JERUSALEM, LEGAL ASPECTS

Introduction

At least in three respects Jerusalem differs from most other places: the city is holy to adherents of three religions, it is the subject of conflicting national claims by two peoples, and its population is heterogeneous to a considerable degree. These characteristics require some elaboration.

In the city one finds Holy Places of Christianity, since according to Christian tradition Jesus lived and was active in various locations in Jerusalem. Under the Islamic tradition, the al-Aksa Mosque and the Dome of the Rock as well as the Temple Mount on which they are situated are Holy Places, due to Muhammad's nocturnal visit, and for the Jewish people the whole city is holy, in particular the Temple Mount, because of the divine presence (the Shekhinah).

It has been argued that some of the events which are associated by the various religions with Jerusalem could not, from a historical point of view, have actually occurred. However, religious faith deserves respect and historical accuracy is not relevant. Religious belief in the sanctity of certain sites in Jerusalem has been exploited by various individuals, states, and institutions in order to achieve political goals.

As for the national aspect, according to Israeli law united Jerusalem is the capital of the State of Israel, but the Palestinians also have claims on the city, at least on the eastern part thereof, and seek to make it their capital.

Turning to the heterogeneous nature of the population, it is sufficient to stroll through the streets of the city to realize that it indeed consists of a mosaic of many and various communities. Thus, for example, adherents of some 40 different religions or ethnic communities live in Jerusalem.

These features may explain why there are so many different opinions concerning the legal status of the city, and why it is such a thorny problem in the peace process.

Opinions on the Legal Status of Jerusalem

Many statesmen as well as experts in international law have expressed their opinion on the status of Jerusalem.¹ In the framework of this article only the most representative ones can be reviewed, and the opinions will be stated without analyzing the controversies they have engendered. As the western parts of the city have not undergone a considerable change since 1949, opinions on their status can be analyzed without a temporal division. However, the eastern sectors changed hands in 1967, and therefore it may be useful to divide the discussion accordingly.

With regard to west Jerusalem, there are four basic opinions. According to the first, mainly developed by Sir Elihu Lauterpacht, Israel lawfully acquired sovereignty in 1948. When Britain left the area, a vacuum of sovereignty ensued. This vacuum could validly be filled only by a lawful action. Since Israel acquired control of west Jerusalem in 1948 by a lawful act of self-defense, she was entitled to fill that vacuum and thus became the lawful sovereign.²

Prince Hassan bin Talal of Jordan has expressed the opinion that sovereignty over Jerusalem is suspended until a comprehensive settlement is agreed upon.³

According to Henry Cattan, the Palestinian Arab people has had and still has "legal sovereignty" over the whole of Palestine including Jerusalem since the mandatory period.⁴

Others maintain that the status of Jerusalem is subject to the un General Assembly resolution of 1947 which recommended the establishment of a corpus separatum under a special international regime and administered by the United Nations.⁵

Most foreign states have not adopted a clear-cut stand on the status of west Jerusalem.⁶ Although there are differences among various states, one can discern certain similarities with regard to the basic questions. Apparently foreign states were not prepared to recognize the legality of Jordanian or Israeli rule over the respective zones of the city under their control. Thus, for example, the foreign consuls stationed in the city refused and still refuse (in 2005) to apply to Jordan (in the past) or Israel (as the case may be) for the granting of exequatur, i.e., permission to carry out their functions in the city. The refusal to recognize Israeli rule over the western sector was apparent, for example, in the 1952 case of the Heirs of Shababo v. Roger Heilen, the Consulate General of Belgium and the Consul General of Belgium in Jerusalem: the driver of the Belgian Consulate had been involved in a fatal road accident that caused the death of Mr. Shababo. The family members of the deceased sued the driver, the Consulate and the Consul General, and claimed damages. The incident was the subject of several judgments of the Jerusalem District Court.⁷ Of particular interest for the present discussion is the first deliberation, where the driver and his principals denied the jurisdiction of the Israeli courts over the accident since it had taken place in Jerusalem. That argument was dismissed by the court.

It seems, however, that despite this non-recognition of Israeli sovereignty, most states have nevertheless accepted the de facto applicability of Israeli law,⁸ and none has so far demanded that the laws of occupation including the 1949 Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War be applied to west Jerusalem.⁹

East Jerusalem during the period 1949–67 was under Jordanian rule. According to Sir Elihu Lauterpacht, during that time the area was under a vacuum of sovereignty: Britain had abandoned sovereignty, but Jordan could not fill this gap because it had occupied east Jerusalem by an illegal act of aggression.¹⁰

Under Henry Cattan's theory – similar to the parallel one concerning west Jerusalem – the Palestinian Arab people has had and still has title to "legal sovereignty" over the whole of Palestine, including east and west Jerusalem.¹¹

