In December 2020, the historian and regular Mosaic contributor Martin Kramer asked whether those recently celebrating the 100th anniversary of the 1920 San Remo Conference were justified in seeing it as a cornerstone of Israeli sovereignty. In particular, he found that the historical case for San Remo’s importance was overstated, even as he sympathized with the celebrants’ impulse to strengthen Israel’s legitimacy. Below, we present an exchange between Eugene Kontorovich—another Mosaic contributor and a frequent commentator on international law as it applies to Israel—who writes to dispute Kramer’s argument, and a last word in response from Kramer himself. —The Editors

Eugene Kontorovich: The San Remo Treaty Sits at the Foundation of Israel’s Legitimacy in International Law

This spring, I was among those arguing that the centennial of the San Remo conference—where the League of Nations assigned the mandate for Palestine to Great Britain—should be celebrated as a milestone in Israel’s pre-history, and remembered alongside the more widely-known Balfour Declaration and the UN General Assembly’s stillborn 1947 partition proposal. Martin Kramer recently criticized this stance, contending that the conference did little to advance the Zionist project of establishing a sovereign state in the Land of Israel. As he mentions with particular disapproval my suggestion that a street in Jerusalem currently named in honor of the UN resolution should be redubbed to commemorate San Remo, I thought I’d respond. At stake is more than street signs and civic commemorations festivals. Such engagements with the past, along with the work of careful scholars like Kramer himself, together amount to the reconstruction of Zionism’s legal and political history.

Kramer’s disagreement centers on the fine points of historical emphasis. He does not claim that the League of Nations’ actions were unimportant. Rather, he claims that San Remo was a disappointment relative to the other events.

But first, let’s summarize these key events in order. On November 2, 1917, the British foreign secretary, Arthur Balfour, issued his famous declaration that “His Majesty’s government view with favor the establishment in Palestine of a national home for the Jewish people.” At that moment Palestine was still part of the Ottoman empire, although parts of it had been occupied by Britain, which would go on to conquer the rest in the remaining year of World War I. But only at the April 1920 San Remo conference would the victors in the war—by this time acting under the supervision of the newly created and broadly-based League of Nations—award the territories west of the Jordan River to the United Kingdom. The text of the corresponding “mandate” included phrases from the Balfour Declaration about establishing a Jewish national home there. Finally, in 1947, the United Nations General Assembly voted in favor of dividing parts of the mandatory territory into Arab and Jewish states. The Arabs rejected the suggestion, Israel declared independence, and the rest, as they say, is history.

In one sense, both San Remo and the Balfour Declaration were necessary antecedents to the creation of a Jewish state, which could not have proceeded without both British support and the League’s endorsement. San Remo, after all, gave London control of Palestine, without which the Balfour Declaration was meaningless. By this standard, the suggestion of UN General Assembly resolution 181 about modifying the mandate was not a necessary prequel to Israel’s creation. Had the UN kept out of the matter, Britain nonetheless would have soon relinquished the mandate, and the Jews of the Yishuv would have had no choice but to declare independence. Even with the UN’s nominal support for a Jewish state, the creators of the actual one had to fight for their survival in the face of a debilitating UN arms embargo that clearly favored the already-established and Western-supplied Arab armies. In the absence of Resolution 181, calling for partition of Mandatory Palestine into Jewish and Arab states, Israel would still have had to fight to be born.

Which brings us to another vantage point from which to evaluate the significance of these several events: legitimacy. What must be stressed from the outset is the folly of searching through history for an international stamp of approval for Israel’s creation. Countries do not require or receive permission for their establishment. They do so either by agreement with the prior sovereign or, more commonly, by success in a contest of arms. No one asks the U.S. or South Sudan what right they have to exist; nor for that matter is this a question for the Hashemite kingdom of Jordan, which was created by codicil in the mandate for Palestine.

