Full Ebook of International Law and The Arab Israeli Conflict Robbie Sabel Online PDF All Chapter
Full Ebook of International Law and The Arab Israeli Conflict Robbie Sabel Online PDF All Chapter
https://ebookmeta.com/product/the-arab-israeli-conflict-a-
ringside-view-1st-edition-p-r-kumaraswamy/
https://ebookmeta.com/product/military-aspects-of-the-israeli-
arab-conflict-1st-edition-louis-williams/
https://ebookmeta.com/product/the-routledge-atlas-of-the-arab-
israeli-conflict-10th-edition-martin-gilbert/
https://ebookmeta.com/product/historical-dictionary-of-the-arab-
israeli-conflict-2nd-edition-p-r-kumaraswamy/
The Arab-Israeli Conflict. An Introduction and
Documentary Reader, 3rd Edition Gregory S. Mahler
https://ebookmeta.com/product/the-arab-israeli-conflict-an-
introduction-and-documentary-reader-3rd-edition-gregory-s-mahler/
https://ebookmeta.com/product/international-law-and-armed-
conflict-fundamental-principles-and-contemporary-challenges-in-
the-law-of-war-2nd-edition-blank/
https://ebookmeta.com/product/scandinavian-diplomacy-and-the-
israeli-palestinian-conflict-official-and-unofficial-soft-
power-1st-edition-nir-levitan/
https://ebookmeta.com/product/overcoming-the-retributive-nature-
of-the-israeli-palestinian-conflict-1st-edition-thomas-l-saaty/
https://ebookmeta.com/product/international-conflict-and-
security-law-a-research-handbook-1st-edition-ella-ben-hagai/
INTERNATIONAL LAW AND THE
ARAB-ISRAELI CONFLICT
ROBBIE SABEL
Hebrew University of Jerusalem
University Printing House, Cambridge CB2 8BS, United Kingdom
One Liberty Plaza, 20th Floor, New York, NY 10006, USA
477 Williamstown Road, Port Melbourne, VIC 3207, Australia
314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India
103 Penang Road, #05–06/07, Visioncrest Commercial, Singapore 238467
www.cambridge.org
Information on this title: www.cambridge.org/9781108486842
DOI: 10.1017/9781108762670
© Robbie Sabel 2022
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2022
A catalogue record for this publication is available from the British Library.
Library of Congress Cataloging-in-Publication Data
Names: Sabel, Robbie, author.
Title: International law and the Arab-Israeli conflict / Robbie Sabel, Hebrew University of
Jerusalem.
Description: Cambridge, United Kingdom ; New York, NY : Cambridge University Press, 2022. |
Includes bibliographical references and index.
Identifiers: LCCN 2021057953 (print) | LCCN 2021057954 (ebook) | ISBN 9781108486842
(hardback) | ISBN 9781108708357 (paperback) | ISBN 9781108762670 (epub)
Subjects: LCSH: Israel–International status. | Palestine–International status. | Arab-Israeli conflict–
Law and legislation.
Classification: LCC KZ4282 .S233 2022 (print) | LCC KZ4282 (ebook) |
DDC 341.4/2095694–dc23/eng/20220202
LC record available at https://lccn.loc.gov/2021057953
LC ebook record available at https://lccn.loc.gov/2021057954
ISBN 978-1-108-48684-2 Hardback
ISBN 978-1-108-70835-7 Paperback
Cambridge University Press has no responsibility for the persistence or accuracy
of URLs for external or third-party internet websites referred to in this publication
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
CONTENTS
v
vi
Index 427
ABBREVIATIONS
xvi
xvii
UNSC United Nations Security Council
UNSCOP United Nations Special Committee on Palestine
UNTS United Nations Treaty Series
UNTSO United Nations Truce Supervision Organisation
UNWRA United Nations Relief and Works Agency for Palestine
Refugees in the Near East
Yale J. Int’l L. Yale Journal of International Law
u
Introduction
1
Ezer Weizman, The Battle for Peace (1981), p. 350.
2
Malcolm Shaw, International Law (9th ed. 2021), 1200 pages.
the documents and law articles on the Arab-Israeli conflict.3 It ran to
3 volumes and 1,300 pages, and that was before Camp-David, the Egypt–
Israel Peace Treaty and the Oslo agreements. Of course, the solution was
a compromise. In an attempt to deal only with legal issues, in the chapter
on water resources, for example, I have omitted enumerating the quan-
tities of water in dispute. This, although the numerous academic articles
on water resources in the area view, perhaps correctly, the quantities as
the major factor in dispute. I have tried to introduce each issue with a
very concise explanation of the historical background and the legal issues
involved and hope that readers who are interested will do further read-
ing. As a general introduction to the political background to the dispute,
I would recommend Dowty’s book, Israel/Palestine.4
Another dilemma faced was whether to enumerate the multitude of
suggestions and proposals for settling the Arab-Israeli disputes. The
compromise I have chosen is only to examine those proposals coming
from official sources that contained legal elements and were evaluated by
the parties. This means that I have had to ignore important private
initiatives such as the ‘Geneva initiative’5 even though politically prom-
inent persons were involved, but they were acting in their
private capacity.
The first seventeen chapters deal with legal issues chronologically, the
remaining chapters deal with specific issues such as the status of
Jerusalem and navigation through international watercourses.
A major issue faced was whether to write a dispassionate anodyne
description of the legal issues or to promote my personal views. I served
for nearly thirty years in the Israel Foreign Service, so any claim that I am
a completely disinterested objective observer might well be met with
incredulity. The path I have chosen is to try to give an objective descrip-
tion of the different views on each subject, quoting proponents of Arab
and Israel legal positions. This, I believe, allows readers to make their
own assessment, though in many cases, I then add my own assessment of
the legal situation.
3
John Norton Moore, ed., The Arab-Israeli Conflict (1974).
4
Alan Dowty, Israel/Palestine (4th ed. 2017).
5
https://geneva-accord.org/projects/. The principal drafters were Yossi Beilin from Israel
and the Yasser Abed Rabbo from Palestine.
1
1
W. Levi, Law and Politics in the International Society (1976), p. 187.
2
C. Krauthammer, ‘The Curse of Legalism’, The New Republic 201 (1989), p. 44.
3
Henry Kissinger, Diplomacy (1994).
?
nuclear understanding with Iran was termed a ‘Joint Comprehensive
Plan of Action’ and not a treaty, although the prime motive in using
such a definition presumably was to avoid the need for congressional
approval.