A third opinion, represented by Yoram Dinstein, recognized Jordanian sovereignty over east Jerusalem, derived from the exercise of the right of self-determination by the inhabitants, i.e., the resolution adopted by the notables in Jericho in 1949, requesting the annexation of the West Bank to Jordan.¹²

Lastly, with regard to east Jerusalem, like the western parts, certain writers claim that the corpus separatum solution is still valid.¹³

How were these opinions influenced by the changes that occurred in 1967? According to Sir Elihu Lauterpacht, the vacuum of sovereignty existed until Israel occupied east Jerusalem by a lawful act of self-defense and thus was entitled to fill the gap.¹⁴ A similar conclusion was reached by other writers who based Israel's sovereignty on the idea that Israel has the strongest relative title to the area in the absence of a lawful "sovereign reversioner" due to Jordan's lack of a valid claim to sovereignty.¹⁵

The opinion held by Henry Cattan under which the Palestinian Arab people has "legal sovereignty" over the whole of Palestine irrespective of the factual situation, did not have to change as a result of the Six-Day War.¹⁶

Yoram Dinstein who recognized Jordanian sovereignty in east Jerusalem expressed the opinion that this sovereignty survived the 1967 war, but that Israel is a lawful occupant of those areas since she occupied them in a war of self-defense.¹⁷

The corpus separatum theory was not affected by the war.¹⁸

As to the practical attitude of the international community: as mentioned, neither before nor after 1967 did the foreign consuls request an exequatur from Jordan or from Israel, which means that neither the sovereignty of the one nor of the other was recognized. Moreover, since 1967 the un organs, including the Security Council, have repeatedly stated that east Jerusalem is occupied territory subject to the Fourth 1949 Geneva Convention.¹⁹

The attitude of the United States has been expressed inter alia in a letter sent by President Carter to Egypt and Israel in the context of the 1978 Camp David accords.²⁰ The president wrote that the position of the U.S. remained as stated by Ambassador Goldberg at the un General Assembly in 1967 and subsequently by Ambassador Yost in the Security Council in 1969. There is, however, a difference between the speeches of the two ambassadors. While they both stressed that the actions of Israel in the city were merely provisional and that the problem of Jerusalem's future should be settled by negotiations, Ambassador Yost added that east Jerusalem was occupied territory to which the Fourth 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War applied.²¹ This attitude, however, did not prevent the U.S. administration from requesting Israel to extradite to the U.S. a person who lived in the eastern sector of the city.²² However, in 1995 the U.S. Congress passed a bill that calls for the recognition of united Jerusalem as the capital of Israel. The bill also required that the U.S. Embassy be moved from Tel Aviv to Jerusalem by 1999. As of 2006 this move has not yet taken place, due to a provision in the bill that authorizes the president to postpone its implementation if the security of the United States requires it.

As to the European Community, it adopted in 1980 a declaration (the Venice Declaration) on the Middle East which included a paragraph on Jerusalem:

The Nine recognize the special importance of the role played by the question of Jerusalem for all the parties concerned. The Nine stress that they will not accept any unilateral initiative designed to change the status of Jerusalem and that any agreement on the city's status should guarantee freedom of access for everyone to the Holy Places.²³

In 1993, the ambassador of Germany in Israel sent a diplomatic note to Israel in the name of the European Union. According to the communication he "reaffirmed" the position of the EU, stating that the status of Jerusalem is still the corpus separatum one.

The International Court of Justice, in its Advisory Opinion on the "Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory" (2004), spoke of East Jerusalem as occupied Palestinian territory.

Two internationally relevant developments concerning Jerusalem occurred in the 1980s. In 1981 the Old City and its walls were registered by Jordan in the World Heritage List established under the 1972 unesco Convention for the Protection of the World Cultural and Natural Heritage, and in 1982 it was included in the list of sites in danger.

The second event to be mentioned is the declaration of King Hussein of Jordan in 1988 that Jordan was detaching itself from the West Bank.

Thus far, we have reviewed the opinions on the legal status of Jerusalem under international law. But what is its status under Israeli law? Jerusalem was not mentioned in the Declaration of the Establishment of the State of May 14, 1948.²⁴

The application of Israeli law to the western sector of Jerusalem was ensured by a proclamation made by the minister of defense in 1948,²⁵ and by the Area of Jurisdiction and Powers Ordinance of 1948.²⁶ That ordinance provided that the law in force in the State of Israel should also apply to any part of Palestine which the minister of defense would designate by proclamation to be under occupation of the Israel Defense Forces.