To be sure, Abba Eban invoked the UN partition plan as Israel’s “birth certificate” while Arab armies poured in from all sides. But his rhetoric did not accomplish anything concrete. From the perspective of international relations, Israel’s legitimacy as a sovereign state rests on the same basis as all others: a government established its exclusive control over a territory and won recognition by other states. It is Israel’s successful defense of itself in the War of Independence, at a cost of 1 percent of its entire population, that is the key to its legitimacy, and Yom HaZikaron is the relevant commemoration.

In this sense, responding to attacks on Israel’s legitimacy by seeking special tokens of legal or diplomatic approval falls into the trap of the delegitimizers, by conceding that Israel is a state dependent on international sufferance. Moreover, if international institutions somehow birthed Israel, they might retain some tutelary powers. Certainly, Israel would not want to tie its legitimacy to the UN General Assembly, which 45 years ago voted that the very idea of a Jewish state is racist, or for that matter to the UK, which as Kramer shows was backtracking on San Remo even as the ink dried. In this sense, the League of Nations at least can do no further harm.

But it is from the legal perspective that San Remo’s significance most clearly dominates. As a matter of international law, neither the Balfour Declaration nor the UN General Assembly vote had any legal significance at all. This is because neither United Nations resolutions nor official statements of the British Foreign Office are recognized sources of international law. The United Kingdom is but one country. As for the General Assembly, its existence and powers stem from the UN Charter, which gives it zero lawmaking power, and certainly not the power to create states or draw borders.

The treaty creating the League of Nations gave the body such powers over territories where Ottoman or German imperial rule had ceased, and it exercised them repeatedly through the mandate system. The San Remo conference resulted in real changes in the international legal order throughout the Middle East, with the creation of a new geopolitical entities, such as Mandatory Palestine, along with other mandatory territories that would become Syria, Lebanon, and Iraq.

Here, Kramer seems to misunderstand the lasting legal significance of the mandate. It does not lie in any particular phrase of the mandate’s text, not even in its provisions regarding a “Jewish national home.” No provisions in a treaty, or in a declaration by a foreign government, can guarantee Israel’s existence as a Jewish national home. If, for example, all the Jews were to leave Israel, it would not be a Jewish state in any meaningful way, regardless of any statements in any international documents to the contrary. Indeed, the point of the language about Jewish rights in Palestine was to allow immigration and settlement, which had been greatly restricted by the Ottomans. As Kramer notes, the British quickly took a narrow view of these provisions. But the mandate was supposed to create the conditions for the establishment of a Jewish state, not to serve as the basis for its Jewishness once created.

But more fundamentally, the mandate no longer exists. Whatever expressions it uses have absolutely no legal bearing today, any more than do the Crown charters or royal grants establishing American colonies.

The continued relevance of the mandate today—and why it is worth remembering—lies in the borders it established. For the past several decades, the central diplomatic question for Israel has not been recognition of its existence, but rather of its borders—and its fear of finding itself with borders that make its survival exceedingly tenuous. The entire Palestinian issue is largely a debate about whether the 1949 armistice lines constitute Israel’s international borders. The mandate provides a clear and definitive basis for establishing Israel’s borders, that is, unlike the armistice lines, legally conclusive. The mandate was a distinct geopolitical unit, and its borders included all of Israel in its post-1948 form, the Gaza Strip, and the West Bank; indeed, the notion of the latter two areas as distinct entities simply did not exist at the time.

Under international law, when a new country is established, it automatically inherits the borders of the last top-level administrative unit of that territory. Thus, newly independent post-Soviet states have the precise borders of the preceding Soviet Socialist Republics. States that arose from League of Nations mandates inherit the borders of the mandatory entity, even if the result harms equitable claims of self-determination, as of the Kurds in Iraq. If New Hampshire were to secede from the United States tomorrow, its borders would be those of the present-day state.

Crucially, this has nothing to do with the wording or intent of the mandate itself, including what it says about the issues of civil and political rights, or immigration. Nor does Israel’s sovereign claim to the land between the river and the sea, as a matter of international law, rest on the “Jewish national home” language of either the Declaration or the mandate. Rather, Israel, a Jewish state, was the only state established in the territory of Mandatory Palestine, and thus inherits the borders of its predecessor entity. The phrase “Jewish national home” relates to the internal character of the state, and that is something that international agreements cannot guarantee. Lebanon, for example, was intended to be a primarily Christian Arab state. Demographic change has made the Christians a weak minority, but the external borders of Lebanon remain what they were under the French mandate.