Despite the predominance of realpolitik in policy discussions, it
remains the case, as Henkin put it, that ‘almost all nations observe almost
all principles of international law and almost all of their obligations
almost all of the time’.4 The cynical comments of Levy and
Krauthammer may reflect the outlook of the realist school of inter-
national relations, but the reality of diplomatic life shows that inter-
national law is an integral part of the nitty-gritty of international
relations. In most negotiations, there is a desire to garner third-party
support for the positions advanced by the parties involved in the negoti-
ations. Even where the third party may have political sympathy for the
position of one of the sides, it is important that such third party also be
assured that it is supporting a position that is legally correct. Neutral and
disinterested States who follow the negotiations will find it easier to
support a claim they consider legal; conversely, they will be reluctant,
at least openly, to support a claim they consider illegal. Bowie writes, as
regards the 1956 Suez crisis, ‘by resting its access to the Straits of Tiran
on the general right under international law, Israel enabled the U.S. to
commit itself to vindicating that right before Israel’s withdrawal without
seeming to undercut Hammarskjold or the United Nations’.5 An act or
claim that is seen to be in violation of international law will seldom
obtain international support. Establishing a position based on claimed
rights under international law is important not only vis-à-vis third
parties but as a basis for negotiations with the opposite party.
Particularly in territorial disputes, it is normally only possible to negoti-
ate a compromise after a party has established a claim of right. Another
factor lending to the relevance of international law is that the aim of all
international negotiations is, normally, to reach an agreement that obli-
gates the negotiators – in other words, to reach a binding international
agreement or treaty. Henkin writes ‘all international relations and all
foreign policies depend in particular on a legal instrument – the inter-
national agreement – and on a legal principle – that agreements must be
4
L. Henkin, How Nations Behave (2nd ed. 1979), p. 47.
5
R. R. Bowie, Suez 1956 – International Crises and the Role of Law (1974), p. 110. Robert
Bowie was founder of Harvard University’s Centre for International Affairs and former US
State Department director of Policy Planning Staff.
.
carried out’.6 The criteria whereby it will be judged whether an agree-
ment reached is binding on the parties will be the criteria of international
law. International law lays down substantive conditions for classifying a
document as a treaty. The language of agreements is the language of
international law, and international lawyers will interpret the terms of
any agreement using the tools of international law.
Although precedents are not binding in international law,7 they play a
very useful role in international negotiations or in the form of State
practice, when one side makes a claim that a particular precedent reflects
customary international law. Following precedents also means following
a well-trodden path, which has already been subjected to public and legal
scrutiny. Governments, political leaders and negotiators are inherently
cautious. Every young bureaucrat is, with good reason, instructed to
abide by the old platitudes of ‘don’t reinvent the wheel’, and ‘if it ain’t
broke don’t fix it’. If a legal formula has been used and accepted by States,
preferably, the States involved in the negotiations, then it should not
be changed.
6
Henkin, How Nations Behave, p. 319.
7
Lord Denning stated that the ‘international law knows no rule of stare decisis’. Trendtex
Trading Corporation v. Central Bank of Nigeria, [1977] QB at 554.
?
to turn the Orient ‘from alien into colonial space’.8 Allain writes that
international law in the Middle East was ‘simply another political tool of
statecraft used by the strong against the weak’.9 Mazzawi writes, about
the Arab-Israeli conflict, ‘very many aspects of this problem, if not all,
had a distinctly legal character. But law has not had a role in this dispute,
and neither the United Nations nor the League of Nations before it have
seen fit to resort to legal principles in their quest for a solution to the
problem’.10 Kurtzer’s book on negotiating Arab-Israeli peace recom-
mends that a future mediator’s team should include ‘legal expertise’,
however, the writers of the book did not include a lawyer among the
many persons interviewed.11
Nevertheless, international law has played a role in the Arab-Israeli
conflict. The Crown Prince of Jordan writes, perhaps unduly optimistic-
ally, ‘analysis of those legal issues which are considered central to the
current Arab-Israeli dispute can play a useful role in any attempt to move
towards reconciliation of the disputants, the preparation of a dialogue
between them and other interested parties and preparing the foundations
of the proposals for future peaceful relations in the area’.12
A particularly salient factor in establishing the relevance of inter-
national law in the ongoing Arab-Israeli dispute has been the search by
both parties to establish legitimacy. Fisher writes, correctly I believe,
‘legitimacy and lawful authority are key components of political power’.13
Kattan writes, interestingly, ‘international law was pivotal to the devel-
opment of the Jewish national home’,14 public international law ‘was the
very vehicle through which the Zionist project was to brought to
fruition’.15
8
Edward Said, Orientalism: Western Conceptions of the Orient (1995), p. 211.
9
Jean Allain, ‘Orientalism and International Law: The Middle East as the Underclass of the
International Legal Order’, Leiden Journal of International Law 17 (2004), pp. 391–404,
392.
10
Musa Mazzawi, ‘Book Review, Henry Cattan. Palestine in International Law – The Legal
Aspects of the Arab Israeli Conflict (1973)’, Journal of Palestine Studies 3, no. 4 (Summer
1974), pp. 141, 143.
11
Daniel C. Kurtzer and Scott B. Lasensky, Negotiating Arab-Israeli Peace (2008), p. 63.
12
Hassan bin Talal, Palestinian Self Determination: A Study of the West Bank and Gaza
Strip (1981), p. 21.
13
R. Fisher, International Crises and the Role of Law: Points of Choice (1978), p. 12.
14
V. Kattan, From Coexistence to Conquest: International Law and the Origins of the Arab-
Israeli Conflict, 1891–1949 (2009), p. 22.
15
Ibid., p. 21.
.
There are also specific historical reasons as to why international law is
particularly relevant to the Arab-Israeli conflict. The Allies in the World
War I, in their attempts to rearrange the former Ottoman Empire, were,
perhaps, the first to introduce international legal elements to the Middle
East. In the nineteenth century, the allies might have been able to annex
unilaterally the territories of the Ottoman Empire as French or British
colonies, but by 1918, this was no longer the case. Thus, we find the
Allies negotiating with Turkey the formal renunciation of Turkish
territory outside Asia Minor,16 and the introduction of the Mandate
system as a compromise between colonialism and the right of self-
determination. Although in 1918 the principle of self-determination
was not a legal principle, nevertheless the Allies felt obliged to take it
into their consideration. They granted self-determination to all the
Arabs in the former Ottoman Empire but, as regards Palestine, they
treated it as a special case, delaying the application of self-determination
until the displaced Jews could return to their country and eventually
become a majority.
World public opinion continues to address the dispute between Israel
and the Palestinians in the terminology of international law. Many legal
arguments addressed to the other side during negotiations, in confer-
ences or in political speeches are often intended for third parties and for
world public opinion. International law has become the lexicon of
international legitimacy. This would explain why all sides invoke it. As
the lingua franca of the Arab-Israeli conflict, international law is a
common language that everyone understands and invokes, usually, to
criticise the other side.