At the end of 1949, following the renewed debate on Jerusalem in the un General Assembly, Israel's Prime Minister David Ben-Gurion announced in the Knesset (Israel's parliament) that Jerusalem was an inseparable part of the State of Israel and its eternal capital²⁷; this position was approved by the Knesset.²⁸

After the Six-Day War (1967), various measures were taken in order to include areas east of Jerusalem in Israel's jurisdiction: the Knesset passed the Law and Administration Ordinance (Amendment No. 11) Law of 1967,²⁹ authorizing the Government to apply the law, jurisdiction and administration of Israel to any area which was formerly part of Mandatory Palestine. Likewise the Municipalities Ordinance was amended so as to allow for the extension of the bounds of a municipality where a decision has been made as to the application of Israel's jurisdiction to a certain area, as referred to above.³⁰ And indeed, the Government issued an appropriate order as a result of which Israeli law was made to apply to the eastern sector of Jerusalem,³¹ which was also included within the jurisdiction of the Jerusalem municipality.

In several respects Israeli law granted east Jerusalemites certain facilities, by laying down special arrangements for them, as embodied in the Legal and Administrative Matters (Regulation) Law [Consolidated Version] of 1970.³² This law dealt, for example, with the registration of companies and with the citizenship of policemen. The most conspicuous examples of the differences between the law as applied to Israel on the one hand and to east Jerusalem on the other hand not mentioned in that law, are the system of education, and rules on foreign currency: in the eastern neighborhoods the Jordanian and later the Palestinian school curriculum has been taught, and the Jordanian dinar is used in parallel with the Israeli shekel.

As to the status of Palestinian inhabitants of East Jerusalem, they have been recognized as permanent residents of Israel, holding an Israeli identity card and having Israeli social rights, i.e., social security and medical insurance. They may also vote in municipal elections.

Israel has not imposed its citizenship on the East Jerusalemites, but they may of course apply for naturalization. So far not many have applied for Israeli citizenship.

Israel has increased the municipal boundaries of Jerusalem, and they were fixed as extending from Atarot in the north almost to Rachel's Tomb in the south, and from Ein Kerem in the west to the eastern slopes of Mount Scopus. (A further extension to the west, i.e., into Israel proper, was effected in 1993.)

The application of Israeli law to East Jerusalem was met with fierce criticism from various un bodies.³³

The question arose at the time as to whether these acts constituted annexation of the eastern parts of Jerusalem. The then minister of foreign affairs, Abba Eban, informed the un Secretary General in writing in July 1967³⁴ that they did not constitute annexation, but administrative and municipal integration. On the other hand, from the point of view of Israeli law, it was held in a number of decisions of the Supreme Court that the eastern sectors of Jerusalem had become a part of the State of Israel.

One of the earlier cases on this question is Ruidi and Maches v. Military Court of Hebron.³⁵ This case involved an antiquities dealer from Hebron who transferred antiquities from Hebron to East Jerusalem, without first obtaining an export license as required by the Jordanian antiquities law which applies on the West Bank. The dealer pleaded in his defense that at the critical time East Jerusalem was not foreign territory in relation to the West Bank, so that he could not be charged with exporting without a license. However, the Supreme Court did not accept this argument since it considered that the eastern sectors of Jerusalem had already become part of Israel.

In 1980 the Knesset adopted a new law concerning Jerusalem – the Basic Law: Jerusalem Capital of Israel.³⁶ This law states that "Jerusalem, complete and united, is the capital of Israel," that it is "the seat of the President of the State, the Knesset, the Government, and the Supreme Court," that the Holy Places shall be protected, and that the Government has to provide for the development and prosperity of Jerusalem. Its adoption aroused resentment in the international community and was considered by the Security Council to be "a violation of international law."³⁷ The Council called upon member States with embassies situated in Jerusalem to withdraw them from the city, and, indeed, the embassies, 13 in number, left the city following the resolution. In 1982 the Embassy of Costa Rica returned to West Jerusalem, and was followed by that of El Salvador. In 2000 Basic Law: Jerusalem Capital of Israel was amended. Two new provisions were added. The transfer of any powers, whether permanently or provisionally, concerning Jerusalem in its 1967 boundaries requires the consent of the majority of the Knesset (namely 61 votes). This provision relates to any powers vested by Israeli law in the government or in the municipality of Jerusalem.

Perhaps the most comprehensive discussion of the status of Jerusalem under Israel law as well as under Jewish law is included in Justice M. Elon's judgment in the case of The Temple Mount Faithful Association et al. v. The Attorney General et al., decided in 1993.³⁸ In this case the petitioners requested the High Court of Justice to order the Attorney-General and various other Israeli authorities to prosecute the Muslim Waqf for having undertaken on the Temple Mount certain works without the necessary permit. The High Court decided not to interfere in the discretion of the relevant authorities. In reaching its conclusion, the Court emphasized that the Temple Mount is part of the territory of the State of Israel and that the sovereignty of the State extends over unified Jerusalem in general and over the Temple Mount in particular. Hence all the laws of Israel, including the laws which guarantee freedom of worship at, the right of access to, and the protection of the Holy Places against desecration apply also to the Temple Mount. However, in several cases the Supreme Court has not applied the law to its full extent in matters relating to the Temple Mount.

