ELIHU LAUTERPACHT
JERUSALEM
and the
HOLY PLACES
THE ANGLO-ISRAEL ASSOCIATION
FOREWORD
This pamphlet has been specially written for the Anglo-Israel
Association by Mr. Elihu Lauterpacht, who like his late distinguished father,
is an international lawyer who lectures on the subject at Cambridge. Hitherto
we have published lectures attended by our Members, or reports written by
Wyndham Deedes Scholars after visiting Israel to study a specific project. While
continuing with these regular pamphlets, we hope to treat a number of
outstanding problems, which affect Israel's future, by specially commissioned
studies. This is the first such
study; though in March we published another pamphlet on a quite different
aspect of Jerusalem, namely `Jerusalem -a New Era for a Capital City,' by
Richard Westmacott, a professional landscape architect and Wyndham Deedes
Scholar.
Mr. Lauterpacht's approach is partly legal and partly historical. It
contains much useful source material for scholars, politicians and civil servants,
especially those serving in the United Nations.His argument is closely reasoned
and includes a detailed analysis of the various proposals which have been made
for the `internationalization of Jerusalem.’
There is a pressing need for precise thinking on many of Israel's
post-Six Day War problems. This pamphlet makes one man's contribution towards
the expression of such thinking,
and in that spirit we are pleased to offer it to our members and we hope
to a much wider public
.
KENNETH LINDSAY,
Director.
_____________________
Further copies of this pamphlet
may be obtained at10s. post free. Details of earlier pamphlets in this series
are to be .round on page 87. All obtainable from the Secretary, Anglo-Israel
Association, 83 Wimpole Street, London, W.1.
ANGLO-ISRAEL ASSOCIATION
PAMPHLET
No. 19
ELIHU
LAUTERPACHT
Fellow of Trinity College, Cambridge
and
Lecturer in Law in the University of Cambridge
JERUSALEM
and the
HOLY PLACES
PUBLISHED
BY THE ANGLO-ISRAEL ASSOCIATION
83 WIMPOLE
STREET, LONDON, W.1.
OCTOBER
1968
CONTENTS
CHAPTER I. JERUSALEM AND THE HOLY
PLACES: TWO
DISTINCT MATTERS ... ... ... ... ... 5
CHAPTER
II. THE ROLE OF THE UNITED NATIONS 13
(a) Legal
History of Palestine to 1947 13
(b) In 1947 14
(c) Effect of the Partition Resolution
(d) Developments subsequent to the
Partition Resolution 21
(i) Rejection by the Arabs of the
Political Frame
work for internationalization 21
(ii) Gradual Exhaustion of U.N. Interest in Inter-
nationalization 23
1948-1952: U.N. discussion 24
1952-1967: U.N. inaction 33
1967: General Assembly Resolutions
... 33
1968: Security Council Resolution 35
(e) Conclusions ……………………………………………………36
CHAPTER III. The law and
Jerusalem. 37
(a) The New City ... ... 37
(b) The Old City ... ... 46
(i) Jordan's Position Prior to June
1967 46
(ii) Israel's Position since June
1967 ... 47
Chapter iv. The future of the holy
places 54
(a) International Assurances 55
(i) Form 55
(ii) Content: Substance-Supervision-Disputes 59
(b) A Possible Declaration
and Statute: 68
Introduction-Draft
Declaration-Draft Statute 68
Appendices
1. Draft
Agreement between U.N. and Israel, 1949... 76
2. Swedish Draft Resolution, 1950 ... ... ... 80
3. United Kingdom, United States of America and
Uruguay: Amendment to Swedish Draft
Resolution,
1950 ... 84
LIST OF ABBREVIATIONS
G.A.O.R. ... ... Official Records
of the General Assembly.
Israel and the U.N. ... ISRAEL AND THE UNITED NATIONS, a Report of a Study Group set up by the Hebrew
University of Jerusalem, prepared for the Carnegie Endowment of International
Peace (1956).
S.C.O.R. ... ... Official Records
of the Security Council.
T.C.O.R. ... ... Official Records
of the Trusteeship Council.
U.N. ... ... ... United
Nations.
U.N.S.C.O.P. ...
United Nations Special Committee on
Palestine.
U.N.T.S. ... ... United
Nations Treaty Series.