Kramer dismisses this point as an “arcane argument.” In fact, it is the primary international rule for establishing the borders of countries around the world, and the first principle an international court or arbitrator reaches for. Moreover, the arguments against Israeli control of the West Bank are made primarily in international legal terms—occupation, illegal settlements, and the like—and must be refuted in these terms.

Kramer notes that San Remo did not give Jews superior political rights in Palestine, and unlike the Balfour Declaration, recognized Arab political rights. What this means is that Arabs would enjoy the rights of citizenship in areas ruled by a Jewish-majority state. Jews would not be able to rule over an Arab majority. But given that Israel was never inclined to do so, this hardly seems like a fatal omission.

Kramer also downplays San Remo by pointing out that its language on Jewish statehood, and even immigration, was vague enough to give the British room to implement the mandate in a way that would deny Jewish aspirations. And the British promptly did that in the 1922 White Paper, which greatly limited immigration. As a result of the British policy, two-thirds of those for whom Palestine was designated a “national home” were instead murdered in Europe, making a Jewish majority in the Holy Land much more tenuous.

But it is naïve to think that stronger language in the mandate would have constrained perfidious Albion. Britain’s policy was motivated by new and powerful interests in the Middle East. London took the leeway the mandate gave it, and went beyond it. If less leeway were granted, Zionist protests to British policy might have been even more fervent, but the policy would likely have been the same.

Thus, while we can learn much from Kramer’s account of the events at San Remo, and we should certainly join Kramer in lamenting the weaknesses of the mandate—and even more so study the lessons about the fickleness of powerful imperial benefactors—it is this particular conference that, more than any declaration by any country or international body, gave legal backing to the Jewish state’s claim to the Land of Israel.

Martin Kramer: No San Remo Required

This past August, the veteran Israeli politician Uzi Dayan, a member of the Knesset from the Likud party, proposed a law establishing San Remo Day as a new national holiday. Marking the anniversary of an April 1920 conference held in the northern Italian resort town of San Remo, the holiday would celebrate a seemingly miraculous—but largely forgotten—event in the annals of Zionism and the founding of the Jewish state. Almost three decades before the state’s establishment, at a time when fewer than 100,000 Jews resided in Palestine, the international community supposedly not only recognized the right of the Jewish people to a sovereign state but also recognized that right precisely in all of the territories, including the West Bank, that Israel controls today.

Dayan was hardly alone in his enthusiasm. As I wrote in Mosaic in December, other Zionist organizations, Israeli officials, and political activists had similarly rallied behind the effort to boost the San Remo conference—at which Britain and France agreed on the division of Middle Eastern territories conquered in World War I into League of Nations mandates—to a status exceeding that held by the 1917 Balfour Declaration, in which the British government pronounced itself in favor of “the establishment in Palestine of a national home for the Jewish people,” and the 1947 United Nations resolution recommending separate Arab and Jewish states in Palestine.

In this campaign, Israel’s past leaders, supporters, and historians (like myself) stand accused of negligence. According to Israel’s strategic-affairs minister, Orit Farkash-Hacohen,

Some of the responsibility for San Remo’s absence from the public discourse lies with us—Israel and friends of Israel around the world. We neglected to tell the story of this conference time and time again. . . . When we don’t tell the story and set the record straight, we cannot expect anyone else to do it on our behalf. If this is the case, we cannot be surprised when people rewrite history and distort it.

But if such a miracle indeed had occurred at San Remo, how is it that, for almost a century until yesterday, Israel’s leaders and friends seem to have altogether missed it? As I argued in my piece, that’s because they would have thought the notion preposterous.