The attitude of the Palestinians was expressed inter alia in 1988 and 2002. When the Palestine Liberation Organization proclaimed in 1988 the establishment of a Palestinian state, it asserted that Jerusalem was its capital. In 2002 the Palestinian Legislative Council adopted the Law of the Capital, which stipulated that Jerusalem was the capital of the Palestinian State, the main seat of its three branches of government. The State of Palestine is the sovereign of Jerusalem and of its holy places. Any statutes or agreement that diminishes the rights of the Palestinian State in Jerusalem is invalid. This statute can be changed only with the consent of two-thirds of the members of the Legislative Council.

Jerusalem and the Peace Process

One could argue over the question as to when the present peace process began. For practical purposes, the adoption of Security Council Resolution 242 of November 1967 can be chosen as the starting point, since this text is referred to in many of the agreements which have so far been reached. Resolution 242 does not include any express reference to Jerusalem. This Resolution, adopted in the wake of the Six-Day War, laid down the basic principles upon which peace should be founded.³⁹ Similarly, Security Council Resolution 338 adopted after the 1973 October War does not deal with Jerusalem. Neither do the Camp David accords of 1978⁴⁰ include provisions on Jerusalem, but the parties expressed their differing opinions on the subject in accompanying letters: Israeli Prime Minister Menachem Begin stated that in accordance with legislation of 1967, "Jerusalem is one city, indivisible, the Capital of the State of Israel," whereas Egypt's President, Anwar el-Sadat, stated that "Arab Jerusalem is an integral part of the West Bank," and "should be under Arab sovereignty." At the same time he determined that "essential functions in the City should be undivided," and that "a joint municipal council composed of an equal number of Arab and Israeli members can supervise the carrying out of those functions." He added that "in this way, the city shall be undivided."⁴¹

There was no reference to Jerusalem in the Peace Treaty concluded in 1979 by Egypt and Israel.⁴²

In October 1991 the Madrid Conference for Peace in the Middle East was convened by the United States and the Soviet Union.⁴³ After the Conference, bilateral negotiations took place. The question of Jerusalem was especially relevant to the negotiations between Israel and the Palestinians who attended the Conference as part of a joint Jordanian-Palestinian delegation.

According to the invitation from the U.S. and the Soviet Union, the negotiations with the Palestinians were to deal at the first stage with the establishment of interim self-government arrangements in the West Bank and Gaza for a period of five years, while in the third year after the setting up of that regime, negotiations on the permanent status of these areas would start. Although the text of the invitation to the Conference does not refer to Jerusalem, the city played an important role in the negotiations that preceded the Conference and in the letters of assurances from the United States to the Palestinians.

The U.S. promised that the composition of the delegation would not affect the claims of the Palestinians to Jerusalem. It expressed the view that the city should never again be divided, and that its final status should be determined by negotiations. The U.S. also stated that it did not recognize the annexation of east Jerusalem by Israel nor the extension of the municipal boundaries. It was the view of the U.S. that "Palestinians of east Jerusalem should be able to participate by voting in the elections for an interim self-governing authority," and that the Palestinians have the right "to bring any issue, including east Jerusalem, to the table." The U.S. did not specify whether Jerusalem could be brought "to the table" of the negotiations on the interim arrangements, or of the later permanent status negotiations.⁴⁴ The letters of assurances were issued by the United States in order to prod the parties to participate in the Conference.

While the post-Madrid bilateral meetings took place between Israel and a Palestinian delegation which, upon Israel's demand, formally did not include representatives of the plo, the latter and Israel conducted secret negotiations in Oslo with the good offices of Norway's Minister of Foreign Affairs. As a result, three letters were exchanged and a Declaration of Principles was initialed in Oslo and signed in Washington, d.c., on September 13, 1993.⁴⁵ This text was a turning point in the attitude of the two parties on the question of Jerusalem: it was agreed that Jerusalem would not be included in the interim self-government arrangements to be agreed upon – a concession by the Palestinians, and, on the other hand, Israel conceded that Jerusalem would be one of the subjects to be dealt with in the framework of the negotiations on the "permanent status" to start in 1996.⁴⁶ In addition, it was agreed that "Palestinians of Jerusalem who live there will have the right to participate in the election process" for the Interim Self-Government Authority for the West Bank and Gaza.⁴⁷ The parties disagreed on the question whether the Palestinians of Jerusalem have only the active right to vote, or also the right to be elected.