Y.B.U.N. ... ... Year Book of
the United Nations.
CHAPTER I
JERUSALEM AND THE HOLY PLACES:
TWO
DISTINCT MATTERS
It is generally assumed that in
any peace settlement in the Middle East the solution of the question of
Jerusalem and the Holy Places will play a significant part. To a large extent
this is no doubt true-if only because Jerusalem is at the physical centre of
the conflict and because the tension surrounding it is symbolic of the division
between Israel and her neighbours. At the same time it is important that the
problems of Jerusalem and the Holy Places should not be allowed to assume
dimensions which will render their solution-whether on a multilateral, bilateral
or unilateral basis-any more difficult than their intrinsic characteristics
require.
Perhaps the very title of this
paper by linking Jerusalem and the Holy Places tends to promote the confusion
which affects the topic. For in truth there exist two quite distinct
problems-the question of the Holy Places and the question of Jerusalem. They
are brought together in people's minds because the majority of the Holy Places
in the territory of what used to be Palestine happen to be situate in
Jerusalem'.
It would be an oversimplification
to say that, for the Jews at any rate, concern for Jerusalem is exclusively a consequence of the accumulation
there of Holy Places.For them, the City as such has assumed over the ages a
dominant significance in their thought which, though fundamentally associated
with the
________________
'The
following is a list of Holy Places compiled by the United Nations in 1949.
It covers only the Holy Places in and around Jerusalem, but not elsewhere.
It
does not include, for example, the Holy Places associated with the residence of
Jesus at Nazareth.
Christian-1. Basilica of the Holy Sepulchre (inclusive I to IX
Stations of the Cross) 2. Bethany 3. Cenacle 4. Church of St. Anne 5. Church of St. James the Great 6. Church of St. Mark 7. Deir al Sultan 8. Tomb of the Virgin and Gardens of Gethsemane
9. House of Caiphas and Prison of
Christ 10. Sanctuary of the Ascension and Mount of Olives 11. Pool of Bethesda 12. Ain Karim 13. Basilica of the Nativity, Bethlehem
14. Milk Grotto, Bethlehem 15. Shepherds Field, Bethlehem; Moslem-16. Tomb of Lazarus 17. El
Burak esh-Sharif 18. Haram esh-sharif
(Mosque of Omar and Mosque of Aksa) 19.
Mosque of the Ascension 20. Tomb of
David (Nebi Daoud); Jewish-21. Tomb
of Absalom 22.
Ancient and Modern Synagogues 23. Bath of Rabbi Ishmael 24. Brook Siloam 25. Cemetery on Mount of Olives
26. Tomb of David 27.
Tomb of Simon the Just 28. Tomb of
Zachariah and other tombs in Kidron Valley 29. Wailing Wall 30. Rachel's Tomb.
5
5
relics there of the Temple, exists now virtually
independently of its origins'.
Not only are the two problems
separate; they are also quite distinct in nature from one another. So far as
the Holy Places are concerned, the question is for the most part one of
assuring respect for the existing interests of the three religions and of
providing the necessary guarantees of freedom of access, worship, and religious
administration. Questions of this nature are only marginally in issue between
Israel and her neighbours and their solution should not complicate the peace
negotiations.
As far as the City of Jerusalem
itself is concerned, the question is one of establishing an effective
administration of the City which can protect the rights of the various elements
of its permanent population-Christian, Arab and Jewish-and ensure the
governmental stability and physical security which are essential requirements
for the city of the Holy Places.
There is no inherent need to
confuse the two matters. Throughout the period immediately prior to the ending
of the mandate in Palestine in 1948 they were approached separately. Such
association as there may have been between them was the understandable
consequence of the fact that in the Middle Ages wars were fought largely for
religious reasons. The object of the Crusader seizure of Jerusalem was the
protection of the Christian Holy Places. Comparable motives underlay the Arab
re-conquest. Thus, Jerusalem and the Holy Places were thought of together.
During the four
centuries from 1517 to 1917, however, Jerusalem was under the exclusive control
of the Ottoman Empire. Though not an entirely satisfactory solution for either
Christians or Jews, the fact remains that for four hundred years a united City
was governed by a single sovereign in a manner which by and large permitted
adequate pursuit of the three dominant religious faiths. Again, during the
period from 1917 to 1947 when Jerusalem was under British control, first as
occupants of the City during and immediately after the First World War and then
as administering authorities under the League of Nations mandate granted in
1922, a single sovereign was responsible for the government of the City.
