
course, to the extent that they simply bulldoze Palestinian farms and houses and
carve out Jewish settlement areas, then it's simply territorial aggression, and it
cannot lead to title in the land.
(7) Professor Anthony D'Amato’s Thursday July 25, 2002 at 7:02 am Thanks to
Mr. Kopelman for restating the questions. ….As for Mr. Mobarek's question,
UNGAR 181 was not, in my view, a "resolution" in the normal sense of a
nonbinding expression of attitude or policy by the General Assembly. Rather, in
this special case, it was a surrogate for an authoritative finding by the
Trusteeship Council which should have had jurisdiction over the Palestine
question but was not given jurisdiction over it. The "mandates" regime of the
League had to go somewhere, and in my view it went to the UN as a whole,
which means that it went to the General Assembly. (If I recall correctly--and
someone out there can advise me on this point--the committees on information
which supervised the peaceful transition to decolonization of a great many small
territories, were a creature of the General Assembly.) As a general matter--and in
response to Mr. Ames' question whether the Israel-Palestine conflict is similar to
many others--I think we're dealing here with a most unique situation. The closest
analogy is rather distant--the one I mentioned about the South West Africa
Cases. There's really nothing similar enough to the Palestine border dispute to
glance any light at it. That's why it's even misleading to use words like "treaty"
and "resolution" in this context, because they obscure more than they disclose.
The essence of the situation is that this is a mandate, a trusteeship if you will,
that cannot be wholly conceptualized within the framework of law courts. It
takes a certain amount of familiarity with the rise of the Chancery court system
in England and the idea of equitable jurisprudence to get a handle on what the
framers of the Covenant of the League of Nations had in mind. Palestine is the
last remaining mandate, and we probably will not have a chance to use this
ancient learning again, but it has turned out to be a very important mandate. We
scholars do not have the time or talent to go to the Middle East and get on a
soapbox or help distribute food to the refugees or network at great length with
distressed Israeli citizens, but we can do what we do best, which is to dig below
the surface of the arguments and charges and invective that characterize debates
on this subject, and see if doing the "legal thing" might in some small way
possibly help.
(8) Professor Anthony D'Amato’s Thursday August 08, 2002 at 12:48 am
Although laypersons may so think, a careful reading of the UN Charter in its
entirety shows that the powers of both organs are limited. Indeed, the "range" of
GA jurisdiction is much broader than the SC, while the military power of the SC
is stronger within the Charter's specified limits. But in either case, as I have tried
to show at some length in the earlier posts in this forum, the mandate power
resided in the League of Nations, and whan the League was extinguished in
1946, the mandate power devolved to the UN which had been established in
1945. It was contemplated that the Trusteeship Council would take over the
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mandate supervision, and for the most part that is what happened, but it did not
happen with respect to Palestine nor with respect to South West Africa. Except
for the fact that these are class A and C mandates respectively, much of the same
legal analysis applies to both. As I argue, it is the GA, not the SC, which inherits
the mandate supervisory power, as it's power is much broader than that of the
security council. The latter properly stepped in when there was a threat to the
peace in resolution 242, but it had no power to redraw the lines of the mandate,
and in fact, did not attempt or purport to do so.
Morley Harper, as extraction and reproduction has taken time, another day I will
comment on the extracts of the Professor’s legal position on the “termination” as
well as “existence” of the Mandate as shown above, to refute or support your
view that, “it's absurd to argue that the partition was legitimate but that the
termination of the trust was not.”
Yi Ling
Malaysia

Friday October 04, 2002 at 10:07 am
The move by EU of 29 August 2002 for a provisional state of Palestine by
August 2003 and a final state by 2005 is welcomed and so too that of the
QUARTET – EU, USA, RUSSIA, UN, of 17 September 2002 agreeing on a
provisional state of Palestine by 2003 and a final state by 2005.
Under the EU proposals,29 Aug 2002 , Israel and the Palestinians would share
Jerusalem, while their territories would return to those of 1967, with a few
"proportionate exchanges" of territory.
http://www.jerusalem.indymedia.org/print.php?id=69671
Under the QUARTET agreement, 17 Sep 2002 the Israeli occupation that began
in 1967 will be ended through a settlement negotiated between the parties and
based on UN resolutions 242 and 338, with Israeli withdrawal to secure and
recognised borders. http://www.jmcc.org/new/02/sep/quartetstat.htm
Yi Ling
Malaysia