Both the Zionist movement and, later, the Palestinian national move-
ment made strenuous efforts to obtain international legitimacy based on
international law. Herzl, in his book about the proposed Jewish State,
wrote, ‘the land which the Society of Jews will have [sic] secured by
international law’.17 This search for legitimacy was considered vital in the
early years of the Zionist movement as, at the time, it had no territorial
jurisdiction and depended on the good will of the Western States and
16
‘The Treaty of Peace between the Allied Powers and Turkey (Treaty Sèvres), 10 August
1920’, AJIL 15 (Supp. 1921) (not ratified), p. 179; ‘Treaty of Peace between the Allied
Powers and Turkey (Treaty of Lausanne), 24 Jul. 1923’, AJIL 18 (Supp. 1924), p. 1.
17
T. Herzl, The Jewish State der Judenstaat (1896), p. 18, translated from the German by
S. D’Avigdor, and adapted from the edition published in 1946 by the American Zionist
Emergency Council, www.mideastweb.org/jewishstate.pd.
?
world public opinion. The Zionist movement worked to transfer the
political promise of a ‘national home in Palestine’ contained in the
1917 Balfour Declaration18 into ‘hard’ international law. The Zionist
movement persuaded the British and French governments to incorporate
the text of the Balfour Declaration into the treaty whereby the two
powers divided the Middle East between them19 and later to get the
unanimous approval of the Council of the League of Nations for the text
to be included in the 1922 Mandate for Palestine.20 The British 1922
‘White Paper’ confirmed again that the Jewish People were in Palestine
‘as of right and not on the [sic] sufferance. That is the reason why it is
necessary that the existence of a Jewish National Home in Palestine
should be internationally guaranteed, and that it should be formally
recognized to rest upon ancient historic connection’.21
Since 1948, and particularly since 1967, the Palestinian national move-
ment, regarding itself as the weaker partner in its dispute with Israel, has
also sought to buttress its position by reliance on rights that it claims
under international law. The Palestinian legal emphasis is largely based
on the premise that they were the indigenous population entitled to self-
determination and that the Jewish settlers are colonialists. Israel’s pos-
ition is that the creation of the State of Israel was based on the right of
self-determination of the Jewish people. The Third World, to a great
extent, has voted against Israel at the United Nations where the
Palestinian position has been buttressed by a wealth of General
Assembly resolutions. The Palestinian contention is that these reso-
lutions reflect the view of the international community as to the legal
issues involved. A factor lending relevance to such resolutions is that the
League of Nations and later the UN have been deeply involved in the
Arab-Israeli conflict and the International Court of Justice has relied
upon these various United Nations resolutions.22 A feature of the
Palestinian position is their demand that any future agreement between
them and Israel must reflect ‘international legitimacy’ as expressed in
such UN resolutions. Ziad Abu-Amr writes, ‘the UN participation [in
18
Balfour Declaration (1917), http://avalon.law.yale.edu/20th_century/balfourasp.
19
Resolution of the 1920 San Remo Conference, November 1917, www.cfr.org/Israel/san-
remo-resolution/p15248.
20
1922 League of Nations Mandate for Palestine, http://avalon.law.yale.edu/20th_century/
palmanda.asp.
21
The 1922 British White Paper on Palestine, http://avalon.law.yale.edu/20th_ century/
brwh1922.as.
22
See ICJ Advisory Opinion Construction of a Wall, ICJ Reports 2004.
.
negotiations] is particularly important from the Palestinian point of view
because the UN represents international legitimacy’.23 Palestinian nego-
tiators tend to regard it as vitally important to establish a right based on
international law and not to be in a position where they have to negotiate
such a right. This approach is reflected in the Palestinian insistence on
Israel recognising the ‘right of return’ of the Palestinian refugees reflected
in UNGA Resolution 194,24 although stating that once the principle is
accepted, the actual number of refugees to be returned can be negoti-
ated.25 The Palestinians hope that such a requirement can help to offset
the perceived advantage that Israel has in any bilateral negotiations. The
counter Israeli view is that UN General Assembly resolutions do not
create international law. The drafters of the UN Charter knowingly
refrained from granting the Assembly such power, and UN General
Assembly resolutions do not necessarily even reflect existing law. This
view is reflected in Weil’s statement that ‘neither is there any warrant for
considering that by dint of repetition, non-normative resolutions can be
transmuted into positive law through a sort of incantatory effect’.26
Furthermore, the Israeli view is that parties to an agreement are free
together to make their own decisions as to the relations between them,
provided there is no violation of a jus cogens rule.
One explanation for this attention to international law is that a
position that is seen to be in violation of international law will not obtain
international support. The lack of such support can have real-life conse-
quences. A salient example of this is the controversy over Israeli settle-
ments in the West Bank, a controversy based nearly exclusively on the
interpretation of an Article in one of the 1949 Geneva Conventions.27
Based on this legal interpretation, Israel’s settlement policy has been
repeatedly condemned by Israel’s allies in Europe and by the UN
Security Council.
23
Ziad Abu-Amr, ‘Palestinian-Israeli Negotiations: A Palestinian Perspective’ in Steven L.
Spiegel, ed. The Arab-Israeli Search for Peace (1992), p. 29.
24
UN Doc. A/RES/194 (III), 11 December 1948.
25
See O. M. Dajani, ‘Shadow or Shade? The Roles of International Law in Palestinian-Israeli
Peace Talks’, Yale J. Int’l L. 32 (2007), p. 61.
26
P. Weil, ‘Towards Relative Normativity in International Law’, AJIL 77 (1983), pp. 413,
417.
27
Art. 49, Geneva Convention Relative to the Protection of Civilian Persons in Time of War
(Fourth Geneva Convention) (1949), 75 UNTS 287 (1949).
?
Terms used in the various agreements made between Israel and her
neighbours, such as ‘general armistice’,28 ‘autonomy’,29 or ‘freedom of
navigation’30 carry with them the interpretation and technical meaning
of terms of international law. For example, the term ‘autonomy’ clearly
implies non-independence. It is used when a State grants ‘a group that
differs from the majority. A means by which it can express its distinct
identity’.31 The phrase appears in the Camp David Framework32 but not
in the Oslo accords. The substance of the powers allocated to the
Palestinian Authority under the Oslo Accords is very similar to that
envisaged in the Camp David Framework. The omission of the term
‘autonomy’ from the Oslo Agreements was, presumably, to negate any
Palestinian apprehension that they were agreeing to be an autonomous
area under Israel sovereignty. The Oslo II (Interim Agreement) states,
‘Israel shall continue to exercise powers and responsibilities not so
transferred [to the Palestinian Authority]’.33 This seemingly anodyne
clause, in fact, could be interpreted as meaning that the West Bank
continues to be under Israel military occupation as only some of the
powers of the military government were being devolved to the
Palestinian Authority.
Another example, the phrase ‘equitable utilization of joint water
resources’, which appears in the Oslo accords,34 may have seemed to
the political negotiators as a banal euphemism for good neighbourly
behaviour. The international lawyers involved, however, know that it
can be interpreted as a technical term that carries with it the baggage
of numerous rules and precedents of the international law relating to
water resources.
