From: HMAVERIK@aol.com

Subject: THE BRITISH MANDATE

To: mona@israelmail.com

It is submitted that the Mandate for Palestine has a primary and overriding purpose and object - namely, the establishment of the Jewish National Home in Palestine. All other duties of the Mandatory must be deemed to be subordinated to this primary object and no provision of the Mandate can properly be interpreted so as to entail any departure or derogation from this primary purpose. This is clear from the wording of the Mandate itself. The Preamble explains why the Mandate was created and sets out its purpose. The first clause of the Preamble declares it to be the intention of the Principal Allied Powers that Palestine should be administered under a Mandatory regime. The second clause proceeds to explain that the purpose of the Mandate is to put into effect the Balfour Declaration; accordingly the clause declares that the Mandatory shall be responsible for doing so. None of the remaining clauses of the Preamble make any mention of other purposes or objects. Manifestly, no other was intended. This is evident also from the contents of the third clause of the Preamble.

The British authorities themselves recognized that their first obligation was to help achieve the establishment of the Jewish National Home. Thus, the Colonial Office wrote to the Palestine Arab delegation in April 1922 that "the declaration, as you are aware, provided, first, for the establishment of a national home for the Jews in Palestine; and, secondly, for the preservation of the rights and interests of the non Jewish population of the country."

This is also evident from the fact that immediately after the first Article conferring upon the Mandatory the necessary powers of legislation and administration to carry out the Mandate, Article 2 begins with a proviso that the Mandatory shall "be responsible for placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish National Home, as laid down in the Preamble..." The effect of the remaining part of Article 2 will be considered later. That the primary purpose of the Mandate is the establishment of the Jewish National Home is made further apparent by Articles 4, 6, 7, and 11 of the Mandate. The Peel Commission accepted this conclusion after careful study. It stated that unquestionably ... the primary purpose of the Mandate as expressed in the Preamble and in its Article is to promote the establishment of the Jewish National Home." (Peel Report, page 39).

This view has been held by many leading British statesmen, including those who were responsible for the Balfour Declaration and the drafting of the terms of the Mandate or who, as British officials, were in the best position to know how their Government understood the Declaration and the Mandatory's obligations.

Reference has already been made to the fact that former Prime Minister Neville Chamberlain, former Foreign Secretary Sir Samuel Hoare and others signed a Memorial urging the British Government to accept a Mandate under the League of Nations for the administration of Palestine "with a view to its being reconstituted the National Home for the Jewish People."

That it is proper to consider what transpired before the mandate was conferred, what was said regarding its purpose at British Cabinet meetings and in negotiations between Britain's government and other Allied and Associated Powers, is clear from the following statement of the international law on the subject: "It is a well-established rule in the practice of international tribunals that so-called preparatory work (travaux preparatoires) - i.e. the record of negotiations preceding the conclusion of a treaty, the minutes of the plenary meetings and of committees of the Conference which adopted a convention, the successive drafts of a treaty, and so on - may be resorted to for the purpose of interpreting controversial provisions of a treaty. The Permanent Court of International Justice has frequently affirmed the usefulness of preparatory work.... the Court itself has in fact had resort to preparatory work even when in its view the treaty was clear. The deliberation and publicity accompanying the successive stages of the negotiations and conclusion of treaties are such as to render this kind of evidence of particular value."'

In appearing on behalf of His Majesty's Government at the Seventh Session of the Permanent Mandates Commission, the Accredited British Representative, Mr. Ormsby-Gore (now Lord Harlech) said "it was, after all, the Balfour Declaration which was the reason why the British Government was now administering Palestine."' As was previously pointed out, the Duke of Devonshire stated in 1923, when he was Colonial Secretary, that "the Balfour Declaration was the basis on which we accepted from the Principal Allied Powers the position of Mandatory Power in Palestine." In Command Paper 1989, published October 4, 1923, the British Government made the following statement: "the keynote of British policy in Palestine ... is to be found in the Balfour Declaration ... The policy of the Declaration ... formed an essential part of the conditions on which Great Britain accepted the Mandate for Palestine..." On another occasion, Mr. Ormsby-Gore, then Under Secretary of State for the Colonies, said in the House of Commons on April 30, 1929: "I am certain that every Government will do what they can to facilitate the realization of the Zionist aim, policy and ideals, as governed by the terms of the Mandate in the terms of the Balfour Declaration." Similarly Sir Philip Cunliffe-Lister, now Lord Swinton, then Secretary of State for the Colonies, said on January 7, 1932: "Successive British Governments have sought zealously and fairly to discharge their responsibility of giving effect to Lord Balfour's famous Declaration ... In this matter, policy is constant, though Governments change."'

This view of British statesmen was also shared by members of the Permanent Mandates Commission of the League. In a report submitted to the Twenty- Seventh Session of the Commission 1935, its rapporteur, Mr. Palacios, stated: "As Rapporteur, I consider that it is not for the Mandates Commission to reconsider the Balfour Declaration which is the very soul of the Mandate."

Again, at the thirty-sixth Session of the Permanent Mandates Commission in June 1939, one of its members, M. Van Asbeck stated in criticizing the MacDonald White Paper of 1939: "both the Mandate and the Balfour Declaration contained one paramount obligation, namely the foundation of a Jewish National Home, that was the primary purpose of the Mandate as outlined in its Preamble."

M. van Asbeck went on to say that he disapproved of the way in which the second paragraph of the White Paper presented the "three main obligations" and "demurred" to the rather subordinate place allotted to the real paramount obligation. The novel feature of the Balfour Declaration, he pointed out, was that for the first time it gave an official promise of British assistance toward the realization of Zionist aspirations which could be summed up in the phrase that "the Jews would cease to be a minority in one part of the world." He added: "it was therefore, quite natural that Britain and the Allies should in the first years after the Declaration have talked about the future Jewish Commonwealth foreshadowed in the Balfour Declaration. There is ample evidence in official statements of His Majesty's Government that ab initio they regarded the policy of establishing the Jewish National Home as the central purpose of the Mandate. This was their original intention and hence it is far more important to determine what was their understanding of the matter at that time than years later when exterior political considerations may have prompted them to modify their views."

Thus, for example, the British Foreign Office wrote to the United States Ambassador in London on December 29,1921: "So far as Palestine is concerned, Article 11 of the Mandate expressly provides that the Administration may arrange with the Jewish Agency mentioned in Article 4 to develop any of the natural resources of the country in so far as these matters are not directly undertaken by the Administration. The reason for this is that in order that the policy of establishing in Palestine a national home for the Jewish people should be successfully carried out, it is impracticable to guarantee that equal facilities for developing the natural resources of the country should be granted to persons or bodies who may be actuated by other motives."'

Similarly, the British Government stated in a note of July 1, 1928, to the Cardinal Secretary of State as follows: "Cardinal Gasperri also alludes to Article 11 of the draft Mandate in support of his contention that the Jews are to be given a privileged and preponderating position as against other nationalities and creeds. His Majesty's Government regard the provision by which the Administration may arrange with the Jewish Agency mentioned in Article 4 to construct or operate upon fair and equitable terms any public works, services or utilities, and to develop any of the natural resources of the country in so far as these matters are not directly undertaken by the Administration, as legitimate recognition of the special situation which arises in Palestine from the charge (of establishing in Palestine a National Home for the Jewish People) which has been laid upon them by the Principal Allied Powers, and also of the fact that the Jewish people, in virtue of that policy, are ready and willing to contribute by their resources and efforts to develop the country for the good of all its inhabitants."

Bibliography: Palestine Royal Commission Report; Richard Meinerzhagen, Middle- East Diary.