Sunday October 06, 2002 at 12:29 pm
Communicated by the Foreign Minister's Bureau of ISRAEL - 4 October 2002-Foreign Minister Peres noted that joint efforts relating to points contained in the
Quartet's communique (September 17, 2002) that are acceptable to all sides
should be continued. http://www.mfa.gov.il/mfa/go.asp?MFAH0mgm0
Communiqué issued by the Quartet / New York, 17 September 2002 -United
Nations Secretary-General Kofi Annan, U.S. Secretary of State Colin Powell,
Russian Foreign Minister Igor Ivanov, Danish Foreign Minister Per Stig Moeller,
87
High Representative for European Common Foreign and Security Policy Javier
Solana, and European Commissioner for External Affairs Chris Patten met today
in New York. “In its final phase (2004-5), the plan envisages Israeli-Palestinian
negotiations aimed at a permanent status solution in 2005. Consistent with the
vision expressed by President Bush, this means that the Israeli occupation that
began in 1967 will be ended through a settlement negotiated between the parties
and BASED ON U.N. RESOLUTIONS 242 AND 338, WITH ISRAELI
WITHDRAWAL TO SECURE AND RECOGNIZED BORDERS.”
…..http://www.un.org/news/dh/mideast/quartet_communique.htm

Yi Ling
Malaysia
Sunday October 06, 2002 at 12:53 pm
(1)This appears to be a seriously inconsistent development
of proceeding on 242 and 338 on 17 September 2002 and
proceeding unilaterally contrary to 242 and 338 on 1st October 2002(1)(a) “On September 30, US President George Bush signed the State
Department Authorization Act (H.R.1646), which recognizes Jerusalem as
Israel's capital. The bill changes the status of Jerusalem by a series of provisions,
which demand that the American consulate in East Jerusalem (serving mostly
Palestinians and directly answerable to the US State Department) go under the
American Embassy in Tel Aviv; in effect, creating a dejure branch of the
American Embassy in Jerusalem, under the direction of America's Ambassador
to Israel.
The bill further demands that all US government maps and official documents
identify Jerusalem as the capital of Israel, while also giving American citizens
born in Jerusalem the right to demand that their U.S. government-issued
documents, such as passports and birth certificates, identify Israel as their
birthplace.
However, today (October 1, 2002) after signing the bill, US President Bush
rejected efforts to begin measures moving the US Embassy from Tel Aviv to
Jerusalem, with the State Department spokesperson, Richard Boucher noting,
"Our view on Jerusalem is unchanged. Jerusalem is a permanent status issue that
must be negotiated between the parties.''
In 1995, US Congress passed the Jerusalem Embassy Act, requiring the US
Embassy move to Jerusalem by 31 May 1999. However, the bill included a
national security waiver, and presidents have postponed the move every six
months since the law was enacted.”
88
http://www.lawsociety.org/Press/Preleases/2002/oct/oct1.html
(1)(b) “Along with many other countries, the United States maintains its embassy
in Israel in Tel Aviv to reflect the contested nature of Arab East Jerusalem,
which the Jewish state occupied totally in 1967 and later annexed.
Israel's annexation of the city has never been recognized by international
community and the United States has consistently held that a resolution to the
city's status must be negotiated by the Israelis and Palestinians in the context of a
final peace deal.” http://www.palestine-pmc.com/news/2002/
oct/new-1a-10-02.html
(2) Just on 17 September, 2002 US together with the other 3 members of the
Quartet signed the Communique - ….Consistent with the vision expressed by
President Bush, this means that the Israeli occupation that began in 1967 will be
ended through a settlement negotiated between the parties and BASED ON U.N.
RESOLUTIONS 242 AND 338, WITH ISRAELI WITHDRAWAL TO
SECURE AND RECOGNIZED BORDERS.”
…..http://www.un.org/news/dh/mideast/quartet_communique.htm, and then on
1st October 2002 US passes the bill on Jerusalem .
Yi Ling
Malaysia