28
See, e.g., Egypt–Israel General Armistice Agreement, signed in Rhodes on 24 February
1949, www.usip.org/sites/default/files/file/resources/collections/peace_agreements/ie_
armistice_1949.pdf.
29
‘Camp David Accords; September 17, 1978’, Yale Law School Lillian Goldman Library
The Avalon Project, Documents in Law, History and Diplomacy, http://avalon.law.yale
.edu/20th_century/campdav.asp (‘Camp David Accords’).
30
‘Freedom of Navigation through International Waterways’, UNSC Resolution 242,
22 November 1967, UN Doc. S/RES/242 (1967).
31
R. Lapidoth, Autonomy: Flexible Solutions to Ethnic Conflicts (1997), p. 33.
32
‘Camp David Accords’.
33
Article I(1) Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip,
28 September 1995, Israel Ministry of Foreign Affairs, www.mfa.gov.il/mfa/%20foreign
policy/peace/guide/pages/the%20israeliPalestinian%20interim%20agreement.aspx.
34
Annex II, Article 1, 1993 Israel PLO Declaration of Principles on Interim Self-Government
Arrangements, http://avalon.law.yale.edu/20th_century/isrplo.asp.
.
The legal analysis of terms has also been applied to examining the text
of UN Resolutions. The best-known controversy in this regard is, per-
haps, regards UN Resolution 242. The preamble to this Resolution states:
‘Emphasising the inadmissibility of the acquisition of territory by war.’35
One interpretation of this phrase is that Israel ‘could not gain any
territory as a result of the recent conflict’ and consequently had to
withdraw from all the territory of the West Bank and Gaza.36 Julius
Stone objects to this interpretation, commenting that ‘Arab state-
favoured’ interpretation ‘would end with a rule encouraging aggressors
by insuring them in advance against the main risks involved in case of
defeat’.37
Although precedents are not binding in international law, the Arab-
Israeli peace process is replete with the use of precedents. The text of the
Egypt–Israel Peace Treaty comprises, to a large extent, cut and paste
quotations from the UN Charter, the 1970 Declaration of Principles on
Friendly Relations between States38 and UN Security Council Resolution
242.39 The language of the Israel–Jordan Peace treaty was taken, nearly
verbatim, from the text of the Egypt–Israel Peace Treaty even though
both sides were aware that some of the earlier phrasings, such as the
dispute settlement clause, had aroused problems of interpretation. The
Jordanian position was that if it had worked, albeit imperfectly, for Egypt,
then they preferred that to negotiating a new formula.40 The language of
the 1993 Israel–PLO Declaration of Principles41 closely followed the
language of the 1978 Camp David Accords.42 In each case, it might quite
well have been possible to negotiate language that was more appropriate,
but it would have extended negotiations considerably. When both sides
35
Preamble, UN Security Council Resolution 242 concerning the Establishment of Peace in
the Middle East, adopted 22 November 1967, UN Doc. S/RES/242 (1967).
36
J. McHugo, ‘Resolution 242: A Legal Reappraisal of the Right-Wing Israeli Interpretation
of the Withdrawal Phrase with Reference to the Conflict between Israel and the
Palestinians’, ICLQ 51 (2002), pp. 851, 865.
37
Julius Stone, Israel and Palestine: Assault on the Law of Nations (1981, 1982), p. 54. The
different interpretations of UNSC Resolution 242 are dealt with in Chapter 11.
38
Declaration of Principles of International Law concerning Friendly Relations and
Cooperation among States in Accordance with the Charter of the United Nations,
Annex to UNGA. Resolution 2625 XXV (1970).
39
UN Security Council Resolution 242 concerning the Establishment of Peace in the Middle
East, adopted 22 November 1967, UN Doc. S/RES/242 (1967).
40
D. Reisner, ‘Peace on the Jordan’, Justice 4 (1995), pp. 3, 4.
41
1993 Israel PLO Declaration of Principles on Interim Self-Government Arrangements,
http://avalon.law.yale.edu/20th_century/isrplo.asp.
42
‘Camp David Accords’.
?
reported home to their governments, one can assume that they would not
have been subject to criticism for agreeing to a text that was taken
verbatim from previous agreements and from basic UN documents.
For this reason, one will find references to UN Security Council
Resolution 242 and quotations from it in every major agreement signed
between Israel and the Arabs. Not that Resolution 242 is a panacea but
rather because the negotiators were aware that it is a formula that has
been accepted by all parties concerned and hence can be quoted or
referred to without fear of incurring the wrath of one’s home government
or parliament. A similar logic is also reflected in the way Palestinian
diplomats craft UN resolutions. In order to obtain as much support as
possible, they follow language either that has been used in previous UN
resolutions or that is aligned with US and European positions.
Finding a legal procedure for administering a crisis can, at times, be as
important as the actual outcome of the procedure. It can be an event such
as the Madrid Conference, which although only a platform for set
speeches, nevertheless, provided the opening for the Arab States and
for the Palestinians to commence direct negotiations with Israel. In the
Taba dispute between Israel and Egypt, Israel insisted on a process of
conciliation and Egypt demanded immediate arbitration. A convoluted
legal formula was worked out whereby the arbitration was to commence,
then be suspended to enable a conciliation commission to function, and
should conciliation fail, arbitration would automatically continue. Both
sides claimed a legal victory.43 When negotiating the Oslo Declaration of
Principles with the Palestinians, the question arose as to whether the
result would be a legally binding treaty, which would then require
registration with the UN. The problem was that only agreements signed
by sovereign States, or intergovernmental international organisations,
can be registered with the UN, and Israel was not about to acknowledge
the PLO as a sovereign State. On the other hand, both Israel and the PLO
intended the declaration of principles to be a binding legal instrument.
The legal formula found was to have the document attested to, as
witnesses, by the leaders of the United States, Russia and the EU and
then request the Secretary General of the UN to circulate the accord to all
members of the UN. Thus, there was no formal act implying that it was
an international agreement but a very effective declaration by the parties
that they intended to abide by what they had signed.
43
See, inter alia, E. Lauterpacht, ‘The Taba Case: Some Recollections and Reflections’, Isr.
L. Rev. 23 (1989), p. 443.
.
The elements shaping the Arab-Israeli conflict undoubtedly are mili-
tary, political, religious and economic interests. International law cannot,
in and of itself, solve disputes as to these issues nor can it provide security
nor produce friendships between nations. Nevertheless, international law
can make and has made a serious contribution. Perhaps the major
contribution of international law is that it enables States to reach agree-
ments that delimit boundaries. Good fences make for good neighbours.
The permanent nature of boundaries is one of the major contributions of
international law to the international community. The automatic adop-
tion by Egypt, Jordan and Israel of the old Mandatory boundaries as the
boundaries between them was a clear manifestation of this principle. The
Mandatory boundary with Egypt was, furthermore, adopted from the
Ottoman era boundary delimited in 1906. Israel and the Palestinians
eventually will also have to reach an agreement on a boundary.
