Newsgroup: it.politica.internazionale
Titolo: Il "muro" e la Corte

Posto qui una (buona) frazione della II parte di un saggio di
Anthony D'Amato (dalle non troppo rassicuranti credenziali: "Leighton
Professor of Law at Northwestern University School of Law. He was lead
counsel for Milan Kovacevic, the first person charged with the crime of
genocide by the International Criminal Tribunal for the Former Yugoslavia at
The Hague") sul problema legale della barriera. Mi sembra interessante
soprattutto la sua "soluzione" del problema della "proprietą" dei TO.
Shalom.
Namib.
-----------------
http://jurist.law.pitt.edu/forum/damato2.php
[...]
The area known as Palestine was part of the Ottoman Empire. In the aftermath
of the Peace Treaty of Versailles ending World War I, the Palestine area was
given over to Great Britain to administer as a Class A Mandate. The Preamble
to the Mandate provided for "the establishment in Palestine of a national
home for the Jewish people." This national home was to be without "prejudice
the civil and religious rights of existing non-Jewish communities in
Palestine." This farsighted provision meant that Jews from all over Europe
could move to Palestine and settle there, subject of course to their
purchase of the land upon which they would build their new homes. If they
could not afford to buy land, they could apply for land to be allotted from
public lands and waste lands not required for public purposes.
The Mandate instrument, just quoted, stems from the Class A mandate
provision of Article 22 of the Covenant of the League of Nations, which
requires the Mandatory (Great Britain in this case) to give "administrative
advice and assistance . . . until such time as they [the inhabitants of the
territory] are able to stand alone." The Palestine Mandate continued without
legal change through the end of the second World War.
In 1945, when the United Nations Charter was adopted, its Trusteeship
Council was unable to negotiate a new trusteeship agreement with Great
Britain over the Palestine mandate. Thus, in 1946 when the League of Nations
was formally dissolved, the old Palestine Mandate devolved upon the United
Nations General Assembly. Just as an ordinary trust survives the death or
abandonment of a trustee, the Mandate continued its legal existence. The
only way that the Palestine Mandate could be terminated would be for its
population to be adjudged by the International Court of Justice to be able
to "stand alone" within the meaning of Article 22 of the Covenant of the
League of Nations.
But the ICJ has never made such a ruling, and under the facts, it could not
have done so. The inhabitants of Palestine were sharply divided along
religious lines. In consequences, the Mandate still exists and continues to
exert its legal power over the territory of Palestine-a territory that of
course includes the State of Israel, the West Bank, and the Gaza Strip.
Many people who are unfamiliar with the trust concept think that the
Palestine Mandate, if it hadn't ended with the dissolution of the League of
Nations, surely ended when Great Britain in February 1947 withdrew its
administration of the Mandate and referred the entire question to the United
Nations. But a trust (or mandate) is a very special situation in the law: it
continues its existence as a legal entity even if the grantor of the trust
and the trustee and the beneficiaries are all dead. Let us take each of
these three actors in turn.
(1) The grantor sets up the trust; from then on, his presence is irrelevant
to the administration of the trust (unless the trust instrument itself
provides to the contrary). In the case of Palestine, the grantor was the
Ottoman Empire that relinquished its sovereignty over the Palestine area in
the Versailles Peace Treaty. It agreed to transfer this sovereignty to the
League of Nations which thereupon resided the sovereignty in a Mandate for
Palestine.
(2) There are many cases in which trustees voluntarily or involuntarily
relinquish administration of a trust; when that happens, the court having
jurisdiction over the trust simply appoints a new trustee. When Great
Britain withdrew from the Mandate in 1947 (to be effective in 1949), the
Mandate simply devolved as a matter of law upon the United Nations and its
two relevant specialized organs, namely, the General Assembly and the
International Court of Justice. No new Mandatory was ever appointed.
(3) The death of beneficiaries does not terminate a trust; the trust
property either passes to the heirs or devisees of the beneficiaries, or in
the case of some trusts (for example, a trust establishing a public park for
the use and enjoyment of the people of a community) continues indefinitely.
A reader might concede the foregoing and yet argue that the Palestine
Mandate came to an end when the United Nations General Assembly passed the
Partition Resolution of November 29, 1947. This resolution, if implemented,
would have amounted to a legal resolution of the "stand alone" requirement
of the Covenant of the League of Nations. It divided Palestine into a Jewish
State and an Arab State, and provided that Jerusalem become an international
city. It also set out exact boundaries for each of these three major
allocations. This was enough, in principle, to assure that all the
inhabitants, as citizens of their respective states, could "stand alone"
within the meaning of Article 22.
However, as everyone knows, the resolution was only one-third implemented:
only the State of Israel was established in 1948. The ensuing armed
hostilities and the great shifts in territory and in displaced persons made
it clear that the Mandate was not in fact terminated. Consider the analogous
case of a trust where a trustee allocates the trust property among a group
of beneficiaries. Immediately the beneficiaries dispute the allocation and
start fighting. As a logical matter it would be possible to conclude that
the trustee was right and the beneficiaries were wrong-that their fighting
made no difference. But as a matter of the equitable law of trusts, a court
would more likely conclude that the trustee made a mistake since his
allocation was in fact so badly received by the people who really count (the
beneficiaries). A court might thereupon replace the trustee with one who is
more sympathetic with the aggregate wishes of the beneficiaries, or take it