Monday October 07, 2002 at 10:45 pm
Yi Lang does an excellent job at reiterating one side of the argument, but my
suggestion is that this argument be sent to the Trusteeship Council of the UN.
That it no longer exists because the UN recognized that there were no remaining
trust territories seems to dispell the "shoulda-coulda-woulda" argument.
http://www.un.org/documents/tc.htm
Whereas Prof. D'Amato's legal arguments may be perfectly sound (about trusts,
contracts and how Res. 194 "should" be parsed), it appears to be an original
intent argument that is contradicted by the very same people who produced the
resolution. Within months, primarily due to Arab rejection of the compromise,
the UN GA itself moved away from this proposed solution and sought others.
Clearly they themselves did not see it as an authorative finding nor a binding
resolution. Their own actions clearly indicate that they themselves parsed it as I
do and not as others claim it should now be understood.
Regarding UNSCR 242, please note that Jerusalem is not mentioned. Arthur
Goldberg, the US Ambassador to the UN at the time and one of the authors, has
explained: "Resolution 242 in no way refers to Jerusalem and this omission was
deliberate... Jerusalem was a discrete matter, not linked to the West Bank."
89
The US position has largely been that eastern Jerusalem was not "occupied" by
Israel. Certainly very few if any voices in the west claim that western Jerusalem
is "occupied", and there is no real dispute that it serves as Israel's capital (since
1950).
Recommended further reading: http://www.jcpa.org/jcprg10.htm
Leeron Kopelman
Ann Arbor, MI, USA

Tuesday October 08, 2002 at 7:08 am
Leeron Kopelman says," Yi Ling does an excellent job at reiterating one side of
the argument, ..."
Could you capture in brief the 'one side' of 'the argument', in the above statement,
so that i can be clear as 'which' argument and the 'ambit' of it, that you are
referring to? Thanks.
Yi Ling
Malaysia

Tuesday October 08, 2002 at 3:53 pm
While waiting for Leeron Kopelman's elucidation, i revert to my post of Tuesday
September 24, 2002 at 11:03 am to Morley Harper of Detroit, Michigan,
The key to the issue is the DISTINCTION between :(1) Morley Harper“it's absurd to argue that the partition was legitimate but that
the termination of the trust was not." and
(2) the Professor's "What is important is the trust. The Mandate document issued
by the League of Nations, as well as Resolution 181, only reflect the underlying
Mandate, whose telos -- whose purpose for being -- is to bring the people to
independence and self-government. Thus Resolution 181 can't be parsed like a
contract, as Mr. Kopelman wishes, but rather has to be interpreted like a
Constitution, in which the rights of the people are not exhaustively enumerated. I
maintain that the Mandate (the trust) itself (not the piece of paper setting up the
Mandate) does not end until the Palestinian people achieve self-government."
I therefore refute Morley Harper's view that, “it's absurd to argue that the
partition was legitimate but that the termination of the trust was not.”
My reasoning for admitting the partition and REJECTING that the TRUST for
90
the ARAB STATE OF PALESTINE IS TERMINATED is as follows
(1) Drawing analogies from commercial law practice, where TRUST DEEDS
ARE SIGNED, there are times, where parties wish to terminate the trust. There
have been times when parties have WRONGLY assumed that, they can just sign
a Termination Agreement of the Trust. Properly advised, they realise that once a
trust is created, TRUST LAWS APPLY, and that they can ONLY terminate the
trust by discharging the trust. That is, the trustee MUST transfer or cause the the
trust property to be transferred to the beneficiary (thereby discharging the trust)
and then, the beneficiary can re-transfer the same property to the "prior creator of
