London (Jun. 25)
(Jewish Telegraphic Agency)
What the duties of the Palestine government are in relation to the country as a whole and to the Jewish population of Palestine under the terms of the Mandate of the League of Nations is described in the report of the Jewish Agency Commission.
In the section entitled “The Function of the Government Under the Mandate,” the duties are defined as follows:
The Jews constitute not more than eighteen percent of the population of Palestine. They occupy a compara tively small fraction of its territory. The Moslems and Christians occupy a greater part of the land and constitute a preponderant majority of the people. A considerable part of the country has not been developed to the full extent. Its economic welfare, the health and comfort of the inhabitants require that large tracts of land consisting of swamps and marshes be drained to assure safe sanitary conditions; a highway system which is neccessary for providing effective transportation is still in its incipient stages. Little is known as to the subterranean water supply. The land is practically without forests and it is evident that in many other respects the absence of necessary public works constitutes an obstacle to the attainment of that degree of progress which is essential for the growth of the country.
To a substantial extent the Palestine Zionist Executive has employed its funds for carrying out projects with which, in fact, it is not equitably chargeable. They benefit the entire country and in a sense have constituted performance of what are state functions and obligations, as distinguished from those not pertaining to the administration of public affairs. In most countries the protection of public health, the promotion of education, the construction of highways and drainage of large areas are regarded as governmental functions. The expense incident to reasonable exercise of these functions should be borne not by a part but by all the people of the country by a just system of taxation and not merely by a portion of the people.
So far as public health is concerned, the establishment and maintenance of effective methods of sanitation is clearly not the business of a comparatively small fraction of the population. The prevention of disease and epidemies benefits all; the elimination of malaria, even from an economic standpoint, adds to the efficiency of every individual. The enforcement of vaccination, the prevention of trachoma, tuberculosis and other similar ailments safeguards every dweller in the land.
The ascertainment by a proper hydrographic survey of surface and subterranean water resources of the country, their protection from defilement and waste, and the planting and protection of forests benefit all because they tend to add to public health and eventually would add to the revenues of the country.
The advantages of education are incapable of exaggeration. Yet, thus far the government of Palestine has contributed comparatively little to the Jewish schools. It cannot be expected that the government should defray the entire cost of education, but as long as the reasonable standards established by it are observed by the schools, the expense of elementary education should be adequately subventioned by the government. This does not mean that the government should have any concern with the religious, secondary technical or special lines of education. We refer merely to the most fundamental phases. If any part of the people desires to supplement sanitation, hospitalization of education, the expense should be borne by those desiring the supplementation.
This brings us to the consideration of the powers and duties of the Palestine government as laid down in the Mandate of July 24, 1922, whereby His Majesty’s Government became the Mandatory for Palestine.
DUTIES OF MANDATORY
By article 1 of that historic document, the Mandatory was given full powers of legislation and administration, save as limited in the terms of the Mandate. By article 2, the Mandatory was made responsible for “placing the country under the administrative and economic conditions as will secure the establishment of the Jewish National Home,” laid down in the preamble to the Mandate which recites the terms of the Balfour Declaration. By the same article, the Mandatory Power was made responsible for the development of self-governing institutions and also for the safeguarding of the civil and religious rights of the inhabitants, irrespective of race and creed.
By article 4 the Jewish Agency was recognized “for the purpose of advising and cooperating with the administration of Palestine in such economic, social and other matters as affect the establishment of the Jewish National Home and the interest of the Jewish population in Palestine and subject always to the control of the administration, to assist and to take part in the development of the country.”
This merely speaks of cooperation and assistance, but does not impose upon the Jews the burdens which should be borne alike by all inhabitants of Palestine. Nor does it amount to assumption by the Jewish Agency, nor does it give it the right to assume functions pertaining to the Palestine government.
Article 11 of the Mandate provides: “The administration of Palestine shall take all necessary measures to safe-guard the interest of the community in connection with the development of the country and subject to any international obligations accepted by the Mandatoy. The administration shall have full power to provide for public ownership or control of any natural resources of the country or public works. services. utilities established or to be establshed therein. The administration of Palestine shall introduce a land system, appropriate to the needs of the country, having regard, among other things, to the desirability of promoting close settlement and intensive cultivation of the land.”
This provision recognizes. we submit, the obligations of the government to the extent we are claiming.