Israel's insistence on denying the right to be elected stemmed from the fear that the granting of such a right would be incompatible with Israeli sovereignty over the entire city. In addition, there was disagreement on the question, where the Jerusalemites should vote.

These matters were solved, at least partly, in the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, of September 28, 1995.⁴⁸ As to the passive right to be elected, it was agreed that only a Jerusalemite who has an additional address in the West Bank or Gaza may be elected, and he is to represent the other area, namely, not the city of Jerusalem (Article iii (1)(b) of Annex ii to the Interim Agreement). With regard to the physical location where Jerusalemites were actually to vote, it was agreed that most of the residents of Jerusalem would cast their vote in the Palestinian Jerusalem constituency beyond the municipal boundaries of the city. This solution was possible since the Jerusalem constituency according to the Palestinians is much larger than the city. In fact, on election day (January 20, 1996) most of the residents voted in Abu Dees – an Arab village just beyond the confines of the city. Only a small number of Palestinians – about 4,500 persons – were permitted to vote in post offices within the boundaries of the municipality proper (Article vi (2)(a) of Annex ii). Voting at the post offices was procedurally somewhat different from voting at a regular polling station, to emphasize that Jerusalem is not part of the areas under the jurisdiction of the Palestinian Council.

About a month after the signing of the Declaration of Principles, in October 1993, Israeli Foreign Minister Shimon Peres sent a letter concerning Palestinian institutions in East Jerusalem to the foreign minister of Norway, Johan Jurgen Holst.⁴⁹ The letter was kept secret for some time, and its discovery aroused much criticism in Israel. According to this letter, "all the Palestinian institutions of East Jerusalem, including the economic, social, educational, cultural, and the holy Christian and Moslem places, are performing an essential task for the Palestinian population …" and "will be preserved…." The meaning of this text and its effect raise difficult questions of interpretation.⁵⁰

Once the ice was broken between Israel and the Palestinians, the road was open for progress in the negotiations between Israel and Jordan. First a "Common Agenda" was agreed upon (September 14, 1993), then a joint declaration was adopted (July 25, 1994) and on October 26, 1994, a Peace Treaty was concluded.⁵¹ This Treaty includes, inter alia, a promise by Israel "to respect the present special role of Jordan in Muslim Holy Shrines in Jerusalem," and, "when negotiations on the permanent status will take place, Israel will give high priority to the Jordanian historic role in these shrines."⁵²

According to some press reports, in 1996 Jordan promised to transfer the custody of the Holy Places to the Palestinians once the latter acquire control of the city in the framework of the permanent status to be negotiated later.⁵³ However, the status of the Muslim Holy Shrines in Jerusalem is of interest and concern not only to Jordan, the Palestinians, and Israeli Muslims.

In the wake of the improved relations with the Palestinians and with Jordan, several other countries have established or re-established diplomatic relations with Israel. Of particular interest in this regard is the normalization of relations between Israel and the Holy See, foreseen by the Fundamental Agreement of December 30, 1993.⁵⁴ This document does not deal expressly with Jerusalem, but some of its provisions are relevant to the city, e.g., the commitment to favor Christian pilgrimages to the Holy Land, and the right of the Catholic Church to establish schools and to carry out its charitable functions. The parties affirmed their "continuing commitment to maintain and respect the 'status quo' in the Christian Holy Places to which it applies …" – a reference to the status quo established in the 18^th and 19^th centuries by the Ottoman Empire in order to regulate the rights of various competing Christian churches at certain Holy Places in Jerusalem and in Bethlehem.⁵⁵

The negotiations on the permanent status started in May 1996, but were suspended after a few hours. They were resumed in 1999 and led to the July 2000 Camp David Summit. These intensive negotiations failed, to a large extent because of disagreement over the future of Jerusalem, in particular over the Old City and the Temple Mount. Some of the Palestinian leaders, including Arafat, even claimed that there had never been a Jewish Temple on the Temple Mount. Neither did the January 2001 meeting in Taba lead to a breakthrough.

Since then, several proposals have been drafted concerning the search for a resolution to the Israel-Palestinian dispute including Jerusalem (e.g., President Clinton, 2000; Ayalon-Nusseibeh, 2002; the Arab States Peace Initiative, 2002; Beilin-Abd Rabbo Geneva Initiative, 2003), but so far (2006) none has been adopted by the parties. On the other hand, the 2003 Road Map, sponsored by the U.S., Russia, the un, and the eu (the Quartet), has been accepted by the parties. According to this text, the conflict should be resolved in stages. With regard to Jerusalem, it states that in the third stage, the parties should negotiate and reach an agreement that includes a resolution of the status of Jerusalem that takes into account the political and religious concerns of both sides, and protects the religious interests of Jews, Christians, and Muslims worldwide

Conclusion

The status of West and East Jerusalem has been the subject of very differing opinions of various writers. So far foreign states have not recognized any sovereignty over Jerusalem, but have acquiesced in Israeli de facto control over western Jerusalem, while claiming that East Jerusalem is occupied territory. For the Israeli authorities, the whole of Jerusalem is part of the State of Israel.

