The Myth of Historical Rights
No country recognizes Israel’s historical rights in Palestine, and for good reason. International law grants territorial rights only to peoples who have ruled a territory continuously. Historical claims from 2,000 years ago do not apply. If they did, Native Americans, Inuit, Sami, Aboriginal Australians, and others would be allowed to expel current inhabitants from their lands.
The Mandate System and Palestine
After World War I, the victorious powers sought to colonize former Ottoman and German territories. The United States resisted this idea, leading to the creation of “mandate territories.” Palestine was one such mandate. Under the mandate system, the local population had the right to the territory. However, an exception was made for Palestine: a “national home for Jews” was permitted to be established there.
Two crucial points emerge:
1. The language specified that this home would be “within” Palestine, not encompassing all of Palestine.
2. The term “home” has no legal meaning in international law, which recognizes states, colonies, and other types of territories, but not “homes.”
In Arthur Balfour’s mind, a “home” was akin to a protectorate or an elevated colony. As Jerome Slater writes in his book “Mythologies Without End”:
“The Balfour Declaration and the League Mandate were simply unilateral ukases of the leading colonial powers of the time, actions essentially of force, undertaken not only without regard to the rights and feelings of the local inhabitants but indeed in contradiction to the promises made to them earlier. As such, the promises to the Jews—even to the extent that the authors of the mandate were motivated by genuine moral commitment rather than simply colonial national interests—finally had no more legal or moral standing than any other colonialist actions.”
The Debate Over “Historical Connection”
Zionist leaders managed, with great effort, to include the phrase “historical connection” in the mandate text. Lord Curzon, the British Foreign Secretary responsible for the wording, found even this term excessive. He became so irritated that he removed the expression, only to have it reinserted behind his back. In a memo, Curzon wrote:
“I told Dr. Weizmann that I could not admit the phrase [historical connection, etc.] in the Preamble. And now I find that Mr. Vansittart has gone and put it back again. It is certain to be made the basis of all sorts of claims in the future. I do not myself recognize that the connection of the Jews with Palestine, which terminated 1200 [sic] years ago, gives them any claim whatsoever. On this principle we have a stronger claim to parts of France. I would omit the phrase…. I now find that, without my knowledge, the Committee have put it back…”
Chaim Weizmann confirms this in his autobiography, writing that his negotiators:
“fought the battle of the Mandate for many months. Draft after draft was proposed, discussed and rejected, and I sometimes wondered if we should ever reach a final text. The most serious difficulty arose in connection with a paragraph in the Preamble – the phrase which now reads: ‘Recognizing the historical connection of the Jews with Palestine.’ Zionists wanted to have it read: ‘Recognizing the historic rights of the Jews to Palestine.’ But Curzon would have none of it, remarking dryly: ‘If you word it like that, I can see Weizmann coming to me every other day and saying he has a right to do this, that or the other in Palestine! I won’t have it!’. As a compromise, Balfour suggested ‘historical connection,’ and ‘historical connection’ it was.”
Understanding Historical Rights
The distinction between “historical right” and “historical connection” is crucial. “Historical connection” is not a legal concept; it’s merely a loose phrase. Curzon, well-versed in international law, understood this distinction.
International law is partly based on custom: what most participants do over an extended period creates behavioral rules, rights, and obligations. These rules, rights, and obligations can grow or diminish over time.
When people discuss historical rights, they refer to the principle that if an action is performed for an extended period without objection, the right to continue that action is established. For example, fishermen who have fished for generations in another country’s territorial waters cannot be summarily expelled.
Historical rights can also apply to territories. A state could acquire historical rights by peacefully governing a territory for an extended period, even if that territory was initially conquered. If the displaced entity or government no longer made claims on the territory and other countries silently acquiesced, the historical rights grew faster, and the rights of the displaced entity faded. Silence implies consent.
Curzon argued that Jews could not have a historical right to Palestine after thousands of years of absence. As a reductio ad absurdum, he stated that Britain had a stronger claim to parts of France than Jews had to Palestine.
Competing Claims and Evolving International Law
Historical rights compete with other claims, principles, and rights. Around 1900, a new rule in international law began to emerge, stating that territory could no longer be acquired through war. This prohibition on conquest means that the historical right of a state that conquers territory through war grows much more slowly than before 1900. Consequently, Israel would need to peacefully occupy the Golan Heights and the West Bank for a much longer time to acquire rights there.
The growth of Israeli rights in the occupied territories is also slowed by the claims of Syria (on the Golan) and the Palestinians (on the West Bank), as well as by the fact that other countries deny Israel’s right to those territories. Thus, there is no tacit consent.
After World War II, the right to self-determination emerged and grew. This right states that a certain population in an administrative territory may determine the area’s future. This population (the people) has the right to establish an independent state. The right to self-determination, like the prohibition on conquest, will slow down or even prevent the growth of historical rights of an occupier.
It is now irrefutably established that Palestinians have the right to self-determination, meaning that their right takes precedence over any potential Israeli historical rights that might arise from the occupation of the West Bank after 1967.
In conclusion, the fact that Jews lived in Palestine 2,000 years ago does not give them historical rights, nor does the occupation since 1967.
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