ity of the country to absorb new immigrants. That was a very definite guiding principle." 45

The proposition that immigration must not exceed economic absorptive capacity, interpreted in a purely restrictive sense, would plainly not answer to the description of "a very definite guiding principle, since it would merely fix a point beyond which immigration must not go, without affording any positive guidance as to how many immigrants were in fact to be brought in. When Dr. Shiels said that the White Paper of 1922 laid down the very definite guiding principle that immigration must be effected "according to the economic capacity of the country to absorb new immigrants," the principle to which he was alluding was clearly that immigration was to be permitted up to, but not beyond, the point at which the country was economically capable of absorbing it. A similar inference is to be drawn from Dr. Shiels' remark, at a later stage of the proceedings,46 that the Jewish Agency

"had always accepted the provision laid down in 1922 that the number of immigrants was to be according to the economic capacity of the country to absorb them."

Dr. Shiels can have been in no doubt as to the nature of the principle which had, in fact, been accepted by the Jewish Agency and had in practice formed the basis of all its dealings with the Palestine Government on the subject of immigration. It is true that Dr. Shiels was stating the effect of the White Paper of 1922, and was not referring to any express provision of the Mandate, but reasons have already been given for the view that the 1922 White Paper is binding on His Majesty's Government in relation to the construction of the Mandate, on which it was designed to serve as an authoritative commentary. As late as January, 1936, the High Commissioner, in summarising the reply of the Secretary of State for the Colonies to a memorandum from Arab leaders, said:

"The guiding principle as regards the admission of immigrants is a policy of economic absorptive capacity, and His Majesty's Government contemplate no departure from that principle.

99 47

20. The economic absorptive capacity principle, as thus interpreted, was approved by the Permanent Mandates Commission, which in its Report to the Council on the work of its Seventeenth Session, stated that

"The Commission views with approval the Mandatory Power's intention of keeping Jewish immigration proportionate to the country's capacity of economic absorption, as clearly intimated in the White Paper of 1922."' 48

The Report was approved by the Council of the League,49 which must therefore be taken to have endorsed the views expressed by the Mandates Commission on the subject of immigration. Another passage from the same Report, but on a different subject, is quoted in the 1930 Statement of Policy,50 with the comment that "it is

45 XVII P.M.C., page 54.

46 XVII P.M.C., page 82.

47 Official Communique of the Palestine Government, January 30th, 1936.

48 XVII P.M.C., page 142.

49 League of Nations Official Journal, Nov. 1930, page 1292.

50 Cmd. 3692, paragraph 8, page 11.

a source of satisfaction to them [His Majesty's Government] that it has been rendered authoritative by the approval of the Council of the League of Nations." The Council's approval was given at the same time and in the same manner as it was given to that part of the same Report which dealt with immigration. The recent White Paper 5 refers to "resolutions of the Permanent Mandates Commission," but refrains from adding that they have been rendered authoritative by the approval of the Council of the League.

21. The principles governing immigration into Palestine were further discussed by the Permanent Mandates Commission at its 32nd Session (1937). The Chairman's remarks leave no doubt as to what the Commission meant to convey by its observations on the subject in its 1930 Report:

"The Chairman...recalled that in 1930 the Council, on the advice of the Mandates Commission, had accepted the principle put forward by the Mandatory Power itself-namely that Jewish immigration should be authorised to the extent allowed by the country's capacity of economic absorption." 52

The discussion on this occasion arose from the decision taken by His Majesty's Government to fix an arbitrary quota for Jewish immigration, pending a decision on the question of partition.53 The Commission made the following observations in its report to the Council:- 54

The Commission does not question that the Mandatory Power, responsible as it is for the maintenance of order in the territory, may on occasion find it advisable to take such a step, and is competent to do so, as an exceptional and provisional measure; it feels, however, bound to draw attention to this departure from the principle, sanctioned by the League Council, that immigration is to be proportionate to the country's economic absorptive capacity.