In some of the agreements so far reached there are timid references to Jerusalem and the Holy Places: in the 1993 Declaration of Principles it was agreed that Jerusalem (without definition of its contours) would not be discussed in the negotiations on the interim self-government arrangements (a concession by the plo), but that it would be included in the negotiations on the permanent status (a concession by Israel). The Declaration of Principles also foresees the participation of East Jerusalemites in the elections for the self-government authority.

In the 1994 Israel-Jordan Treaty of Peace Israel promised to respect Jordan's present role in Muslim Holy Shrines in Jerusalem, and also undertook to give high priority to Jordan's historic role at those shrines when negotiating on the "permanent status."

The difficulties concerning these early provisions were but a foretaste of the diplomatic battle over Jerusalem in the negotiations on the permanent status. Disagreement has encompassed many thorny questions, e.g., matters related to sovereignty; jurisdiction and powers, in particular in the sphere of security, transportation and access roads, town planning; Holy Places (foremost those that are holy to two or more denominations) such as the Temple Mount; and municipal matters. There is hardly any subject which could not lead to conflict, but where there is a will there is a way and if both parties are sincerely looking for a compromise, it may be hoped that they will find one.

Notes

For a concise overview of the various opinions, see Moshe Hirsch in Ruth Lapidoth and Moshe Hirsch, Jerusalem – Political and Legal Aspects (The Jerusalem Institute for Israel Studies, 1994), 11–15 (in Hebrew), and in Moshe Hirsch, Debra Housen-Couriel, and Ruth Lapidoth, Whither Jerusalem? Proposals and Positions Concerning the Future of Jerusalem (The Hague, Kluwer Law International, in Collaboration with The Jerusalem Institute for Israel Studies, 1995), 15–24.
In the present article only opinions on the lex lata are reproduced. For a summary of the various proposals de lege ferenda; see M. Hirsch, D. Housen-Couriel, and R. Lapidoth, op. cit., 25–125 and Naomi Chazan, Negotiating the Non-Negotiable: Jerusalem in the Framework of an Israeli-Palestinian Settlement (International Security Studies Program, American Academy of Arts and Sciences, Cambridge, ma, Occasional Paper No. 7, March 1991). Gershon Baskin, Jerusalem of Peace – Sovereignty and Territory in Jerusalem's Future (Jerusalem, Israel/Palestine Center for Research and Information, 1994); Dore Gold, Jerusalem – Final Status Issues: Israel-Palestinians, Study No. 7 (Tel Aviv, The Jaffee Center for Strategic Studies, Tel Aviv University, 1995): proposal prepared by the Arab Studies Society in 1995 (a summary in Hebrew was published in the Jerusalem weekly Kol Ha-Ir of October 20, 1995; President Clinton's proposals of 2000, the Arab States proposal of 2003, Sari Nusseibeh-Ami Ayalon principles of 2002, and the Yossi Beilin-Yassir Abd Rabbo Geneva Initiative of 2003
See e.g., Elihu Lauterpacht, Jerusalem and the Holy Places (London, The Anglo-Israel Association, 1968, reprinted 1980); Julius Stone, Israel and Palestine – Assault on the Law of Nations (Baltimore, The Johns Hopkins University Press, 1981), 116–118; Stephen Schwebel, "What Weight to Conquest?" American Journal of International Law, 64 (1970), p. 344. For a similar but not quite identical opinion, see M.I. Gruhin, "Jerusalem: Legal and Political Dimensions in a Search for Peace," Case Western Journal of International Law, 12 (1980), p. 169.
hrh Crown Prince Hassan bin Talal, A Study on Jerusalem (London, Longman, 1979), 24–27. See also G.I.A.D. Draper, "The Status of Jerusalem as a Question of International Law," in: Hans Koechler (ed.), "The Legal Aspects of the Palestine Problem with Special Regard to the Question of Jerusalem," Studies in International Relations, 4 (Wien, Braumueller, 1981), 154–163.
Henry Cattan, Jerusalem (New York, St. Martin's Press, 1981), 104 and 107; idem, Palestine and International Law, 2^nd ed. (London, Longman, 1976), 112–121; idem, The Palestine Question (London, Longman, 1988), 324–326.