MANDATORY MUST CARRY OUT ITS OBLIGATIONS
By the second paragaraph of Article 11, the administration is permitted to arrange with the Agency for it to construct and operate upon fair and equitable terms any public works, services and utilities and develop any natural resources of the country. So far these matters have not been directly under-taken by the administration. That, however, does not imply that the cost of such construction and operation of the development is to be borne exclusively by the Agency. At all events, if fair and equitable terms with the Agency cannot be agreed upon, this does not absolve the government from constructing and operating such public works, services and utilities, and developing such natural resources as are necessary for the general welfare.
Again, in Article 18, it is declared: “Subject as aforesaid and to the other provisions of this Mandate. the Administration of Palestine may, on the advice of the Mandatory, impose such taxes and customs duties as it may consider necessary, and take such steps as it may think best to promote the development of the natural resources of the country and to safeguard the interests of the population.” Here again we find recognition of the principle we are seeking to elucidate, namely, that the Jewish Agency should not be expected to meet the obligations which rest upon the Palestine government.
Further support of this idea is afforded in the White Paper of June 1922, especially the letter of the Colonial Office to the Zionist Organization of June 3rd, 1922 with the accompanying enclosure, setting forth the British policy in Palestine, and the communication of the Zionist Organization to the Colonial Office of June 18, 1922, giving assurance that the activities of the Zionist Organization will be in conformity with the policy mentioned. Also the correspondence of the Colonial Office with the High Commissioner of Palestine, with respect to the proposed formation of an Arab Agency, presented to parliament by command of His Majesty in November, 1923, strongly fortifies this interpretation. Throughout these documents, stress is laid on the fact that the Palestine government was to be conducted as one affecting all the people and neither the Jewish Agency nor the contemplated Arab Agency was to undertake obligations and burdens which of right belong to the entire population represented by the Palestine government.
DEMAND EQUALIZATION OF TAXATION
In this connection we venture to reier to the subject of taxation and the registration of land titles. It is rather startling to learn that to a great extent there has been no adequate provision for the settlement and registration of titles. Recently, an ordinance has been promulgated dealing with the lands in villages. We are given to understand that as yet nothing has been done in this direction with respect to the titles on rural property. Until this is accomplished, there will necessarily arise confusion and litigation and the owners of agricultural land will be hampered in their efforts to borrow money secured by mortgages on their land because of the possible insecurity of the titles. Although these difficalties are recognized, the land survey undertaken is far from completion.
Such a survey necessarily constitutes the first step toward the adoption of a system looking to the quieting of titles and their registration. The expense of such a survey should, of course, be borne by the government, even though it amount to a substantial sum. The acquisition and disposition of land, which is a matter of public interest, will be unduly restricted so long as the existing conditions continue.
The laws and methods of taxation now in force are recognized to be archaic and inequitable. discriminating in favor of these lands not cultivated and which therefore are unproductive, and penalizing industry and enterprise. those who add to the productivity of the soil and the prosperity of the country. In most countries where land taxation prevails, it is upon the basis of the fair value of the land, whether cultivated or not, or whether the methods of husbandry are good or bad. the actual value of the land is, as it should be, the controlling factor. Any other policy obstructs the economic development of the country.
It is hoped, therefore, that a fiscal policy may soon be adopted. which will tend toward the equalization of taxation upon a reasonable basis.
ASK FOR PREFERENTIAL TARIFF
In recent years, the products of Palestinian soil have largely increased and there are gratifying possibilities of further increase. The vineyards and tobacco fields give promise of good financial returns. were it possible to export into the British Empire. wine and other liquors produced from grapes. as well as tobacco both in the raw and manufactured state, free from customs duties.
The home market, confined as it is to local consumption. can absorb only a small part of the production Foreign markets are therefore essential to the prolisable development of this industry. There is an encouraging demand for these products in Great Britain. Serious difficulty. however, is encountered in the laws regulating imports into the territory of the Mandatory government and subject the Palestinian producer and his infant industry to destructive competition. If these products were afforded the advantage of Imperial preference, there would be encouragement to those who are investing their capital and devoting their labor in this promising field at what may be called the Palestinian agricultural industry. It would add to the wealth of Palestine and thereby enable it to expand in many directions.