44
J. L. Brierly, ‘Preface to the First Edition’, Andrew Clapham, ed. Brierly’s Law of Nations
(7th ed. 2012–2014), p. v.
2
1
The phrase apparently appeared for the first time in print in the New York Times of
12 May 1860.
2
Jon Kimche, Seven Fallen Pillars: The Middle East, 1915–1950 (1950), p. 25.
. –
2.2 McMahon–Sharif Hussein Correspondence
The McMahon–Hussein correspondence was an exchange of letters,
secret at the time, between Sir Henry McMahon, the British high com-
missioner in Egypt, and Hussein, the Sharif of Mecca.3 The British
wanted Hussein’s support in their war with the Ottomans. Sharif
Hussein was the guardian of the Muslim Holy Places and as such was
seen by Britain as a potential leader of the Arab world; Hussein claimed
he could speak on behalf of the whole ‘Arab Nation’. In exchange for
Hussein’s promise to rebel against the Ottomans, Britain provided finan-
cial support, military advice, given by T. H. Lawrence (Lawrence of
Arabia),4 and, most important in the context of this study, a promise
to support Arab independence. McMahon and Hussein exchanged cor-
respondence on this issue over a number of months. The McMahon
letter to Hussein of 24 October 1915 is usually regarded as the key
document in this correspondence. In this letter McMahon writes to
Hussein:
I have received your letter of the 29th Shawal, 1333, with much pleasure
and your expression of friendliness and sincerity have given me the
greatest satisfaction.
I regret that you should have received from my last letter the impression
that I regarded the question of limits and boundaries with coldness and
hesitation; such was not the case, but it appeared to me that the time had
not yet come when that question could be discussed in a
conclusive manner.
I have realised, however, from your last letter that you regard this
question as one of vital and urgent importance. I have, therefore, lost
no time in informing the Government of Great Britain of the contents of
your letter, and it is with great pleasure that I communicate to you on
their behalf the following statement, which I am confident you will receive
with satisfaction. -
The two districts of Mersina and Alexandretta and portions of Syria lying
to the west of the districts of Damascus, Homs, Hama and Aleppo cannot
3
Correspondence between Sir Henry McMahon, His Majesty’s High Commissioner at
Cairo and the Sharif Hussein of Mecca, July 1915–March 1916, 1939. Cmd. 5957. For
the historical background, see Timothy J. Parris, Britain, the Hashemites and Arab Rule
1920–1925: The Sherifian Solution (2003), pp. 19–26. The full text was never officially
published. For an explanation, see Isaiah Friedman, The Question of Palestine: British-
Jewish-Arab Relations: 1914–1918 (2nd ed. 1992), p. 65.
4
Described in T. E. Lawrence, Seven Pillars of Wisdom a Triumph (1935).
be said to be purely Arab, and should be excluded from the limits
demanded. With the above modification, and without prejudice to our
existing treaties with Arab chiefs, we accept those limits.
As for those regions lying within those frontiers wherein Great Britain is
free to act without detriment to the interests of her ally, France, I am
empowered in the name of the Government of Great Britain to give the
following assurances and make the following assurances and make the
following reply to your letter:
(1) Subject to the above modifications, Great Britain is prepared to
recognise and support the independence of the Arabs in all the
regions within the limits demanded by the Sharif of Mecca.
(2) Great Britain will guarantee the Holy Places against all external
aggression and will recognise their inviolability.
(3) When the situation admits, Great Britain will give to the Arabs her
advice and will assist them to establish what may appear to be the
most suitable forms of government in those various territories.
5
See J. L. Brierly, The Law of Nations (1928), p. 165.
6
Division of Near Eastern Affairs, ‘Mandate for Palestine’ (1931) US State Department
(Report), p. 7. http://education.mei.edu/sites/d-efault/files/mei_library/pdf/6855.pdf.
. –
made promises of independence to Hussein. Agreements between States
and indigenous peoples were often termed treaties: for example, agreements
between the US government and Native American tribes.7 Kattan cites a
number of treaties signed in the nineteenth century between Britain and
Gulf sheiks.8 In his letter to Hussein, McMahon refers to ‘our existing
treaties with Arab chiefs’,9 although when the Ottoman Empire seized
control of the area, Britain began designating the subsequent agreements
as ‘agreements’ and not ‘treaties’.10 A 1937 treatise on international law
states categorically: ‘The law of nations is concerned only with States. Only
such states as are civilised, sovereign and independent are subject to that
law’,11 though adding, ‘quasi-sovereign States, when they possess the treaty-
making powers at all, may make treaties on only a limited number of
subjects and those of minor importance’.12 As late as 1961, McNair wrote
‘native chiefs and tribes are neither States nor international organizations
and thus possess no treaty-making capacity’.13 There were also doubts as to
how far Hussein represented the Arab world. Austen Chamberlain, British
secretary of state for India, is quoted as saying that Hussein was ‘a nonentity
without power to carry out his proposals’.14 The historian Friedman is of the
opinion that ‘the Correspondence had no contractual validity’,15 and the
historian Tauber comments, ‘a series of events occurred which forced
Husayn to open the Arab revolt before the two sides [Britain and
Hussein] had reached an official agreement’.16 Nevertheless, it is clear from
their subsequent behaviour that Britain and Hussein regarded the corres-
pondence as mutual commitments. British prime minister Lloyd George
described the correspondence as a ‘treaty’ in his conversation with the
French foreign minister at the Peace Conference in Paris in 1919.17
7
See, for example Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
8
Victor Kattan, From Coexistence to Conquest: International Law and the Origins of the
Arab-Israeli Conflict 1891–1949 (2009), p. 103.
9
The letter of 24 October 1915 quoted above.
10
Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits,
Judgment, 1. C. J. Reports 2001, p. 40, para. 44.
11
Marcellus Donald A. R. von Redlich, The Law of Nations (1937), p. 14.
12
Ibid., p. 113.
13
Lord McNair, The Law of Treaties (1961), p. 52.
14
Quoted from Friedman, The Question of Palestine, p. 73.
15
Ibid., pp. 67, 75.
16
Eliezer Tauber, The Arab Movements in World War I (1993), p. 77.
17
See The Council of Four: Minutes of Meetings, 20 March to 24 May 1919, Notes of a
Conference Held in the Prime Minister’s Flat at 23 Rue Nitot, Paris, on Thursday,
20 March 1919 at 3 p.m., Paris Peace Conf. 180.03401/101, IC-163A in Foreign
The twentieth century saw instances of States making binding agreements
with non-State entities aspiring to be States. Fenwick, an international
lawyer writing originally in 1924, notes, ‘there are cases in which political
communities struggling to attain a condition of separate statehood have
been recognized by international law as possessing a de facto as opposed to a
de jure status’;18 for example, Britain’s agreement with Ireland before it was
independent.19 Fenwick commented on this agreement that the Irish
Sin Fein ‘having at international law no de jure standing until the negoti-
ations preceding the treaty’.20 The Vienna Convention on Treaties recog-
nises that there can be agreements ‘between a state and other subject of
international law’.21
The fact that it was an exchange of letters and not one unitary
document would not affect its validity. It has always been diplomatic
practice to reach agreement by way of exchange of diplomatic notes,
which are formalised letters.22 International law has never demanded
that agreements be in a particular form.23 Modern international law has
codified this previous customary norm.24
Relations of the United States: The Paris Peace Conference 1919, Volume V (1946),
pp. 1–14.