In September, 1937, a resolution taking note of this Report was adopted by the Council.55 In a later resolution on the question of partition, the Council took occasion to recall "the assurances given

by the Representative of the United Kingdom on the subject of immigration"-the allusion being to Mr. Eden's assurance that the imposition of the arbitrary quota was to be regarded as a "purely temporary measure designed to meet temporary and exceptional conditions. If, as the Commission said, it were a departure from a principle sanctioned by the Council on a former occasion, Mr. Eden's colleagues on the Council would, he was sure, appreciate the special circumstances in which that decision had been taken." 56 It is clear that both the Mandates Commission and the Council viewed with misgiving even the temporary substitution of an arbitrary quota for the principle of economic absorptive capacity. What is now announced is not a temporary departure from the principle but its total repudiation.

22. Article 6 of the Mandate, which requires the Administration of Palestine to facilitate Jewish immigration, requires it also to encourage close settlement by Jews on the land, special reference being

made to State lands and waste lands not required for public purposes. Just as the White Paper proposes to bring Jewish immigration to an end, so also it proposes to obstruct the acquisition of land for Jewish settlement by restrictions which, though vaguely described, are clearly intended to be sweeping. Any measures interfering with sales by Arabs as such, or with purchases by Jews as such, would, in so far as they affected inhabitants of Palestine, infringe the principle of non-discrimination implicit in Articles 2 and 15 of the Mandate. But even if in form discrimination is avoided, what is clearly intended is a drastic reduction of the area available for Jewish settlement. His Majesty's Government refer, in defence of their policy, to "the reports of several expert Commissions," but the Commissions which have visited Palestine of recent years were not primarily composed of agricultural experts qualified to express an authoritative opinion on the matters with which Part III of the White Paper is concerned. Much clearer evidence than any which has yet been produced would be required to show that the far-reaching restrictions which are evidently contemplated are genuinely required to ensure that the rights and position of the Arab rural population shall not be prejudiced, within the meaning of Article 6 of the Mandate. It is to be observed that the duty of ensuring that the rights and position of other sections of the population shall not be prejudiced is coupled in Article 6 with a positive obligation, not only to facilitate the immigration of Jews, but to encourage close settlement by Jews on the land. The White Paper contains nothing to suggest that His Majesty's Government propose to take any steps to carry out this obligation, or indeed, that they recognise its existence.

23. Attention was drawn in the preceding paragraph to the reference in Part III of the White Paper to "the reports of several expert Commissions" with regard to land settlement and agriculture. But there are other matters on which both the Royal Commission and the Woodhead Commission were qualified to speak with much greater authority, and if His Majesty's Government rely unreservedly upon their Reports in Part III of the White Paper, their views are clearly entitled to at least equal weight in relation to the matters discussed in Part I. The foregoing excerpts may, therefore, be apposite:

"At any given moment there must be either an Arab or a Jewish majority in Palestine, and the Government of an independent Palestine, freed from the Mandate, would have to be either an Arab or a Jewish Government." (Royal Commission Report, p. 362.)

"The worst possible form of settlement would be one which left both Jews and Arabs in any part of Palestine uncertain whether in a few years' time either of them may not be subjected against their will to the political dominance of the other." (Partition Commission Report, p. 103.)

"If the projected measure of self-government was to have any reality, if it meant any real increase of Arab power or influence in legislation and administration, then the Jews believed-and in our opinion the belief was justified-that such power or influence would be used against the interests of the Jewish National Home." (Royal Commission Report, pp. 359-360.)

24. The reports of the "expert Commissions" relied upon in Part III of the White Paper will be found, properly understood, to offer the plainest warnings against proposals of the nature outlined in Part I. The essence of these proposals is that, at the end of a transitional period, Palestine shall become an independent State, in which, by means of the artificial restriction and eventual stoppage of Jewish immigration, the Arabs are to be assured of a preponderance of at least two to one. During the transitional period, the majority status of the Arabs is to be reflected in a two to one representation among the heads of Departments-a clear indication of the principles on which the Constitution of the independent State may be expected to be framed. It is by these means that His Majesty's Government propose to carry out their obligation under the Mandate to create such political, administrative and economic conditions as will secure the establishment of the Jewish National Home.