In view of the comparatively large imports, it is desirable that they be counterbalanced. so far as practicable, by the volume of exports. The power to grant Imperial preference has been questioned on the theory that the so-called “most favored nation” clauses contained in various treaties of the Imperial government stand in the way. It would seem. however, that these clauses are inapplicable to Palestine. They refer to “other” foreign states or nations or countries or powers, but Palestine does not properly come within any of these designations. It is not in reality “foreign.” The language of the clauses in question cannot properly be stretched to apply to Palestine, over which His Britannic Majesty’s government is Mandatory. The relations created by the Mandate are of the most intimate character. Although Palestine is not constituted a British territory and cannot be said to be a protectorate, yet its affairs are under the supervision of the British Colonial Office. While not strictly speaking, a British colony, in some aspects, it partakes of the character of a colonny. Comprehensive duties toward Palestine have been imposed upon the Mandatory by the Council of the League.
By article 2 of the Mandate, the Mandatory is made responsible for “placing the country under such political, administrative and economic conditions as will secure the establishment of the Jewish National Home.” By article 3. “The Mandatory shall so far as circumstances permit, encourage local autonomy.” By article 5, the Mandatory is responsible “for seeing that no part of the territory of Palestine is ceded or leased or in any way placed under the control of a foreign Power.” By article 9. the Mandatory is responsible “for seeing that the judicial system established in Palestine shall assure to foreigners, as well as to natives, a complete guarantee of their rights.” By article 10 “Pending the conclusion of special extradition agreements. the extradition treaties at present in force between foreign Powers and the Mandatory shall apply in Palestine.” By article 12, the Mandatory “is entrusted with the control of foreign relations of Palestine and the right to issue exequaturs to the consuls appointed by foreign Powers. It shall also be entitled to afford diplomatic and consular protection to the citizens of Palestine when outside its territorial limits.”
These, among other provisions, demonstrate that with the existence of so close a relationship between Palestine and the Mandatory, the idea that they are foreign to one another is inconceivable. In fact. it is implicitly excluded. Consequently. we submit in the most friendly spirit that the “most favored nations” clause would seem to be inapplicable.
A further significant fact bearing on this point is that Imperial preference has by Orders in Council been accorded to practically all other mandated territories assigned to Great Britain, with the sole exception of Iraq. Although there are differences between the three classes of mandates created by the Covenant of the League of Nations, it is believed, so far as the matter now under consideration is concerned, that these differences are not material.
The resolution adopted by the Permanent Mandates Commission at its session in July 1925 that the Council of the League “should recommend to the mandatory powers and also to all states, whether members or not of the League, which have concluded special treaties or convetions with the Mandatory power, to extend the benefits of such treaties or conventions to the mandated territories,” would indicate that the view of the Mandates Commission is that no distinction between the various types of mandated territories on the question of “well being and development” of those territories and that they all are to be treated on equality as virtually forming a part of the mandatory power to which they are attached.
WANT GUARDIAN–WARD RELATIONSHIP
But, regardless of these considerations, the relations between Palestine and the Mandatory power are of a special character which bring them outside of the purview of the “most favored nations” clause, as interpreted and applied in international law. Various precedents have been called to our attention, illustrative of this statement. Thus, France has applied the regime of tariff assimilation to Tunis, although the latter belongs to the non-assimilated group of French protectorates and its government is carried on under the direction of the French Foreign Office, and not, as in the case of Palestine, by the British Colonial Ofice.
The United States extended its preferential tarifis to Hawaii before its annexation. Portugal, likewise, granted such preference to Brazil, as did Cuba to the various Latin American states. There have likewise been instances of preferential practices in cases of territorial contiguity. A notable instance is that of a grant of duty reduction of 20 percent. by the United States to Cuba in 1903. Cuba was unquestionably a foreign state, yet, extraordinary circumstances which brought the United States and Cuba into relation with one another and the moral obligations which the United States recognized as existing on its part toward Cuba. were considered a justication for this procedure in face of “most favored nations” relations which the United States bore toward other nations.
The test of “extraordinary circumstances,” as shaping relations between two territories and as determining interpretation of treaty clauses under discussion, may be said to have full scope between the Mandatory Power and Palestine.
It is not likely that any other nation would view the allowance of Imperial preference by the Mandatory Power to Palestine as a grant of “favor,” according to the fair intendment of that word as employed in clauses in treaties to which reference has been made. Even though such preference may not be an absolute right, the conferring of it would be justified by the considerations similar to those obtaining between a guardian and a ward.