'See Israel and the U.N, p. 130.
6
Nothing was said in the Mandate
about the internationalization of Jerusalem. Indeed Jerusalem as such is not
mentioned though the Holy Places are. And this in itself is a fact of
relevance now. For it shows that in 1922 there was no inclination to identify
the question of the Holy Places with that of the internationalization of
Jerusalem.
So in Article 13 of the Mandate we
find that all responsibility "in connection with the Holy Places and religious
buildings or sites in Palestine, including that of preserving existing rights
and of preserving access to the Holy Places, religious buildings and sites and
the free exercise of worship" is placed upon the Mandatory which in its
turn "shall be responsible solely to the League of Nations in all matters
connected herewith."
Upon the powers of the Mandatory
in this regard one important limitation was placed:
"nothing in this Mandate
shall be construed as conferring upon the Mandatory authority to interfere with
the fabric or the management of purely Moslem sacred shrines, the immunities of
which are guaranteed.”
Article 14 required the Mandatory
to appoint a special Commission to study, define and determine the rights and
claims in connection with the Holy Places and the rights and claims relating to
the different religious communities in Palestine. The composition and functions of the Commission were to
be approved by the Council of the League.
By Article 15, the Mandatory was
required to "see that complete freedom of conscience and the free exercise
of all forms of worship, subject only to the maintenance of public order and
morals, are ensured to all."
The Mandatory was, further, made
“responsible for exercising such supervision over religious or eleemosynary
bodies of all faiths in Palestine as may be required for the maintenance of
public order and good government. Subject to such supervision, no measures
shall be taken in Palestine to obstruct or interfere with the enterprise of
such bodies or to discriminate against any representative or member of them on
the ground of his religion or nationality." (Art. 16).
The scheme thus established worked
reasonably well in practice, even though no agreement on the appointment of the
Commission called for by Article 14 of the Mandate could be reached until 1930.
7
Two features of the position
during the period of the Mandate' may be noted: first, there was no suggestion
that questions connected with the Holy Places could any the better be resolved
in an internationalized city of Jerusalem; and, second, no distinction was
drawn between the Holy Places in Jerusalem and those elsewhere in Palestine.
There was, therefore, a distinct
element of novelty in the formal identification in 1947 of the questions of Jerusalem
and the Holy Places in the shape of the proposal for the internationalization
of Jerusalem2. This was introduced as one of
the four components of the solution of the Palestine problem adopted by the
General Assembly in 1947. The other three were the creation of an Arab State,
the creation of a Jewish State and the establishment of an economic union
between the two.
Though
it cannot be said that in 1947 the idea of internationalizing Jerusalem was
wholly unreasonable, at best it was highly speculative. There were
international precedents. There had been an international regime in Tangier
since 1906. Danzig had been under the control of the League of Nations from
1920 to 1939. The Saar had been ruled by an international commission from 1920
to 1934. The Allied powers were even then thinking about the
internationalization of Trieste. But there had been no experience-other than
that of the Saar-of a prolonged and successful international administration.
Moreover, in the particular case of Jerusalem both the Jews and the Arabs were
opposed to it-a lack of popular support which had neither characterised nor
been politically relevant to the previous cases. The Jewish authorities were
prepared in 1947 to waive their opposition to the internationalization of
Jerusalem as part of an overall settlement of the Palestine problem. The
Arabs-being opposed to any solution in Palestine other than by way of an
acknowledgment of an independent state of Palestine to be ruled by Arabs-as
much denied the U.N. the right to internationalize Jerusalem as they denied it
the right to partition the country.
1 For a summary of some
aspects of this, see below, p.p. 64-67
2
The prospect of the partition of Palestine, involving the exclusion of
Jerusalem from the Jewish state, had however, been a feature of discussions on
the future of Palestine since the Royal Commission's Report of 1937. See Israel and
the U.N, p. 130.