The Status of Jerusalem (New York, United Nations, 1979), prepared for the Committee on the Exercise of the Inalienable Rights of the Palestinian People; Sally V. Mallison and W. Thomas Mallison, "The Jerusalem Problem in Public International Law: Juridical Status and a Start Towards Solution," in Hans Koechler, ed., supra note 3, 98–119, at p.107; Antonio Cassese, "Legal Considerations on the International Status of Jerusalem," ibid., 144–153, 149 and 151. For the text of the Resolution, see Official Records of the second session of the un General Assembly, Supplement No. 11, Volumes i–iv. It has been reproduced inter alia in Ruth Lapidoth and Moshe Hirsch (eds.), The Arab-Israel Conflict and its Resolution: Selected Documents (Dordrecht, Martinus Nijhoff, 1992), 33–54 (henceforth: The Arab-Israel Conflict – Documents).
For a comprehensive analysis of the attitude of the United States, see Shlomo Slonim, "The United States and the Status of Jerusalem, 1947–1984," Israel Law Review, 19 (1985), p. 179.
Civil Case Jerusalem 208/52, Pesaquim Mehoziyyim, 8 (1952/1953), p. 455; Pesaquim Mehoziyyim, 16 (1958), p. 20; Execution Case Jerusalem 157/53, Pesaquim Mehoziyyim, 9 (1953/1954), p. 502. For an English overview of the various decisions, see International Law Reports, 20, 1953 (1as7), 391–405.
See, e.g., Statement by the Minister of State of the United Kingdom in the House of Commons, April 27, 1950, reproduced in Ruth Lapidoth and Moshe Hirsch (eds.), The Jerusalem Question and its Resolution: Selected Documents (Dordrecht, Martinus Nijhoff, in cooperation with The Jerusalem Institute for Israel Studies, 1994), 147–148 (henceforth: Jerusalem – Selected Documents); letters by Janet G. Mullins, United States Assistant Secretary of State for Legislative Affairs, to Lee H. Hamilton, Chairman of the Subcommittee on Europe and the Middle East, U.S. House of Representatives, of 29 June and 6 September 1989, reproduced ibid., 447–449.
See, e.g., ibid., p.449.
For references, see supra note 2.
For references, see supra note 4. For somewhat similar opinions, see Michael Van Dusen, "Jerusalem, the Occupied Territories and the Refugees," in Majid Khadduri (ed.), Major Middle Eastern Problems in International Law (Washington dc, American Enterprise Institute, 1978), p. 51; John Quigley, "Old Jerusalem: Whose to Govern," Denver Journal of International Law and Policy, 20 (1991), 145, 164–166.
Yoram Dinstein, "Autonomy," in Y. Dinstein (ed.), Models of Autonomy (New Brunswick, Transaction Books, 1981), 291–303, p. 300. On the Jericho meeting, see Jerusalem – Selected Documents, 145–148. It is not known whether Dinstein has changed his opinion on the question of sovereignty due to Jordan's disengagement from the West Bank in 1988. For the text of this statement concerning disengagement, see International Legal Materials, 27 (1988), p. 1637, reproduced in The Arab-Israel Conflict – Documents, p. 339.
For references, see supra note 5.
For references, see supra note 2.
Yehuda Z. Blum, The Juridical Status of Jerusalem (Jerusalem, The Leonard Davis Institute for International Relations, 1974); idem, "The Missing Reversioner: Reflections on the Status of Judea and Samaria," Israel Law Review, 3 (1968), 279–301.
For references, see supra note 4.
For references, see supra note 12.
Supra, note 5.
E.g., Security Council Resolution 465, of March 1, 1980, SCOR, 35^th Year, 1980, Resolutions, p. 5, un Doc. s/inf/36; Security Council resolution 478, of August 20, 1980, SCOR, 35^th Year, 1980, Resolutions, p. 14, both reproduced in Jerusalem – Selected Documents, 311 and 351.
Jerusalem – Selected Documents, p. 300.
For the Statement made by Ambassador Goldberg, see gaor, 5^th Emergency Special Sess. (Plenary Meetings), 1554^th meeting, July 14, 1967, 9–11. For Ambassador Yost's Statement, see scor, 24^th year, 1969, 148^th meeting, July 1, 1969. 11–12; both are reproduced in Jerusalem – Selected Documents, 174–177 and 236–238.
Attorney General v. Yoel Davis, Pesaquim Mehoziyyim, 3 (1988/1989) (3), 336–342. For a summary in English, see Jerusalem – Selected Documents, 535–539.
Bulletin of the European Communities, 6 – 1980, p. 10, reproduced in Jerusalem – Selected Documents, 314–315.
Laws of the State of Israel, Authorized Translation (henceforth: lsi), vol. 1, 5708 – 1948, p. 3, reproduced in The Arab-Israel Conflict – Documents, p. 61.