the trust"(if the corporate exercise entails that) This is cumbersome costly time
consuming and circuitous but it is the ONLY legal way to terminate the trust and
vest the same property with the creator of the trust (if the parties intend that the
same property revert to the creator of the trust)
(2) By the same token, where the trust was created over Palestine, the trust can
only be discharged through transferring the Palestinian land to the beneficiaries.
ANY PURPORTED TERMINATION OF THE TRUST- ORALLY OR IN
WRITING, BEFORE THE TRUST PROPERTY ARE LEGALLY
TRANSFERRED TO THE BENEFICIARIES IS NOT VALID UNDER TRUST
LAWS.
It is the legal grounding in the law of trust as a formal discipline in the context of
legal discipline and studies, and proper legal practice in trust instruments; that
will ensure that the legal practitioner does NOT make the LEGAL MISTAKE of
'PREPARING THE TERMINATION OF A TRUST' BY INSERTION OF
MERE WORDS OF TERMINATION OF THE TRUST.' Even if the
inexperienced legal practitioner did make such a MISTAKE, by inserting words
that the “trust is hereby terminated’ it has NO LEGAL EFFECT. Prudent and
excellent auditors of the company, will then properly point out to the company
board that the property in question is still held under trust, even though there is a
document signed under seal purporting to terminate the trust.
As the essence of the Mandate is a trust, thus the mere insertion of words in UN
GAR 181 or any other UN GAR, if any or UN SCR, if any, will NOT and
CANNOT TERMINATE THE TRUST (MANDATE) until the beneficiaries of
the Arab state of Palestine have received their state.
Law is a discipline with its own rules. Trust laws are part of this discipline with
the rule that trust cannot be terminated by mere insertion of words in any written
document that the trust is terminated. There is ONLY One LEGAL WAY to
terminate the trust. It is to transfer the trust property to the beneficiary. Once
legally transferred, the beneficiary can if the beneficiary wants, transfer it to
anyone or even to the creator of the trust.
Professor has endeavoured to elucidate the trust issue from the international law
91
point of view and I have endeavoured to elucidate the trust issue from the
commercial and corporate law point of view, based on our different legal
exposure. Initially, being untutored in international law, I too was swayed, over
whelmed, enticed, distracted by the UN SCR and the precise terms in the UN
GAR 181, where the latter in the same breath of partitioning also set a date for
termination of the Mandate. However when I read the clues that the Professor
gives from international law point of view and relate them to my own ground
experience in commercial law practice, I can appreciate the Professor’s sound
international law argument, that the Mandate exists until the Arab state of
Palestine is created.
In ending this posting, the care with which the Professor has taken is reflected
best by his statement, “We scholars do not have the time or talent to go to the
Middle East and get on a soapbox or help distribute food to the refugees or
network at great length with distressed Israeli citizens, but we can do what we do
best, which is to dig below the surface of the arguments and charges and
invective that characterize debates on this subject, and see if doing the "legal
thing" might in some small way possibly help.” and I would agree with it
wholeheartedly, and it underlies my endeavour to learn of some basic rudiments
of or on international law. However , where elsewhere the Professor has
mentioned his concern for the Palestinians, especially the core issue of the trust
for the Palestinians to achieve their own state; I would think for completeness in
his statement of care, it would be good to add, “distressed Palestinians as well as
Israeli citizens”.
Yi Ling
Malaysia


