36 No. 75 JUSTICE 2. In place of Ottoman sovereignty – the creation of a Mandate The Covenant of the League of Nations, signed on 28 June 1919, provided for the legal regimes applicable to those “colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them,” stating that “[c]ertain communities formerly belonging to the Turkish empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone.”149 The mandate system was created to provide certain states with the authority to govern, on behalf of the League of Nations, territories ceded by Germany and the Ottoman Empire during the First World War.150 The “underlying policy and principles” of the Mandate system as a “new legal institution” were considered briefly by Sir Arnold McNair in a separate opinion appended to the International Court of Justice’s Advisory Opinion on the International Status of South-West Africa.151 With respect to sovereignty, Judge McNair opined that “the doctrine of sovereignty has no application to this new system. Sovereignty over a Mandated Territory is in abeyance; if and when the inhabitants of the Territory obtain recognition as an independent State… sovereignty will revive and vest in the new State.”152 With regard to Palestine, the Principal Allied Powers, meeting in San Remo, Italy in April 1920 (the San Remo Conference), passed a resolution “to entrust, by application of the provisions of Article 22 [of the Covenant of the League of Nations], the administration of Palestine, within such boundaries as may be determined by the Principal Allied Powers, to a mandatory, to be selected by the said Powers.”153 Importantly, the resolution stated that “[t]he mandatory will be responsible for putting into effect the declaration originally made on the 8th [sic] November, 1917, by the British Government, and adopted by other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine…” In doing so, the Principal Allied Powers gave legal effect to the declaration made by the British Government on 2 November 1917 (commonly known as the ‘Balfour Declaration’).154 As such, the Mandatory power was legally obligated to fulfil the Balfour Declaration’s provisions – which were already endorsed by a number of states (including the United States of America and France) – as part of the Mandate itself. 149. League of Nations Covenant art. 22. 150. RUTH GORDON, Mandates, MPEPIL (Feb. 2013), https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/ law-9780199231690-e1066. 151. International Status of South-West Africa, Advisory Opinion, 1950 I.C.J 128, 150 (Jul. 11) (separate opinion by Sir McNair A.) (hereinafter South-West Africa Advisory Opinion). 152. Id. 153. San Remo Res. (April 25, 1920), https://www.un.org/unispal/document/auto-insert-207297/. 154. Id.; Letter from Arthur James Balfour, Secretary of State for Foreign Affairs, to Lord Rothschild, a leader of British Jewish Community (Nov. 2, 1917) (on file with British Library). The Balfour Declaration stated that “His Majesty’s Government [of the United Kingdom of Great Britain and Northern Ireland] view with favour the establishment in Palestine of a national home for the Jewish people, and will use their best endeavours to facilitate the achievement of this object, it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country”. The text of the Balfour Declaration had been submitted to and approved by President Wilson before publication, and on 14 February and 9 May, 1918, the French and Italian governments publicly endorsed the Declaration. see GOVERNMENT OF PALESTINE, A SURVEY OF PALESTINE, 1945-6, 1, at 1, https://www.bjpa.org/content/ upload/bjpa/a_su/A%20SURVEY%20OF%20PALESTINE%20DEC%201945-JAN%201946%20VOL%20I.pdf.
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