8
Some reflection of U.N.
realization of the uncertainty of the future-and with it some appreciation of the
ultimate severability of the political control of Jerusalem from the
protection of the Holy Places-is to be found in those provisions of the
Partition Resolution which referred to the duration of the special regime for
the City. The regime was to remain in force in the first instance for a period
of ten years from lst October, 1948. In 1958 the Trusteeship Council was to
re-examine the whole scheme in the light of the experience acquired with its
functioning. At that time the residents of the City were to be free to express
by means of a referendum their wishes as to possible modifications.
Now, not ten, but
twenty years have passed since the General Assembly sought to fuse the
questions of Jerusalem and of the Holy Places by internationalizing Jerusalem.
The reasons then given by U.N.S.C.O.P. for internationalization now carry
little conviction 1. Conditions have arisen which were not foreseen
in 1948. Indeed, some could hardly have been imagined at that time.
'The majority group sought
to justify its proposals for Jerusalem by reference to five considerations:
(i)
that as a Holy City for three faiths, the sacred character of the Holy Places
should be preserved and access to them guaranteed to pilgrims from abroad; (ii)
that history had shown that religious peace had been maintained in the City
because the Government was anxious to prevent controversies involving religious
interests from developing into bitter strife and disorder and had the power to
do so;
(iii) that religious peace
in Jerusalem is necessary for the maintenance of peace in the Arab and Jewish
States;
(iv)
that the application of the provisions relating to the Holy Places, religious
buildings and sites in the whole of Palestine would also be greatly facilitated
by the setting up of an international authority in Jerusalem, with a Governor
empowered to supervise the provisions and arbitrate conflicts in respect of
the Holy Places; and
(v)
that the International Trusteeship System is proposed as the most suitable
instrument because the Trusteeship Council, as a principal organ of the U.N.,
"affords a convenient and effective means of ensuring both the desired
international supervision and the political, economic and social well-being of
the population of Jerusalem."
One
may venture the comment upon these factors that, in relation particularly to
the third, peace in Jerusalem has not been the pre-condition of peace between
the Jews and Arabs-but rather that peace between Jews and Arabs is the precondition
of peace in Jerusalem. Secondly, with reference to the final consideration,
while in 1947 it was quite reasonable to place some reliance upon the
possibilities inherent in the idea of trusteeship under direct international
supervision, it is a concept for which no other application has been found in
the ensuing twenty years. Indeed, the international trusteeship system, having
served a useful and important purpose during the first two decades of the
United Nations, is now virtually obsolete.
9
It is worth recalling a number of these new conditions:
-The Arab States rejected the Partition Plan and the proposal for the
internationalization of Jerusalem.
-The Arab States physically
opposed the implementation of the General Assembly Resolution. They sought by
force of arms to expel the Jewish inhabitants of Jerusalem and to achieve sole
occupation of the City.
-In the event, Jordan obtained control only of the Eastern
part of the City, including the Walled City.
-While Jordan permitted reasonably
free access to Christian Holy Places, it denied the Jews any access to the
Jewish Holy Places. This was a fundamental departure from the tradition of
freedom of religious worship in the Holy Land which had evolved over centuries.
It was also a clear violation of the undertaking given by Jordan in the
Armistice Agreement concluded with Israel on 3rd April, 1949. Article VIII of
this Agreement called for the establishment of a Special Committee of Israeli
and Jordanian representatives to formulate agreed plans on certain matters
"which, in any case, shall include the following, on which agreement in
principle already exists ... free access to the Holy Places and cultural
institutions and use of the Cemetery on the Mount of Olives."'
-The U.N. displayed no concern over the discrimination
thus practised against persons of the Jewish faith.
-The U.N. accepted as
tolerable the unsupervised control of the Old City of Jerusalem by Jordanian
forces-notwithstanding the fact that the presence of Jordanian forces west of
the Jordan River was entirely lacking in any legal justification.
-During the period
1948-1952 the General Assembly gradually came to accept that the plan for the
territorial internationalization of Jerusalem had been quite overtaken by
events. From 1952 to the present time virtually nothing more has been heard of
the idea in the General Assembly.
On 5th June, 1967, Jordan deliberately overthrew
the Armistice Agreement by attacking the Israeli-held part of Jerusalem. There
was no question of this Jordanian action being a reaction to any Israeli
attack. It took place notwithstanding explicit Israeli assurances, conveyed to
King Hussein through the U.N. Commander, that if Jordan did not attack
' U.N.T.S., vol. 42, p. 314.