Wednesday October 09, 2002 at 4:45 pm
I am glad that Yi Ling legal analysis clarifies what common sense would have
made clear from the onset.
The British had Palestine in trust. They had no right to abuse the trust vested in
them even assuming that they had noble intentions of reducing the suffering of
European Jewish community (I doubt that was their only motive).
If they wanted to be charitable they should have done so out of their own land
and belongings.
S Mourad
Canada
Wednesday October 09, 2002 at 6:35 pm
As stated on Thursday September 05, 2002 at 2:28 am, " This topic on the Legal
Boundaries of Israel deals with 3 and not 2 entities –
1st Israel
92
2nd Palestine
3rd International City of Jerusalem
per UN GAR 181."
Thus the issue of the existing Mandate (trust) until the Arab state in formation is
created would also SIMILARLY extend to the International City of Jerusalem in
formation.
Another day i would like to attempt the continuing legal argument on the
continued existing Mandate for this THIRD LEGAL ENTITY.
Yi Ling
Malaysia

Thursday October 10, 2002 at 3:47 am
Yi Ling, as I stated, the UN agrees that the trust has been terminated and for 50+
years has acted based on this understanding.
> the Mandate exists until the Arab state of Palestine is created.
There is no original stipulation in the Mandate document for the creation of two
states, thus the creation of an Arab state is not required for the termination of the
trust. I fear you may be getting confused on terminology: in the first half of the
20th century, the term "Palestinian" usually referred to Jews, not Arabs.
Furthermore, UNGAR 181 specifically states that the partition into two states is a
"recommendation":
Recommends to the United Kingdom, as the mandatory Power for Palestine, and
to all other Members of the United Nations the adoption and implementation,
with regard to the future Government of Palestine, of the Plan of Partition with
Economic Union set out below;
The UN recognized that the conditions of the trust were met and that the
mandatory power could be replaced with one or two states. It recommended 2,
but that was rejected and the rest is history.
Alternatively, if you look at Article 28 of the Mandate, you'll see that it allows
the termination of the mandate with but the requirement that Articles 13 and 14
be maintained. These articles pertain to freedom of worship, not the
establishment of a state (or two).
I think the intent and wording of UNGAR 181 are perfectly clear. It was meant
to 1) terminate the mandate and 2) recommended a two state solution as a
93
compromise. Again, the very people who wrote it were quick to abandon the
recommended solution (due to violent Arab rejectionism).
Note further (Part I, Article F) that admission into the UN of one of the
recommended states is not conditional nor dependent on the existence of the
other state. Can it be that the trust was only partially terminated? Or did the 1949
Armistice Agreements (which in theory protected freedom of worship) provide
all the beneficiaries their due?
Forgive me if I'm not impressed by a revisionist argument that the intent was to
first establish a two state solution which would terminate the trust.
If such was the intent, I think it would have been written much differently and
we wouldn't have this wonderful discussion. Furthermore, if it had been intended
that way, I don't think the UN GA would have moved away from this, within
months of its passing, in search of alternate solutions even while continuing to
consider the mandate to be terminated.
Leeron Kopelman
Ann Arbor, MI, USA

Thursday October 10, 2002 at 7:51 am
Leeron Kopelman, Ann Arbor, MI, USA
Point of clarifacation, "Is your post of Thursday October 10, 2002 at 3:47 am, the
'response to my query to you of Tuesday October 08, 2002 at 7:08 am- " Leeron
Kopelman says," Yi Ling does an excellent job at reiterating one side of the
argument, ..." Could you capture in brief the 'one side' of 'the argument', in the
above statement, so that i can be clear as 'which' argument and the 'ambit' of it,
that you are referring to? Thanks."
so that i am clear that IF it is so and if it is THAT.
Yi Ling
Malaysia

Thursday October 10, 2002 at 11:49 am
Yi Ling, as you yourself stated:
as extraction and reproduction has taken time, another day I will comment on
the extracts of the Professor’s legal position on [another topic]
You did an excellent job restating the Professor's arguments. But you failed to
provide any of the counter-arguments presented by anyone else. Yours was a
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reiteration of one opinion, not a summary of the discussion to date.
Much of what I stated yesterday, and more, had already been presented by
various people.
Leeron Kopelman
Ann Arbor, MI, USA