25. In paragraph 4 of the White Paper His Majesty's Government state that "they would regard it as contrary to their obligations to the Arabs under the Mandate, as well as to the assurances which have been given to the Arab people in the past, that the Arab population of Palestine should be made the subjects of a Jewish State against their will." It is difficult to understand how His Majesty's Government can have persuaded themselves that it would not be contrary to their obligations to the Jews under the Mandate, and to the assurances given to the Jewish people in the past, that the Jewish population of Palestine should be made the subjects of an Arab State against their will. It is no answer to say that the State will not be an Arab State but a Palestinian State. It is not names that matter, but realities. The authority of the Royal Commission has already been quoted for the proposition that "at any given moment there must be either an Arab or a Jewish majority in Palestine, and the Government of an independent Palestine, freed from the Mandate, would have to be either an Arab or a Jewish Government." It can make little difference to the Jews whether the State into which they are forced is an Arab State so described or a "Palestinian" State with an Arab Government. "Forced" is the correct expression, for it has been made clear that the independent State is to be formed, and the Jews included in it, with or without Jewish consent.5 It is true that it is stated to be the desire of His Majesty's Government that the independent State "should be one in which Arabs and Jews share in government in such a way as to ensure that the essential interests of each community are

57

safeguarded." 58 There was some talk of safeguards in the Parliamentary Debate, but, pressed for more precise information, Mr. MacDonald could only state vaguely that "those are matters for consideration when the time arrives." 59 Here again it may be apposite to quote the Royal Commission:

"We are not questioning the sincerity or the humanity of the Mufti's intentions or those of his colleagues; but we cannot forget what recently happened, despite treaty provisions and explicit assurances, to the Assyrian minority in Iraq; nor can we forget that the hatred of the Arab politician for the National Home has never been concealed." 60

67 See House of ords, May 23, 1939, Official Report, Cols. 104-105.

58 Cmd. 6019, paragraph 10, p. 6.

House of Commons, May 22, 1939, Official Report, Col. 196 60 Cmd. 5479, Chapter V, par. 58, p. 141.

95149-44-32

25. But it is not only a question of security; it is a question of status. Mr. MacDonald, though unable to be more specific on the question of safeguards, declared that "the whole spirit of this arrangement. is that the interests of the minority and majority in Palestine shall be adequately secured." 61 The status of a minority in the nominal enjoyment of minority rights is not the status which was contemplated for the Jews when His Majesty's Government promised them to facilitate the establishment in Palestine of a National Home for the Jewish people, or when that promise was subsequently incorporated in the Mandate. Addressing the Permanent Mandates Commission as the Accredited British Representative in 1937, Lord Harlech 62 stated, with reference to the Jews, that "he agreed... that the fundamental question was that of status... From the Jewish point of view, status was all important." 63 In the White Paper of 1937 4 His Majesty's Government point out, as one of the advantages of the partition scheme, that "the Jews would at last cease to live a 'minority life,' and the primary objective of Zionism would thus be attained." It is now proposed to fulfil the British Government's "declaration of sympathy with Zionist aspirations" by imposing upon the Jews in Palestine precisely the status of which Zionism is designed to relieve them.

64

26. It is characteristic of the spirit in which the constitutional proposals are conceived that they tacitly brush aside the connection, repeatedly acknowledged by British statesmen in the past and expressly recognised in the preamble to the Mandate, between Palestine and the Jewish people as a whole. The symbol of that connection, the Jewish Agency, is studiously ignored. The "appropriate body" to be set up under paragraph 10 (6) of the White Paper for the purpose of reviewing the constitutional situation is to be representative of "the people of Palestine." The Jewish Agency is not mentioned and seems clearly intended to be excluded, notwithstanding that in the White Paper of May, 1930,65 the question of self-government was described by His Majesty's Government as "one which deeply concerns the Jewish Agency. As though to make it clear that the Arab people as a whole is henceforth to be brought into the affairs of Palestine, and the Jewish people as a whole kept out, the White Paper proceeds to announce that if, at the end of ten years, His Majesty's Government should desire to postpone the creation of the independent State, they will first consult with representatives of the people of Palestine, the Council of the League of Nations, and the neighbouring Arab States, and that if they should still think that postponement is unavoidable, the Arab States will be included among the parties to be consulted as to plans for the future. The Jewish Agency, with all that it stands for, recedes from the scene, and in its place are brought forward the Arab Kings. It was not in this spirit nor with these intentions that the British Government published the Balfour Declaration and accepted the Mandate.

London,

1.6.39.

61 House of Commons, May 22, 1939, Ccl. 1962.

62 Then Mr. Ormsby-Gore.

63 XXXII P. M. C. p. 180.

4 Cmd. 5513, para. 7.

65 Cmd. 3582, para. 7, page 9.