18
Charles G. Fenwick, International Law (3rd ed. 1948), p. 128.
19
1921 Anglo-Irish Articles of Agreement, 26 LNTS 10.
20
Fenwick, International Law, p. 123.
21
1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, Article 3. See also
Anthony Aust, Modern Treaty Law and Practice (2nd ed. 2007), p. 18.
22
‘Exchange of Notes: Not infrequently agreements are concluded between States by means
of such exchange of notes.’ Melquiades J. Gamboa, A Dictionary of International Law and
Diplomacy (1973), p. 114.
23
ICJ Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) Preliminary,
Judgment of 26 May 1961, p. 31.
From the standpoint of the obligatory character of international engage-
ments, it is well known that such engagements may be taken in the form of
treaties, conventions, declarations, agreements, protocols, or exchanges of
notes. As is generally the case in international law, which places the
principal emphasis on the intentions of the parties, the law prescribes no
particular form, parties are free to choose what form they please provided
their intention clearly results from it.
24
‘“Treaty” means an international agreement concluded between States in written form
and governed by international law, whether embodied in a single instrument or in two or
more related instruments and whatever its particular designation.’ Vienna Convention on
the Law of Treaties 1969, Article 2(a).
. –
It could be argued that the correspondence was a unilateral undertak-
ing by Britain. International law recognises that a State can make a
binding unilateral undertaking to another State or States;25 it is, however,
doubtful that this was international law at the time. Such an undertaking
needs to be addressed to an individual State or to the international
community as a whole. In this case, it was addressed only to Sharif
Hussein and in secret.
It is unlikely that the McMahon–Hussein correspondence was
regarded, at the time, as a treaty; however, whether Hejaz was at the
time an independent State and whether the correspondence amounted to
a treaty is secondary to the sage international law rule that regards the
intention of the parties as the paramount criterion. It is clear that both
sides regarded the correspondence as a mutual exchange of
commitments. Kattan’s comment, that ‘it would seem that at the very
least, it [The correspondence] amounted to a series of mutually agreed
commitments’,26 is, I believe, the correct legal conclusion. The agree-
ment, like all agreements, was conditional on Hussein fulfilling his
promise to revolt against the Ottomans. It has been argued that he failed
to do so effectively.27 Kedourie described it as ‘a hasty and ill-organized
affair’.28 It nevertheless was an attempt to fulfil Hussein’s part of the
agreement. Moreover, Britain did not raise this as a possible reason not to
fulfil its commitments.
25
See ILC Guiding Principles applicable to unilateral declarations of States capable of
creating legal obligations, with commentaries thereto 2006, UN Doc. A/61/10.
26
Kattan, From Coexistence to Conquest, p. 98.
27
F.O. 371/2776/42233. Grey to Bertie, 22 November 1916. Dis.no. 779, quoted from
Friedman, The Question of Palestine, p. 79 n. 70.
28
Eli Kedourie, In the Anglo-Arab Labyrinth: The McMahon–Husayn Correspondence and
Its Interpretations 1914–1939 (1976), p. 143.
Ottomans’.29 Hogarth, the director of the Arab Bureau in Cairo, com-
mented that ‘neither to the Sharif nor to any other Arab did the British
ever explicitly guarantee or even promise any-thing beyond liberation
from the Turks’.30 Clayton, the director of British Military Intelligence in
Cairo, commented that the British intention was ‘merely eliminating
Turkish domination from Arabia’.31 ‘In November 1922, the Amir
Abdullah, in London to regulate the affairs of Transjordan, referred to
unification of the Hijaz, Iraq and Transjordan, only to be told that the
British government had never promised to work for ‘the establishment of
a great Arab kingdom.’32 Lawrence (of Arabia) writes, ‘I longed to tell
him [Abdullah son of Hussein] that the half-witted old man [Hussein]
had obtained from us no concrete or unqualified undertaking of any
sort’.33 The historian Friedman concluded that Arab independence was
at the time understood to be ‘liberation from their supposed adversaries,
not necessarily independence’.34 Bâli comments that Arab demands were
for a ‘united and independent greater Syria’ at the time ‘there was little to
no local support for according independence to smaller units based on
communal identities’.35
On 7 November 1918, the British and French governments issued a
joint Declaration. The essential passage was as follows:
The object aimed at by France and Great Britain in prosecuting in the East
the war let loose by German ambition is the complete and definite
emancipation of the peoples so long oppressed by the Turks, and the
establishment of National Governments and administrations deriving
their authority from the initiative and free choice of the indigenous
populations. In order to carry out these intentions France and Great
Britain are at one in encouraging and assisting the establishment of
indigenous Governments and administrations in Syria and
Mesopotamia, now liberated by the Allies, and in territories the liberation
29
Letter from McMahon to Hussein 31 October 1914.
30
Quoted from Friedman, The Question of Palestine, p. 67.
31
Ibid., p. 68.
32
Memo of Amir Abdullah of 13 November 1922 and FO letter of 11 January 1923, quoted
from Suleiman Mousa, ‘A Matter of Principle: King Hussein of The Hijaz and the Arabs
of Palestine’, International Journal of Middle East Studies, 9 (1978), 183–194, p. 191.
33
Lawrence, Seven Pillars of Wisdom, p. 212.
34
Friedman, The Question of Palestine, p. 67.
35
Asli Bâli, ‘Sykes–Picot and “Artificial” States, Symposium on the Many Lives and Legacies
of Sykes–Picot’, AJIL Unbound, 110 (2016), p. 118. www.cambridge.org/core/journals/
american-journal-of-international-law/ajil-unbound-by-symposium/many-lives-and-leg
acies-of-sykes-picot.
. –
of which they are engaged in securing, and in recognizing these as soon as
they are established. Far from wishing to impose on the populations of
these regions any particular institutions, they are only concerned to secure
by their support and by adequate assistance the regular working of
Governments and administrations freely chosen by the populations
themselves.36
36
Anglo French Declaration, 7 November 1918 (Iraq and Syria) Annex I, to the report
contained in Command Paper No. 5974.
37
President Woodrow Wilson’s Fourteen Points, 8 January 1918, Point No. XII. https://
avalon.law.yale.edu/20th_century/wilson14.asp.