English translation published in Jerusalem – Selected Documents, 27–29.
lsi, 5708 – 1948, p. 64.
English translation in Meron Medzini (ed.), Israel's Foreign Relations: Selected Documents 1947–1974 (Ministry of Foreign Affairs, Jerusalem, 1976), 223–226, reproduced in Jerusalem –Selected Documents, 81–84.
Ibid.
lsi, vol. 21, 5727 – 1966/67, p. 75, reproduced in: Jerusalem – Selected Documents, p. 167.
lsi, ibid., p. 75; The Arab-Israel Conflict – Documents, p. 130.
Law and Administration (No. 1) Order, of 28 June 1967, Collection of Subsidiary Legislation (Kovets Ha-Takanot), 5727 (1966/67), p. 2690. Another important law that was adopted in 1967 and which is relevant to Jerusalem is the Protection of the Holy Places Law, 5727 – 1967, lsi, Vol. 21, 5727 – 1966/67, p. 76, reproduced in: The Arab-Israel Conflict – Documents, p. 132.
lsi, Vol. 24, 5730 – 1969/70, 144–152, reproduced in Jerusalem – Selected Documents, 242–251.
See e.g., General Assembly Resolution 2253 (es-v), of July 4, 1967, GAOR, 5^th Emergency Special Session, 1967, Resolutions, Su 1 (A/6978), p. 4, reproduced in Jerusalem – Selected Documents, p. 170.
Letter of July 10, 1967, gaor, 5^th Emergency Special Sess., 1967, p. 1 (A/6753–S/8052), reproduced in Jerusalem – Selected Documents, 171–173.
24 (2) Piske Din (1970), p. 419. For a summary in English, see Jerusalem – Selected Documents, 502–506.
lsi, Vol. 34, 5740 – 1979/80, p. 209, reproduced in Jerusalem – Selected Documents, p. 322.
Security Council resolution 478, of August 20, 1980, SCOR, 35^th year, 1980, Resolutions, p. 14, reproduced in Jerusalem – Selected Documents, p. 351.
47 (5) Piske-Din (1993), 221–288.
scor, 22^nd year, Resolutions and Decisions, 8–9, reproduced in The Arab-Israel Conflict – Documents, p. 134. This resolution has been the subject of differing interpretations by the parties, and of a great number of scholarly articles. Among the more recent ones are: Adnan Abu Odeh, Nabil Elaraby, Meir Rosenne, Dennis Ross, Eugene Rostow, Vernon Turner, un Security Council Resolution 242: The Building Block of Peacemaking (The Washington Institute for Near East Policy, 1993); Ruth Lapidoth, "Security Council Resolution 242 at Twenty Five," Israel Law Review, 26 (1992), 295–318.
United Nations Treaty Series, vol. 1138, 39–56, reproduced in The Arab-Israel Conflict – Documents, 195–201.
Jerusalem – Selected Documents, 299–300.
United Nations Treaty Series, Vol. 1138, No. 17855, 72–163, reproduced in The Arab-Israel Conflict – Documents, 218–242.
Text of the letter of invitation reproduced in The Arab-Israel Conflict – Documents, 384–386.
Letter of October 18, 1991, reproduced in The Jerusalem Post, October 31, 1991.
un Doc. a/48/486 – s/26560 (Annex), of October 11, 1993; International Legal Materials, 32 (1993), 1525–1544. On the Declaration of Principles, see Joel Singer, "The Declaration of Principles on Interim Self-Government Arrangements," Justice, no. 1, February 1994, 4–21; Eyal Benvenisti, "The Israel-Palestinian Declaration of Principles: A Framework for Future Settlement," European Journal of International Law, 4 (1993), 542–554; Antonio Cassese, "The Israel-plo Agreement and Self-Determination," ibid., 5564 – 571; Raja Shihadeh, "Can the Declaration of Principles Bring About a 'Just and Lasting Peace'?," ibid., 555–563.
Articles iv and v (3), and Agreed Minutes.
Annex i, para 1.
Published by the Ministry of Foreign Affairs, Jerusalem.
Reproduced in the Jerusalem Post, June 7, 1994.
For an analysis of these questions, see Ruth Lapidoth, "Jerusalem and the Peace Process," Israel Law Review, 28 (1994), 402–434, 428–430.
International Legal Materials (1995), p. 43.
Article 9 of the Treaty of Peace.
Ha'aretz, November 6, 1994, p. a–4; Ha'aretz, November 13, 1994, p. a–10.
International Legal Materials, 33 (1994), p. 153.
On the status quo, see Shmuel Berkovitz, "The Legal Status of the Holy Places in Israel," Thesis submitted for the degree of Ph.D. to the Hebrew University, March 1978, 35–45; L.G.A. Cust, The Status Quo in the Holy Places (1929, reproduced in 1980 by Ariel Publishing House, Jerusalem).

[Ruth Lapidoth (2^nd ed.)]

Jerusalem, Legal Aspects

views updated