So much by way of introduction. In what follows I’ll be commenting on the rebuttal of my argument offered by the legal scholar Eugene Kontorovich, one of Israel’s most effective legal advocates. Together with Avi Bell, he has put forward cogent and persuasive defenses of many Israeli policies wrongly deigned by critics to be illegal. But with all due respect, the significance he attributes to San Remo is a bridge too far.

To his credit, Kontorovich advances a narrower claim than most San Remo celebrants. Eschewing the question of whether the 1920 conference issued a license for a Jewish state—states aren’t born that way, he emphasizes, and in any case, irrespective of San Remo, Israel now exists and enjoys widespread recognition by other states—he also rightly underlines “the folly of searching through history for an international stamp of approval for Israel’s creation.”

This puts him in clear opposition to the likes of the late Jerusalem-based attorney Howard Grief, who in calling the San Remo resolution “the basic constitutional document of the state of Israel under international law” went so far as to suppose that a state could acquire its legitimacy decades before its birth, in a document that didn’t mention it, written by parties that didn’t even envision it.

For Kontorovich, by contrast, the “lasting legal significance” of San Remo lies elsewhere. The conference, he writes, gave rise to the British mandate for Palestine, and while Palestine’s borders weren’t set at San Remo, the mandate borders themselves were set a few years later. Therefore, Israel, as the only sovereign state to arise within that territory upon the 1948 dissolution of the mandate, is entitled to all of it by international law.

In my Mosaic article I cited this claim and pronounced myself agnostic as to its legal merits. But I also pointed out that Israel itself never advanced it. Why? That is the historical (not legal) question that lies at the heart of my remarks here. Why didn’t the pre-state Zionist movement, and then the state of Israel, regard the mandate as a title either to its sovereignty or to the eastern border of Palestine set by the British mandatory authority?

The part of this question that is about sovereignty can be answered simply enough: as I’ve already shown, in the view of pre-state Zionist leaders, the League of Nations mandate failed to recognize the Jewish right to a state; the first glint of international recognition would come only with the UN General Assembly resolution of 1947, mentioned above, calling for the founding of two separate states, Jewish and Arab, in Palestine. That’s why the UN resolution features prominently in Israel’s declaration of statehood of May 14, 1948. As for the part regarding borders, the answer is just as simple: in 1948-49, Israel avoided committing itself to any borders at all. That included both the partition-plan borders and the mandate borders.

In an earlier article at Mosaic, I demonstrated how David Ben-Gurion took great pains to assure that Israel didn’t commit itself to the partition-plan borders in the act of declaring independence. He cut a reference to those borders from the draft declaration, and argued successfully against legal experts in his own cabinet who thought that Israel couldn’t be declared without borders. Ben-Gurion preferred that Israel’s territory be carved out in war, and that its map be written by fighting Jews.

What isn’t often realized is that Israel didn’t commit itself to the mandate borders, either. The state of Israel, once established, chose not to regard itself as having inherited its sovereignty from the Palestine mandate. To do so would have meant assuming the customary treaty and contractual obligations of a successor state; instead, the state held that it was an entirely new entity, established by its own Provisional Government, filling territory the British had vacated without any transfer of authority. (Nor did Israel automatically confer its nationality on inhabitants who had held mandate nationality within its territory, lest it be obligated to accept the “right of return” of Arab refugees.)

Above all, Israel did not recognize any of the borders of the mandate. The independence war ended in 1949 with Israel committed solely to armistice demarcation lines with neighboring Arab states. Even where these followed the previous borders of the mandate, they were treated not as borders but as armistice lines, “not to be construed in any sense as a political or territorial boundary.” (The caveat appears in the armistice agreements with Egypt, Jordan, and Syria.) Any neighbor who wanted to finalize a border with Israel would have to make peace. In 1949, Israel’s foreign minister did describe the defunct mandate borders as “natural frontiers,” that is, a basis for negotiation, but not as borders.

