Saturday, June 16, 2012
Forget politics – Who has legal right to Jerusalem?
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.