Friday October 11, 2002 at 12:33 pm
Leeron Kopelman, Ann Arbor, MI, USA
Thank you for your clarification . I now understand the point you are making,
even though I disagree with your observations for the following reasons –
(1) I was addressing one legal issue, the issue of the existence or termination of
the trust. This LEGAL ISSUE arose, in the context of sighting the wording in the
UN GAR 181, which states that the Mandate would terminate by a certain date.
At first few blushes, it puzzled and perplexed me, as my earlier postings had
after much difficulty accepted UN GAR 181 as the ‘ratification’ document for
legal purpose of the legal borders of Israel, the Arab state of Palestine in
formation and the International City of Jerusalem in formation, instead of the UN
SCR 242.
(2) Thus the entire focus of my post on Tuesday October 08, 2002 at 3:53 pm,
was to determine if the trust is in existence. I did a mental short cut, when I read
the Professor’s posts as I had copied for reference in my post of Tuesday
September 24, 2002 at 11:03 am. The mental short cut, was that it dawned on me
that THE TRUST EXISTED because of the BASIC LEGAL NATURE OF A
TRUST UNDER TRUST LAWS. It also dawned on me, that trust laws in
commercial practice is akin to trust laws in international law. Having mentally
and legally reconciled for myself, the discrepancy between the wording in the
UN GAR 181 on the termination of the Mandate (i.e. trust) and the existence of
the trust (i.e Mandate), I proceeded to make this understanding available for the
benefit of others. I realized many of us had difficulty recognizing this nature of
trust in international law, as I had admitted so myself , on Tuesday October 08,
2002 at 3:53 pm “Initially, being untutored in international law, I too was
swayed, over whelmed, enticed, distracted by the UN SCR and the precise terms
in the UN GAR 181, where the latter in the same breath of partitioning also set a
date for termination of the Mandate.”
(3) There was to me no “legal” necessity to consider many of the other posts, for
I had in my earlier posts addressed those issues. The final post of Monday
September 23, 2002 at 5:18 pm, sums up the legal point :“…S Ames , You have
offered us your assessment, idea, notion of 'the Political Border' of Israel,
Palestine, City of Jerusalem as 'the Legal Border' of Israel, Palestine, City of
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Jerusalem, based on your notion of political constructs. Thus your political
arguments are not based on Legal constructs or legal premise. This comment
does not attempt to invalidate your political comment or idea or construct. This
and the precediing comments only endeavours to distinguish between your
Political Constructs and the Professor's Legal Constructs and to highlight the
distinction between the 2 different disciplines. In common parlance, one cannot
compare apples with oranges.”
(4) The key legal issue is , “Is the Mandate a trust?” That issue I too posed, on
Thursday September 05, 2002 at 8:35 am “…Leighton Professor of Law
Anthony D'Amato has led us to think that the Mandate is a trust. The question is,
“ Is it a trust ?”“Only if it is a trust, is it irrelevant that Palestine is not included
under any of the UN’s three (3) extensive Lists of Non-Self-GoverningTerritories since 1945: - Trust and Non-Self-Governing Territories, 1945-present
- Non-Self-Governing Territories listed by General Assembly - Trust Territories
that have achieved self-determination. If it is a trust, it is irrelevant that USA
attempts to create a temporary trusteeship for Palestine may not have succeeded.
If it is a trust, it is also legally un-necessary for USA to attempt to create a
temporary trusteeship for Palestine as there is already a trust, which has not been
fully discharged as the trust property has not been transferred to the other 2
entities, Arab state of Palestine and UN administration of the International City
for Jerusalem .”
(5) I never did really consider the legal issue of “Is the Mandate a trust?” as the
Mandate is a creature of international law, as I have oft repeated I am untutored
in international law. When I set out to prepare my post of Tuesday October 08,
2002 at 3:53 pm, I went on the legal basis that the Mandate is a trust.
(6) Once I accept the advice of the Professor that the Mandate is a trust, I drew
on all the basic laws of trust. In that way, I realized that the discrepancy between
the purported termination of the Mandate (i.e trust) and the existence of the
Mandate (i.e. the trust) was a red herring (i.e. not a legal issue).
(7) Thus I drew on my legal practitioner’s experience in commercial and
corporate laws where I have prepared trust and discharged trust, to make the
issue clear for others, particularly those of us who are untutored in international
law or laws on mandates under international law.
(8) I was approaching the issue from a legal stand point of the basic nature of
trust under trust laws. It therefore was un-necessary to read the fine print of the
Mandate the way you have read, once a Mandate is a trust at law. Once a
Mandate is a trust at law, all the basic rules of trust as we learn in law school and
in legal practice comes to play.
Nonetheless one day I will revert to your fine print reading of the Mandate , as
currently in addition to work commitments I am endeavouring to research and
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prepare a paper on Asean Free Trade and World Trade Organisation for Small
Medium Enterprises in Malaysia for late this year. As a citizen of an upper
middle income developing country, the regional crisis of late 1990’s and the
recent global slow down post September 11, 2001, has affected the ASEAN
region. National economies depend not jujst on the major players but also the
Small Medium Enterprises. Thus the survival and prosperity of the 40,000 Small
Medium Enterprises in Malaysia is of concern to me. While Malaysia is ranked
among the top 20-30 countries in the world for her competitiveness, the entry of
China into WTO has added much competition with relocation of some businesses
there as well as diversion of some foreign investment to China instead of to
Malaysia and the ASEAN region. Therefore the ability of Small Medium
Enterprises in Malaysia to effectively compete would be enhanced by their
understanding or better understanding of the advantages that are availed by
Asean Free Trade (like your NAFTA) and World Trade Organisation.
I note that there is another “Jerusalem” to the west of your place, Ann Harbour,
MI, USA
Yi Ling
Malaysia

Monday October 28, 2002 at 5:52 pm
I'd like to thank everyone who contributed to this forum. It seems we've reached
the end of the line. I hope that some of the contributors here who saw fit to post
huge sprawling messages will refrain from doing so as they participate in other
forums in the future. Email forums work if contributors keep their messages brief
and to the point. Otherwise, they tend to spread out over the entire landscape and
end up defeating themslves.
Anthony D'Amato
Northwestern Law School
Illinois, USA
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