upon itself to supervise (through the appointment of a magistrate) a new
allocation.
The General Assembly's allocation in 1947 was denounced by Arab states
(purportedly speaking on behalf of the politically silent Palestinian
people) as overly generous to Israel. In the present hearings before the
ICJ, those same Arab states would clearly welcome a return to the 1947
Partition Plan, inasmuch as they even accept the "green line" of 1949 which
is less generous to Palestine than the Partition boundaries. The current
Arab position ratifies my argument that, despite Israel's acceptance of the
Partition boundaries of 1947, the Arab world's rejection of those boundaries
at that time estops it now to contend that the 1947 demarcation should be
given legal effect.
Of course we must not lose sight of the fact that the people of Palestine
have been victimized by these political machinations and by Yassir Arafat's
opportunistic lust for power. Many Israelis have also been victimized by the
lust for power of their own leaders. The Mandate for Palestine focuses our
attention upon the inhabitants of the territory and not their political
leaders. The people of the territory are the true legal beneficiaries, and
all external events that have been taken in their name does not detract from
their legal standing as wards of the world community. They are legally
designated wards under the terms of a Mandate established by the League of
Nations and continued in force by the United Nations. Their interests are
paramount. This is another reason why I believe that the ICJ is being led
astray by the political statements and oral arguments of self-interested
states.
If the ICJ wants to steer a legal course through the rocks and shoals of the
written statements and oral arguments of the governments of the world, what
exactly should it do? In my opinion, it must begin by looking at the entire
question from the internal perspective of the Mandate. It must resist all
the governments who urge it to look at the Mandate from an external
perspective, namely, as an instrument that was part of the legal history of
Palestine but has little if any present vitality. Instead, the Court should
view as the beneficiaries of its advisory opinion the inhabitants of
Palestine, including Jews, Arabs, and Christian minorities. They are the
ones to whom the entire complex scheme was intended to benefit-from the
Balfour Declaration of 1917, through World War I, through the emigration of
Jews to Palestine between the wars, to the Partition Plan, and through
numerous peace conferences and two intifadas. They, and not the states
submitting written statements and oral arguments, are the true parties in
interest. The real question is not the legal consequences of the
construction of the wall, but rather the legally protected interests of all
the Jews, Arabs, and Christians affected by the construction of the wall.
The next and final step, which is subtle and difficult and which I am
unequipped to state in any detail, is to address these legally protected
interests. The Court must figure out where the parties would be today within
the aegis of the governing Mandate and taking into account the changed
relationships since 1948 among the beneficiaries. In other words, the legal
standard should be: what would a Court today, in its proper role as
supervisor of the Mandate, regard as a just demarcation line of the wall
being built by Israel. The general answer is: the demarcation line must be
reasonable in light of the interests of the inhabitants.
A Mandate, like a trust, is a dynamic instrument; it "does equity over time"
(as perhaps only those who understand the rise and development of equity
courts as opposed to law courts in England can fully appreciate). There is
no doubt that Israel can build a barrier on its own territory, as Ireland's
written submission to the ICJ makes abundantly clear. But the mandated
territory is neither Israel's "own" territory nor Palestine's "own"
territory. A "reasonable" path for the wall is that which maximizes the
interests of all the inhabitants. This maximization is not quantitative
only; it is not to be measured on a per capita basis (unlike "one man, one
vote"!), but rather on a "values" basis. Thus, a portion of the wall that
divides an Arab town, or separates an Arab farmer's house from his own farm,
is extremely costly from an equitable point of view. The wall becomes less
costly the closer it approaches the green line. But flexibility has to be
given to the need for a continuous wall; a discontinuous barrier is an
oxymoron. This is a general problem in cost-effective boundary-drawing.
There are many lessons in such expertise that one can derive from the League
of Nations' redrawing of the boundaries of the Ottoman Empire after the
first World War.
Thus, as I see it, the forthcoming advisory opinion could be placed on its
firmest legal footing if the Court were to decide provisionally that the
interests of the inhabitants of Palestine under the Mandate are paramount,
and to appoint various international jurists and experts to consider each
segment of the wall in light of that paramount interest. Their decisions-to
dismantle a segment, remove it further toward the green line, or leave it in
place-woud ideally become incorporated into the final advisory judgment of
the ICJ to be forwarded to the United Nations.
March 2, 2004

 The Hague") sul problema legale della barriera. 
IMHO un punto di vista estremamente interessate, grazie.
Ciao
Ale
P.S. Perche' *...non troppo rassicuranti credenziali...*? Sono ottime 
credenziali, il fatto che abbia difeso un criminale non e' un demerito!

 credenziali, il fatto che abbia difeso un criminale non e' un demerito!
In sé, no di certo: chi è processato per un crimine è innocente fino a prova
contraria, e *quindi* tutti hanno il diritto di avere un difensore. Tuttavia
alcuni difensori (ma ignoro se sia il caso di D'Amato: suppongo di no,
perché mi sembra una persona intelligente) si "specializzano" su determinati
"tipi" di imputati (vedi Taormina), sollevando quindi qualche sospetto
(spesso non comprovabile, è vero...). Di qui i miei dubbi. Shalom.
Namib

 (spesso non comprovabile, è vero...). Di qui i miei dubbi. Shalom.
Ok, capisco, ho gli stessi dubbi su Jacques Vergès.
Ciao
Ale
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