David,

Re your Scobbie fixation: Scobbie says he didn't consider the Mandate in the main body of his article. He then goes on to deal with it in his comments, making a point apparently not considered by Levy, namely the expiry of the Mandate. I apologise. I didn’t realise that you had a reading disability and that all this would require so much explanation.

If you still think Scobbie was "dishonest" I suggest you take it up with him directly. I am sure he would be delighted by your elevated discourse.

On the subject of elevated discourse, it is no answer to my points to ignore them and then say "I couldn’t give a hoot if you reject my reasons", or to resort to childish ad hominems. You have not rebutted my points or Berman's on factors vitiating the impact and relevance of a now 90 year old treaty.

The best you appear to have come up with is that the Palestinians were not an indigenous people entitled to rights to self determination. That view is rejected by historians, lawyers, and the ICJ in 2004. Of course the 1922 Mandate mentioned the indigenous population. What do you think the reference to "non-Jewish communities" is ?

Your belief that the ICJ would support your argument is fascinating. What are the chances of that given that in 2004 they unanimously held the settlements to be illegal ?

You keep asking which legal experts reject the Art80/mandate point but don’t seem to realise that, by a process of deduction available to any 11 year old, the ICJ had to have discounted it to come to its 2004 opinion. Berman has said "at least 90% of international lawyers – including the International Court of Justice – firmly reject the position that the [Levy] report announces".

If you are saying that the ICJ was oblivious to the argument, that is preposterous. In any event, Berman has tackled it head on and you have not given a cogent response.

#To Ben DR

1. So are you now saying the rights conferred by the Mandate were extinguished when Britain handed back the Mandate to the UN in 1948?

Please answer - "Yes" or "No"

2. I have had my say on Berman's article and do not intend to repeat them.

However you might care to read what others have had to say about Berman's article.

http://blogs.timesofisrael.com/san-remo-in-shilo-the-settlements-and-legal-history/

http://myrightword.blogspot.co.il/2012/07/bermans-post-modernist-cultural.html

3. Which one of the "non-Jewish communities" mentioned in the Mandate was the "indigenous population"?

4. Please name the historians and lawyers who assert that "the Palestinians were an indigenous people entitled to rights of self determination" in 1922. Please quote their opinions to this effect and that part of the ICJ 2004 decision that you claim supports this conclusion.

5. The International Court has already addressed the article 80/Mandate argument directly and clearly in the SWA case as I have pointed out in several quotations to you. Do you dispute their veracity? Do I need to re-post them for you to re-read?

6. I ask you again - produce at least one other legal expert to support your claim that every legal expert has refuted the Article 80/Mandate argument. Berman simply does come into this category. Then perhaps we can continue this discussion.

David

Even if termination of the Mandate by the UK was insufficient (per Rostow's untested trust argument), other factors listed by Berman and rise of peremptory norms such as right of SD cast doubt on its continued application.

One of your links was to the Berman article itself (!?). The other is from a Mr Medad. He is not even a lawyer so Court will not prefer his arguments over those of a Prof of Int Law at a leading university. Plus Madad's hardly impartial - lives in the WB. Am however familiar with his views (he contributed to the EJIL debate with Scobbie). In the link you sent, he tries to deal with the rebus sic stantibus principle, but gets it wrong.

Re "non-Jewish communities"/"indigenous population": both the 1922 and 1931 British census confirm that there was an indigenous population made up of Muslims, Druze and Christians.

Re "Palestinians an indigenous people entitled to rights of self determination" in 1922." – Won't find much about the right in 1922 as concept only gained prominence later. Doesn’t mean no such rights existed then or now. Stone tried to argue otherwise. His views have been rejected – see again Saul and Dahdal. Also read about the "inter-temporal rule" here www.soas.ac.uk/lawpeacemideast/publications/file60534.pdf

The ICJ obviously considered that Pals had rights of SD - see end of par 122. Even dissenter Buergenthal [par 4] said "I accept that the Palestinian people have the right to self-determination and that it is entitled to be fully protected.".

The SWA case is authority for the right of SD (in fact it expressly said Art 80 preserved that right for indigenous populations [59]). It's distinguishable anyway as it didn’t deal with a rebus sic stantibus. Unlikely anything said by Crt on Art80 could be seen as undermining right of SD which it was seeking to uphold and no legal writer has ever said otherwise.

You say Berman "simply does come into [the] category" of persons refuting the Art80/mandate argument". Back that up Mr.