38
Megan, Donaldson, ‘Textual Settlements: The Sykes–Picot Agreement and Secret Treaty-
Making, Symposium on the Many Lives and Legacies of Sykes–Picot’, AJIL Unbound, 110
(2016), p. 120, 127. www.cambridge.org/core/journals/american-journal-of-inter
national-law/ajil-unbound-by-symposium/many-lives-and-legacies-of-sykes-picot.
39
Article 18 of the Covenant of the League of Nations.
40
Donaldson, ‘Textual Settlements’, p. 130.
41
Article 103, the UN Charter. Aust comments that even this stipulation is ‘more honoured
in the breach than the observance’. Aust, Modern Treaty Law and Practice, p. 346.
2.2.4 Was Palestine Included in the McMahon–Hussein
Correspondence?
The British reservation in the McMahon–Hussein correspondence was
that the promise of independence given to Hussein did not include ‘the
two districts of Mersina and Alexandretta and portions of Syria lying to
the west of the districts of Damascus’, and only applied to areas ‘within
those frontiers wherein Great Britain is free to act without detriment to
the interests of her ally France’. In the correspondence, neither Hussein
nor McMahon refer explicitly to Palestine. This has led to continuing
disagreement as to whether the promise made to Hussein included
Palestine and what Hussein’s understanding was of the British intention.
The disagreement centres largely on what was the understanding at the
time of the phrase ‘portions of Syria lying to the west of the districts of
Damascus’ and areas where France had an interest.
42
British CAB 27/36, E.C. 2201 quoted from Friedman, The Question of Palestine, p. 88
n. 126.
43
Kattan, From Coexistence to Conquest, p. 106.
44
Victor Kattan, ‘Palestine and International Law: An Historical Overview’ in Victor
Kattan, ed. The Palestine Question in International Law (2008), p. xxvi.
45
Kattan, From Coexistence to Conquest, Map. No. 2. However, a Canadian cartographer
comments ‘this map’s reordering of the area was fleeting, and interpretations of it varied’.
Karen Culcasi, ‘Disordered Ordering: Mapping the Divisions of the Ottoman Empire’,
Cartographica: The International Journal for Geographic Information and
Geovisualization, 49, no. 1 (Spring 2014), pp. 2–17. No exact page numbers in online
version.
. –
by British Commander Hogarth to Sharif Husain stated that ‘the Entente
Powers are determined that the Arab race shall be given full opportunity
of once again forming a nation in the world. So far as Palestine is
concerned, we are determined that no people shall be subject to
another’.46 Hogarth’s message should perhaps be read in the context of
his contemporary statement that ‘what the British were asked was simply
to promote independence of the Arabs from their present over-Lord, the
Turk’.47 The issue was discussed by a joint Arab–British Committee in
1939.48 The Arab members of the committee held that since the reserva-
tion did not mention Palestine, the only area that had been excluded
from the limits of Arab independence were the coastal regions of north-
ern Syria. The Arab view was that if Britain had intended to exclude
Palestine, they would have referred to the Ottoman designation of
Palestine, the Sanjak (sub-province) of Jerusalem, which Britain did not
do.49 Thus, according to the Arab position, Palestine was included in the
pledge. Sir Michael McDonnel, who had served as chief justice in
Palestine and was present at the committee meetings as a supporter of
the Arab view, supported their position.50 As the 1937 Peel Report
commented, ‘the Arabs had always regarded Palestine as included in
Syria. Even if they had interpreted the [McMahon] Pledge as meaning
that Palestine would not be independent but reserved for French or
British or international control, they could not have foreseen that such
control might cover the establishment of a Jewish National Home’.51
Kattan notes that the Arabs continue to believe that Palestine was
included in the pledge; and in October 1947, the Arab States even
submitted a draft resolution to the UN General Assembly to request an
Advisory Opinion from the ICJ. The draft resolution asked whether the
pledges given by Great Britain to the Sharif of Mecca in 1915–1916 and
46
‘Report of a Committee on Correspondence between Sir Henry McMahon and the Sherif
of Mecca’, Parliamentary Papers – Cmd. 5974 (1939), p. 48.
47
F.O. 882/2, ‘Note on the “Arab Question” by Cdr. Hogarth, dated 16 April 1916’. Quoted
from Friedman, The Question of Palestine, p. 67 n. 10.
48
Report of a Commission Set up to Consider Certain Correspondence between Sir Henry
McMahon and the Sharif of Mecca in 1915 and 1916. Presented by the Secretary of State
for the Colonies to Parliament by Command of His Majesty, 16 March 1969, XIV
Parliamentary Papers (1938–1939), Cmd. 5974. Quoted from Kattan, From Coexistence
to Conquest, p. 107 n. 73.
49
Ibid., para. 14.
50
Quoted in Kattan, From Coexistence to Conquest, p. 107.
51
Peel Commission Report, Chapter II Article 23, commenting on the Hogarth message
concerning Palestine. https://unispal.un.org/pdfs/Cmd5479.pdf.
her subsequent declarations and assurances to the Arabs included
Palestine.52 The draft was not adopted.
2.2.6 Support for the Proposition That Palestine Was Not Included in
McMahon’s Pledge
McMahon wrote, in 1922, in a confidential letter to the Colonial Office:
‘It was as fully my intention to exclude Palestine as it was to exclude the
more Northern coastal tracts of Syria. I have no recollection of ever
having anything from the Sharif of Mecca, by letter or message, to make
me suppose that he did not understand Palestine to be excluded from
independent Arabia.’53 British Prime Minister Lloyd George was of the
opinion that ‘Palestine did not seem to give them [The Arabs] much
anxiety. For reasons which were obvious to them they realised that there
were genuine international interests in Palestine’.54 In 1918, Sir Gilbert
Clayton, the Head of British Intelligence in Cairo, wrote that Hussein ‘is
quite prepared to leave Palestine alone provided he can secure what he
wants in Syria’.55 The report of Faisal’s presentation at the Versailles
Peace Conference states that Faisal presented the Arab territorial claims
but, the report adds, ‘Palestine, for its universal character he left on one
side for the mutual consideration of all parties interested. With this
exception, he asked for the independence of all the Arabic areas enumer-
ated in his memorandum’.56 The official 1922 British White Paper on
Palestine affirmed:
It is not the case, as has been represented by the Arab Delegation that
during the war His Majesty’s Government gave an undertaking that an
independent national government should be at once established in
Palestine. This representation mainly rests upon a letter dated the 24th
October, 1915, from Sir Henry McMahon, then His Majesty’s High
Commissioner in Egypt, to the Sharif of Mecca, now King Hussein of
the Kingdom of the Hejaz. That letter is quoted as conveying the promise
52
See the questions formulated by Iraq, Egypt and Syria in UN Yearbook 1947–8,
pp. 237–241.
53
F.O. 371/7797/ (1922) E 2821/65, McMahon to Shuckburgh, 12 March 1922, encl. in
Shuckburgh to Forbes-Adam, 13 March, quoted from Isaiah Friedman, The Question of
Palestine, p. 84.
