Does Britain have de jure authority over the West Bank and Gaza?

Question

That is, did the British Mandate of Palestine legally end?

Britain was granted a "mandate" over Palestine by the League of Nations from 1923, "until such time as [it is] able to stand alone". British authority was recognized by the UN Security Council, including, explicitly, through April 1948, when it stated,

...the United Kingdom Government, so long as it remains the Mandatory Power, is responsible for the maintenance of peace and order in Palestine, and should continue to take all steps necessary to that end...

The UN Security Council recognized Israel in 1949, but explicitly denies Israeli sovereignty over the West Bank and Gaza. The UN position is that these are militarily occupied by Israel, but Israel is not sovereign, and that these territories will provide the approximate territory of a future state of Palestine.

So apparently neither Israel nor (still inchoate) Palestine are sovereign. Did the British authority ever legally end, and if so, how?

Note that all other League of Nations mandates were fully succeeded by UN member states or, as in the case of the Japanese South Pacific Mandate, explicitly revoked.

Answer 1

First of all, Palestine was never sovereign British territory. It was held by the UK under a League of Nations mandate, with the responsibility to prepare it for eventual independence.

UK occupation of the West Bank and Gaza did not end in an orderly fashion, but in the violence of the 1948 Arab-Israeli war. The UK unilaterally declared its mandate would end on 14 May 1948. While this was never formally recognised by a UN Security Council resolution, the UK's military withdrawal de facto ended its responsibility for Palestine.

Almost 70 years have passed, and successive UK governments (including the current one) have shown no desire whatsoever to reoccupy Palestine. The only reasonable conclusion is that the UK's mandate is null and void. It would be rather perverse (and unwelcome to all parties) to argue the UK has some kind of continuing authority to govern Palestine under a League of Nations mandate agreed in 1919.

Answer 2

After you updated your question, I think it can be boiled down to "Did the Palestinian mandate end?" The answer to that question is yes, it did. Albeit obviously not amicably. From Termination of the British Mandate for Palestine written in early 1948:

It was in reply to questions touching on the legal considerations outlined above, raised in the debate on the first reading, from both sides of the House of Commons, that the Attorney-General made the position of H.M. Government clear. There was no general rule of international law, he suggested, to prevent termination of the mandate by the United Kingdom, and insofar as on a narrower view the original mandate might be regarded as a kind of con- tractual undertaking, the impossibility of performing the object of that undertaking, as originaly contemplated, frustrated the agree- ment (ad impossibilia nemo tenetur).

In this the Attorney-General was of course directly in line with the report of the United Nations Special Commission on Palestine which in its comment, appended to the first recommendation that the mandate should be terminated, stated inter alia:

'In the nature of the case, the mandate implied only a temporary tutelage for Palestine. The terms of the mandate include provisions which have proved contradictory in their practical application.'

"ad impossibilia nemo tenetur" states that no one is required to perform the impossible. If governing Palestine was impossible for Britain, it had the right to stop trying. In addition to that, the United Nations Special Committee on Palestine supported the termination of the mandate:

It is recommended that

The Mandate for Palestine shall be terminated at the earliest practicable date.

It is recommended that

Independence shall be granted in Palestine at the earliest practicable date.

Note also that in 1948, the mandate system had already collapsed and all other remaining mandate territories had become United Nations Trust Territories (the sole exception was South West Africa, modern day Namibia, which survived as a mandate until 1966).

For your other question, whether Britain held sovereignty in Palestine or not. The answer is that they did not. See for example Some Legal Aspects of the Mandate System: Sovereignty: Nationality: Termination and Transfer where that question is discussed extensively.

Edit: I found the following written in an essay called Israel's Borders under International Law by Anthony D'Amato

Is the Palestine Mandate still in existence? I think it is. Although the Mandate was dated to expire in August 1948, an essential term, namely the creation of an "Arab state," was not fulfilled. Of course this was the fault of the neighboring Arab countries, but one still has to protect the beneficiaries of the trust, namely, the people living in the area. The Jewish people were protected by the creation of their state, but the Palestinian people were not protected. Therefore I would argue that the Mandate survives until its substantive terms are fulfilled. The most important substantive requirement still unmet is the creation of an Arab State (Palestine).

I first discarded it as hogwash because of the crappy layout and strange abstract ("I am not a Jew. I am not an Arab. In trying to assess my internal biases...") But then I googled his name and Anthony D'Amato is apparently a law professor, teaching international law and human rights. So if a law professor says it exists, perhaps it does! Then it is not unreasonable to think that Britain is still the Mandatory Power.

Answer 3

De-Jure / Legally

This question asks about the "de jure" and "legal" situation.

Whenever you ask a legal question, you have to specify the jurisdiction that applies. In this case, the only relevant jurisdictions seem to be one of

• International law
• UK law
• Israeli law
• Palestinian law

International Law

International law is not really law in the normal sense. As this answer to a different question explains, it is a set of somewhat nebulous conventions that most national governments mostly choose to follow. There is no supra-national law court that applies International law to nations or which prosecutes offending nations. The ICC prosecutes individuals, not nations.

The UN is not a world government, it relies on its members to enact national laws and it relies on its members to enforce those laws.

The ICJ can adjudicate on disputes between member states but, for example, the USA withdrew from compulsory jurisdiction in 1986 and only accepts ICJ verdicts that suit it. "The key principle is that the Court only has jurisdiction on the basis of consent. The court has no true compulsory jurisdiction."

It seems unlikely that Israel would want to dispute the termination of the mandate and ask the ICJ to rule that the UK was the legal civil power in all of mandatory Palestine. It seems unlikely that the UK would consent.

National Law

It seems unlikely that any court in the UK, Israel or the current Palestinian territories would proclaim that the UK was the current legal civil authority in what was formerly mandatory Palestine and is now Israel and the Palestinian territories. So far as I know, the question has not been put to a court - at least not to a court that is recognised by all the affected countries as having legal jurisdiction over the matter. You cannot know the legal situation for certain if a court with jurisdiction has not ruled on the matter.

The mandate

The mandate was an agreement between an organisation and one of its members. The member gave notice of termination of the agreement and the organisation, though very active since, in resolution 181 took note of the mandatory power's withdrawal and has notably not at any time in the last seventy years asserted that the agreement is still in effect.

My conclusion is that, if all the above is correct and that none of the involved parties contest termination, it makes little sense to ask whether the mandate legally ended.

Answer 4

I am not a lawyer, but I suggest that no-one has de jure authority over the West Bank and Gaza. As noted, an Arab state which should have been established by the UN resolution 181 was not, and Jordan became the de facto authority in the West bank and Egypt in Gaza. The Israeli war of independence ended with armistice agreements, which established de facto demarcation lines and which were intended to be replaced by permanent peace treaties, but these intentions were never realized. After the six day war Israel became the de facto authority in the West bank and in Gaza. Later Israel gave up de facto authority in Gaza and in certain parts of the West Bank. The bottom line is that there is no de jure authority. I am not aware of a generally accepted rule denying vacancy in de jure authority, and in the absence of such a rule it is obvious the Great Britain is not the de jure authority, whether it was such during the Mandate or was not.