Legal principles applicable to Arab and British arguments
Notwithstanding the Arab view of the McMahon-Hussein correspondence as constituting a “treaty,” it clearly was not a Treaty between states, as the Sherif in October 1915 was not the ruler of a sovereign state.137 But if one accepts the
Arab view that a treaty was formed, then it still becomes necessary to interpret the treaty’s meaning. Given the ambiguous language of the McMahon-Hussein correspondence, the international law of treaty interpretation provides a useful framework for assessing the validity of the Arab and British positions regarding whether McMahon’s and the British Government’s intent was relevant.
Article 31 of the Vienna Convention on the Law of Treaties provides, “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” Article 31 further states, “A special meaning shall be given to a term if it is established that the parties so intended.” 138
Article 32 of the Vienna Convention permits resort to “supplementary means of interpretation” to determine the meaning of a treaty, including the circumstances of the Treaty’s conclusion, to avoid a result which is “ambiguous or obscure” or “manifestly absurd or unreasonable.”139
The Vienna Convention is based on customary international law, requiring treaties to be interpreted “according to their reasonable, in contradistinction to their literal, sense.” In the event of ambiguity, “[i]f two meanings of a provision are admissible according to the text of a treaty, such meaning is to prevail as the party imposing the stipulation knew at the time to be the meaning preferred by the party accepting it,” and “if two meanings of a provision are admissible, that which is least to the advantage of the party for whose benefit the provision was intended in the treaty should be preferred.”140
Writing a few years prior to the adoption of the Vienna Convention, one commentator noted the difference between British and International law for interpreting legal documents such as treaties:
There are no technical rules in international law for the interpretation of treaties; its object can only be to give effect to the intention of the parties as fully and fairly as possible. But lawyers who are trained in the methods of interpretation applied by the English courts should bear in mind that English draftsmanship tends to be more detailed than continental, and it receives, and perhaps demands, more literal interpretation.141
In his advocacy on behalf of the Arab side to the Joint Arab-British Committee in 1939, Michael McDonnell, the former Chief Justice of Palestine, argued British legal precedents and British law required the McMahon-Hussein correspondence be interpreted by reference to what he described as the clear and unambiguous language of the correspondence, without regard to McMahon’s or the British Government’s intent.142 But customary international law and the Vienna Convention take a somewhat broader view, emphasizing both the ordinary meaning of the language as well as the object and purpose of the document, which may need to be interpreted in light of what the parties intended.
The Permanent Court of Arbitration, adjudicating a dispute between France and the Netherlands, made the following point regarding the role of intent in interpreting a treaty:
In so far as the text is not sufficiently clear, it is allowable to have recourse to the intention of the parties concerned. If, in this case, the intentions are clear and unanimous, they must prevail over every other possible interpretation. If, on the contrary, they diverge or are not clear, that meaning must be sought which, within the context [ddiis le cadre du texte], best gives either a reasonable solution of the controversy, or the impression which the offer of the party which took the initiative must reasonably and in good faith have made on the mind of the other party.143
The Arab side would argue, based on the above legal principles, and whether British or international law were applied, the phrase “lying to the west of the Districts of Damascus, Homs, Hama and Aleppo” was not ambiguous and should be interpreted literally to mean only Lebanon, but not Palestine was excluded from the pledge. But even if the phrase were deemed ambiguous, the Arab side would argue the ambiguity should be construed against the British drafters of the 24 October 1915 letter and resolved in favor of the Sherif.
The British, on the other hand, would argue the phrase was not ambiguous, because both they and the Sherif knew and intended that the sole purpose of the 24 October 1915 letter was to reassure the Sherif that the four Syrian towns would be included in the future Arab state. The entire correspondence, the British would argue, had nothing to do with Palestine.
Shuckburgh best described the McMahon-Hussein correspondence as “troublesome.”144 Perhaps the most honest assessment from the British side came from the Peel Commission, which found “[i]t was in the highest degree unfortunate that, in the exigencies of war, the British Government was unable to make their intention clear to the Sherif.”14’
The McMahon-Hussein correspondence continues to provoke controversy to this day, and continues to form the foundation of Arab legal arguments against the legitimacy of the Balfour Declaration and the Mandate. We will see in Chapters 3 and 5 how the Arabs and Jews litigated the correspondence before both the Shaw and Peel Commissions.146
Following the McMahon-Hussein correspondence, Britain and its allies concluded a series of agreements during and after World War I, setting the stage for British rule in Palestine for more than two decades. Key to those agreements was Britain’s 2 November 1917 statement in the Balfour Declaration that it viewed “with favour the establishment in Palestine of a national home for the Jewish people,” along with its corollary commitment in the same Declaration that “nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine.”147
The Balfour Declaration was later incorporated into the San Remo Resolutions, the Treaty of Sevres, and ultimately the Mandate for Palestine, vesting it with legal status, at least according to the Jewish side.
In later legal proceedings before the Shaw and Lofgren Commissions, and in testimony before the Peel Commission, the parties spent enormous amounts of time and effort arguing over the meaning of the Balfour Declaration and the Mandate for Palestine. The key Arab legal argument (among many others, as we shall see) was that both the Balfour Declaration and the ensuing Mandate for Palestine were null and void because they conflicted with Britain’s pre-existing pledge of Palestine to the Arabs and with various provisions of the Covenant of the League of Nations.
In the meantime, the British and French began meeting secretly during the ongoing McMahon-Hussein correspondence to strike a deal carving up the anticipated post-war Middle East between them. Those negotiations culminated in the Sykes-Picot Agreement of 1916.