54
Lloyd George, The Truth about the Peace Treaties (1918), vol. 2, p. 1032.
55
Clayton in a letter to the Gertrude Bell 17 June 1918, Clayton Papers quoted from
Friedman, The Question of Palestine, p. 91 n. 154.
56
Papers Relating to the Foreign Relations of the United States, vol. III, p. 891.
. –
to the Sharif of Mecca to recognise and support the independence of the
Arabs within the territories proposed by him. But this promise was given
subject to a reservation made in the same letter, which excluded from its
scope, among other territories, the portions of Syria lying to the west of
the District of Damascus. This reservation has always been regarded by
His Majesty’s Government as covering the vilayet of Beirut and the
independent Sanjak of Jerusalem. The whole of Palestine west of the
Jordan was thus excluded from Sir. Henry McMahon’s pledge.57
57
British White Paper of June 1922, The Israel-Arab Reader: A Documentary History of the
Middle East Conflict, Walter Laqueur and Dan Schueftan, eds. (8th ed. 2016), p. 25.
58
Viscount Samuel, Memoirs (1945), p. 173.
59
Quoted from Friedman, The Question of Palestine, p. 88.
60
Culcasi, ‘Disordered Ordering’, pp. 2–17. Exact page numbers don’t appear in
online version.
61
Report of a Commission Set up to Consider Certain Correspondence between Sir Henry
McMahon and the Sharif of Mecca in 1915 and 1916. Presented by the Secretary of State
for the Colonies to Parliament by Command of His Majesty, 16 March 1969, XIV
Parliamentary Papers (1938–39), Cmd. 5974. Quoted from Kattan, Coexistence to
Conquest, p. 107 n. 73.
62
Ibid.
63
Ibid., n. 73.7, para. 13(b).
disposal, in agreement with France if necessary.’64 The British ‘reservation’
clause in the correspondence refers explicitly to ‘those regions lying within
those frontiers wherein Great Britain is free to act without detriment to the
interests of her ally, France’. During the negotiations of the Sykes–Picot
agreement France had strongly expressed its traditional interests in
Palestine. The Sykes–Picot Agreement promised an international regime for
Palestine, which presumably would include France and granted France a free
trade port in Haifa. It would seem to reinforce the fact that McMahon was
informing Hussein that Palestine was not being promised as a part of an Arab
Kingdom. The American-Palestinian historian Rashid Khalidi describes the
McMahon promise of independence to the Arabs as referring to ‘an ill-
defined area as part of an ambiguous correspondence’.65 The British repre-
sentative to the 1939 Conference agreed that the language of the reservation
‘was not so specific and unmistakable as it was thought to be’, but added, ‘on
proper construction of the Correspondence, Palestine was in fact excluded’.66
64
Charles D. Smith, ‘The Invention of a Tradition: The Question of the Arab Acceptance of
the Zionist Right to Palestine during World War I’, Journal of Palestine Studies, 22, no. 2
(Winter 1993), pp. 48–61, 52.
65
Rashid Khalidi, ‘International Law and Legitimacy and the Palestine Question’, Hastings
International & Comparative Law Review, 30, no. 2 (2007), pp. 173–180, 175.
66
British Cmd. 5974 (1939), pp. 10, 24, 46, quoted from Friedman, The Question of
Palestine, p. 82 n. 97.
Another random document with
no related content on Scribd:
The Project Gutenberg eBook of Au Hoggar
This ebook is for the use of anyone anywhere in the United
States and most other parts of the world at no cost and with
almost no restrictions whatsoever. You may copy it, give it away
or re-use it under the terms of the Project Gutenberg License
included with this ebook or online at www.gutenberg.org. If you
are not located in the United States, you will have to check the
laws of the country where you are located before using this
eBook.
Title: Au Hoggar
mission de 1922
Language: French
Au Hoggar
MISSION DE 1922
PARIS
SOCIÉTÉ D’ÉDITIONS
GÉOGRAPHIQUES, MARITIMES ET COLONIALES
ANCIENNE MAISON CHALLAMEL, FONDÉE EN 1839
17, rue Jacob (VIe)
1925
A
M. E.-F. GAUTIER
EN HOMMAGE
DE RESPECTUEUSE ADMIRATION
C. K.
INTRODUCTION
[1] De ce « côté sportif » des explorations, je crois que l’on peut dire
qu’il est passionnant à vivre, agréable à raconter, supportable à
écouter et odieux à lire. C’est pourquoi je n’en ai point écrit ici.
Conrad KILIAN
MISSION DE 1922 AU HOGGAR
ITINÉRAIRE GÉNÉRAL
(Agrandissement)
Hoggar (Arabe). = Ahaggar (Tamahak).
PREMIÈRE PARTIE
I
ÉTUDES GÉOLOGIQUES
*
* *
*
* *
*
* *
D’une part :
a) A mon passage à Tanezrouft, j’ai constaté qu’en ce point où
l’on fait traverser la Hamada de Tinghert par l’Igharghar, il y a bien
un oued, mais qu’il coule du Nord vers le Sud, du Nord de la daia
Tanezrouft à la daia Tanezrouft, au lieu de se diriger du Sud vers le
Nord ;
b) Il m’a semblé que la Hamada n’était franchie nulle part par
l’Igharghar. Des militaires qui avaient parcouru cette région m’ont
déclaré avoir eu la même impression. Je n’ai encore pu trouver
personne qui ait vu, autre part que sur la carte, l’Igharghar traverser
la Hamada ;
c) Dans la dépression qui suit le Bâten (versant à falaises) de la
Hamada au Sud, on rencontre en abondance Corbicula saharica P.
Fischer et Melania tuberculata Mâll., faune sub-actuelle qui semble
indiquer l’existence récente dans cette dépression d’une vaste
« daia » ou d’une série de « daia » dans laquelle ou dans lesquelles
les eaux venant du Sud se réunissaient.
Une partie de cette eau devait disparaître par évaporation, une
autre partie pouvait être absorbée par les graviers, grès friables et
autres formations crétacées perméables, s’enfoncer sous le plateau
crétacé suivant le pendage si régulier de ces terrains vers le Nord et
emprisonnées par les formations argileuses et marneuses
intercalées dans ce Crétacé, alimenter le Nord en eaux artésiennes
par une circulation sous pression en profondeur, dans le fond de la
vaste cuvette crétacée comme cela continue à se produire
actuellement.
Certaines « reculées » dans la Hamada de Tinghert, qui ont
d’ailleurs donné leur nom à la Hamada[9], semblent comme des
« manches » et des « culs-de-sac » d’absorption.
Et il convient de signaler également la présence d’entonnoirs
d’effondrements et d’absorptions dus aux formations de gypse dans
la Hamada, qui favorisent la disparition des eaux superficielles et
jouent un rôle important pour la compréhension de la circulation
souterraine de l’eau dans ces régions.
D’autre part :