After the Six-Day War of 1967, when Israel built settlements in the conquered territories of the Egyptian Sinai and the Syrian Golan Heights, both clearly outside the former territory of the Palestine mandate, Israel’s position remained that its security, not state succession, should form the basis of its final borders. In 1967, the UN Security Council confirmed Israel’s right to “secure and recognized borders,” without reference to the defunct borders of mandate Palestine, one of which, in particular, was and is regarded by Israel as inherently insecure: that between the mandates of Palestine and Syria. Obviously, were the principle of state succession to be accorded primacy, the Golan Heights would be forever Syrian, and their annexation by Israel would be illegal.

In short, the idea that Israel somehow “inherited” its borders from the mandate is entirely new, and was invented only recently to meet a newly perceived need: first to counter the claim that Jewish settlements in the West Bank since 1967 are “illegal under international law,” and second to buttress the case for applying Jewish sovereignty over parts (or all) of the West Bank. “Remember San Remo” has become the shorthand for this argument, even though the 1920 conference settled neither the matter of Jewish sovereignty nor the mandate borders.

In his reply to me, Kontorovich seems to think that he and like-minded others can persuade some part of world opinion that San Remo, dusted off, will strengthen Israel’s legal case. Much as I respect Kontorovich’s able efforts, however, legal arguments of this kind haven’t had much effect on world opinion.

Shurat HaDin is an organization that mounts sophisticated legal defenses of Israel. Last year, Nitsana Darshan-Leitner, its founder, rendered this verdict on the weakness of the San Remo argument:

Relying on San Remo is not the best strategy Israel should adopt, because people don’t really care about the legal argument. Maybe it’s good in court, but you can’t really bring it up in the public arena or diplomatic world.

Instead, she argued, “Israel has to base its rights to the Land of Israel on our historical, religious, and moral rights to be here, and not on signed documents.”

This is exactly what I was asserting when I wrote in Mosaic that the legal argument is “arcane”—a word that is defined by the dictionary as “understood by few.” Kontorovich reproaches me for it, but I will risk provoking him by going still farther. In my view, the San Remo argument, in linking Israel’s territorial claims to proceedings conducted by imperial powers in pursuit of their own self-aggrandizing interests, may well damage the Israeli case.

Let me explain: in an earlier essay for Mosaic I refuted the idea that the 1917 Balfour Declaration was a “colonial” document. Rather, it was an ostensibly disinterested statement of support for legitimate Jewish national aspirations, and an early form of public diplomacy. Not so the San Remo resolution, which finalized the postwar carve-up of the Middle East between the British and French empires, behind the flimsy façade of the League of Nations.

At San Remo, Palestine was pocketed for Britain by Lord Curzon, a former viceroy of India who was aptly described as “the symbol of [British] empire in its noontide splendor.” San Remo likewise evokes imperialism at noontide, and relying on it in 2021 is almost self-discrediting. Indeed, that’s my main disagreement with the San Remo celebrants. As Darshan-Leitner suggests, the most potent arguments against Israel’s “occupation” aren’t legal, they’re moral. Their whole thrust is to suggest that the “occupation” is “the only remaining colonial phenomenon in the world,” and that Israel itself is a relic of colonialism.

So just whom is San Remo supposed to persuade? On the one hand, I can’t imagine a pro-Israel Jewish student on a “woke” American campus embarrassing himself by citing San Remo in defense of Israeli sovereignty over settlements. Nor, on the other hand, can I imagine a European parliamentarian changing her mind about the supposedly illegal character of Jewish settlements after learning about the imperial machinations at San Remo. As for Israel’s Asian friends, from the United Arab Emirates to India, they might well wonder: if this is Israel’s main argument to dispel the stigma of “occupation,” then maybe its settlement policy really is the last gasp of colonialism.

Whom else, then? If the answer isn’t clear, then perhaps the founders of Israel were right to forget San Remo. Clearly, they didn’t believe that a miracle happened there; if they had, a San Remo Day would have been established long ago. Instead, they made their miracle happen in Tel Aviv on May 14, 1948, the day that marks the birth of Jewish sovereignty.

Ever since then, sovereign Israel has insisted on its right to maintain whatever borders it requires to rest secure. Given its rising standing in more and more capitals in the “international community,” that’s an argument that seems to be working just fine. No San Remo required.