David,

You might also want to look at the paper I sent you in the link above by Prof Scobbie who argues that it is inconsistent to now lay claim to the whole of the Mandate territory when Isr never took this step in 1948 and where its own Supreme Court has said that the territory of the State of Israel does not coincide with all the territory under the former Mandate- see from top of [46].

www.soas.ac.uk/lawpeacemideast/publications/file60534.pdf

Even more compelling is that fact that to this day, Isr has never sought to annex the whole area.

So that is another paper refuting your Art80/Mandate point.

So far I have given you references to 2 legal academics who address this. You have referred me to blog by a WB settler with no legal qualifications

#To Ben DR - Your response 4 July 3:59:31

1. You state:

"Even if termination of the Mandate by the UK was insufficient (per Rostow's untested trust argument)...,"

Do you agree then that Scobbie has got it wrong when he claims the rights created under the Mandate ended in 1948?

"Yes" or "No"

2. You continue:

"..other factors listed by Berman and rise of peremptory norms such as right of SD cast doubt on its continued application."

Please detail

(a) the other factors listed by Berman

(b) the peremptory norms

(c) the dates when the matters in (a) and (b) arose after 1948.

(d) How those matters cast doubt on the article 80/Mandate argument

3. You continue:

" One of your links was to the Berman article itself (!?)."

You seem surprisingly mystified. Why?

I clearly stated: "However you might care to read what others have had to say about Berman's article."

So please now go and read what they say.

Some people (unlike you) have identified themselves including Medad, Mark Kaplan - Director at the Office for Israeli Constitutional Law, Justice Now and David Olesker - Director at Jerusalem Centre for Communication and Advocacy Training - and have criticised Berman's opinion.

Berman has not responded. His silence says a lot. Why don't you go on the link and stand up for Berman and answer all these criticisms?

4. You continue:

" In the link you sent, he (Medad) tries to deal with the rebus sic stantibus principle, but gets it wrong."

Please advise what he says and why you say he is wrong or alternatively respond to him directly and let me know when you have done it.

5. You state:

"Re "Palestinians an indigenous people entitled to rights of self determination" in 1922." – Won't find much about the right in 1922 as concept only gained prominence later."

When do you allege this concept gained prominence?

It certainly had not gained prominence by 1947 when the UN Partition Plan only spoke of a Jewish State and an Arab State.

So please back up your statement with a date.

#To Ben DR - Your response 4 July 6:58:29

Thanks for referring me to another article by the discredited Scobbie who to refresh everyone's memory claimed:

1. The Levy Report did not deal with the Mandate - when it did

2. The rights created under the Mandate expired with the termination of the Mandate in 1948 - when even you - very reluctantly appear to disagree with that opinion.

I went and had a look at the article and quite frankly stopped reading at page (viii) of the introduction when I read the following:

"But Palestinian  agreement  to  this  drastic  shrinkage  of 
their  patrimony reducing  the  territory  assigned  to  them  by  the Partition Plan by half  – leaving them with 22 percent of Mandate 
Palestine – only  served  to  deepen  their  sense  of  unfairness and outrage that in the aftermath of the 1967 war, Israel has sought to 
enlarge  the  78  percent  of  Palestine  it  had  already  acquired  by confiscating additional Palestinian territory from the little that was left them." 

22 per cent of Mandate Palestine comprised what is today called Israel, the West Bank and Gaza. The other 78% of Mandate Palestine comprised what is today called Jordan. Jordan became a sovereign independent exclusively Arab Palestinian state in 1946.

In 2013 Israel comprises 17% of Mandate Palestine (not 78%), Gaza and the West Bank comprise 5% of Mandate Palestine (not 22%),and Jordan comprises 78% of Mandate Palestine.

If Scobbie again gets his facts wrong - how can anything he argues based on those incorrect facts be given any credence?

Ben DR:

Is Israel 78% of Mandate Palestine and the West Bank 22% of Mandate Palestine - as Scobbie claims

OR

Is Israel 17% pf Mandate Palestine and the West Bank and Gaza 5% of Mandate Palestine - as I claim?

If there is no agreement on the area of land included in Mandate Palestine - how can anyone talk about resolving the 90 years conflict between Jews and Arabs to settle who is entitled to it?

Many - and I suspect you to be one of them - argue that the Palestinian Arabs are entitled to 100% of Mandate Palestine based on international law

I stand ready to be corrected as to your views.