Yonah Bob -
The Jerusalem Post
Is there a simple answer to the question of who owns or has
the legal right to Jerusalem? Dr. Jacques Gauthier, a Canadian lawyer who
specializes in international law, answered that question on Wednesday with a
resounding yes and suggested that if a theoretical court that was 100-percent objective were to study the legally relevant facts, ignoring
politics, it would find unequivocally that only Israel possesses the exclusive
title to Jerusalem.
Gauthier was interviewed by The Jerusalem Post during a trip
he made to Israel for a June 11- 12 conference highlighting Jewish claims to
Jerusalem. He has been studying international law for 30 years, focusing on a
number of issues including human rights, and has not limited himself solely to
the Middle East. He studied in Geneva under Dr. Marcelo Kohen in 2006.
Gauthier’s thesis is 1200 pages, weighs 10 pounds and contains over 3200 footnotes.
Gauthier has presented his findings to the Japanese
parliament, the House of Commons in London, the European parliament in Brussels
and a congressional committee in Washington.
Gauthier, who is Christian, said that he became interested
in Jerusalem’s status after traveling to the city in 1982-1983.
Gauthier begins his overview of the issues with Theodore
Herzl in 1896-1897 and the Balfour Declaration of 1917, but the core of his
argument and its most original aspect is the emphasis he places on the San Remo
Conference of April 24-25, 1920.
The conference was a continuation of earlier gatherings held
by the victors of World War I to determine how to handle a vast array of
issues, including setting national borders for new nation-states and mandates.
Gauthier says that the San Remo Conference was the “final
hearing” of a “world court,” the council of the five leading nations and victors
of World War I. The “case”
before the “court” began at the Paris Peace Conference of 1919, where both the
Jews and the Arabs of the Middle East submitted claims to the council to obtain
independence and control of various territories. Gauthier calls April 24-25 in
San Remo the “key defining moment in history” on the issue of title to
Jerusalem and says that Chaim Weizmann called the decision the “most important
moment for the Jewish people since the exile.”
Gauthier is
not the first scholar to cite these conferences as supporting Jewish rights to
Jerusalem. However, what is
distinct about Gauthier’s claim is the argument that the conference is a
singular and decisive legal event that wipes out all competing legal events.
Like a real estate lawyer seeking to determine title, he
contends that just because there are many claims to title, it does not mean
that all events or claims are equal. He argues that it is possible to have one
single legal event that ends the discussion, and that the San Remo decision was
such an event.
The Jewish claim submitted to the world powers according to
Gauthier was for: the Jews’ standing to be recognized as a people under the law
of nations; the recognition of the Jewish historical connection to the area
then known as “Palestine”; and the
right to “reconstitute” Jewish historical
rights in Palestine.
The Arabs also made substantial claims to Ottoman territory,
but not specifically to Palestine or Jerusalem, says Gauthier.
The San Remo military and political leaders agreed to all of
the Jewish representatives’ requests. According to Gauthier, the British were
given a mandate over Palestine only until the Jews would be ready to take over
running a country, which is confirmed, he says, by Article 22 of the Covenant
of the League of Nations.
According to Gauthier, the case and all arguments are
basically over at this point. The
Jewish people were given “title” to Jerusalem under international law.
Gauthier concludes his analysis by rejecting the idea that
any later events – such as the UN Partition Plan, UN Resolution 242, or the
Oslo Accords – superseded Israel’s “title” to Jerusalem. He notes that the UN
charter and a famous International Court of Justice case about West Africa, or
Namibia, specifically uphold earlier decisions of major conferences and of the
League of Nations.
He argues that all Israel needs to do under UN Resolution
242 and the Oslo Accords is withdraw from some amount of West Bank territory,
and that Jerusalem is not mentioned in the UN resolution. He said that the UN
Partition Plan could have been binding, but since the Arab states did not
accept it, it became merely a recommended solution by the UN General Assembly
that was rejected.
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