10
Israel, Israel would not attack Jordan. Although the
charge of aggression is freely made against Israel in relation to the Six Days
War the fact remains that the two attempts made in the General Assembly in
June-July 1967 to secure the condemnation of Israel as an aggressor failed. A
clear and striking majority of the members of the U.N. voted against the
proposition that Israel was an aggressor'.
In consequence, Israel is in
occupation of the whole of Jerusalem and has re-unified the administration of
the City. This situation has now persisted for over a year. During that time
there has been unrestricted freedom of access for persons of all faiths to all
the Holy Places in Jerusalem. In particular, it may be noted, Moslems have
enjoyed, under Israeli control, the very freedom which Jews were denied during
Jordanian occupation.
In these circumstances, it becomes
relevant to ask what is to be done in the future about Jerusalem and the Holy
Places? In particular, we may ask what role, if any, has the U.N. to play in
this connection?
The answers to these questions
involve an appreciation of the following considerations:
(i) The role of the U.N. in
relation to the future of Jerusalem and the Holy Places is limited. In
particular, the General Assembly has no power of disposition over Jerusalem and
no right to lay down regulations for the Holy Places. The Security Council, of
course, retains its powers under Chapter VII of the Charter in relation to
threats to the peace, breaches of the peace and acts of aggression, but these
powers do not extend to the adoption of any general position regarding the
future of Jerusalem and the Holy Places.
(ii) Israel's governmental measures in relation to
Jerusalem -both New and Old-are lawful and valid.
(iii)
The future regulation of the Holy Places is a matter to be determined quite
separately from the political administration of Jerusalem. Territorial
internationalization of Jerusalem
'The
relevant paragraph of the Soviet draft resolution of 18th June, 1967, (A/L.519)
was defeated on 4th July, 1967, by 36 votes in favour, 57 against and 23 abstentions.
On the same day an Albanian draft resolution (A/L.521) to similar effect was
even more disastrously lost-22 votes in favour, 71 against and 27 abstentions.
11
is dead-but the possibility of functional
internationalization is not. The latter means, in effect, the recognition of
the universal interest in the Holy Places situate in Jerusalem and the adoption
of links between Israel and the world community to give formal expression to
that interest.
The remainder of this pamphlet will be taken up with a
more detailed examination of these three considerations.
12
CHAPTER
II
THE ROLE
OF THE UNITED NATIONS
(a) LEGAL HISTORY OF PALESTINE TO 1947
In order to estimate the role of
the U.N. in relation to Jerusalem and the Holy Places, it is necessary to look
at the legal history of the territory in which Jerusalem is situated.
We need go no further back than
the period immediately prior to the First World War. From 1517 to 1917
Jerusalem, as part of Palestine, was under Turkish rule. By Article 16 of the
Treaty of Lausanne of 1923 Turkey renounced all rights and title over, amongst
other areas, that of Palestine, "the future of these territories ... being
settled or to be settled by the parties concerned."
In the case of Palestine "the parties concerned"
had already settled its future. On 24th July, 1922, the League of Nations with
the assent of the Principal Allied and Associated Powers, had granted a mandate
in respect of Palestine to the British Government.
We thus have the situation in
which Turkey's title to Palestine devolved upon the Principal Allied and
Associated Powers who, in their turn, had in effect already conveyed their
rights to the League of Nations. The precise location of sovereignty over
Palestine during the period of the Mandate has been a matter of academic
dispute, but is now largely without practical significance. After the grant of
the Mandate it is clear that sovereignty no longer rested with the Principal
Allied and Associated Powers. Equally it is clear that the mere fact that the
mandate to administer Palestine had been given to Britain did not convey
sovereignty to her. Indeed, it was one of the fundamental elements in, and
prime objects of, the Mandate system that the administering authority should
not be sovereign, but should possess only those powers granted by the Mandate
and in the exercise of them should be subject to the supervision of the League.
If the test of sovereignty rests in determining who had
the power to dispose of any part of a territory under Mandate, the
13
answer is that sovereignty lay in the League and the
administering authority acting jointly. For example, when in 1923 Great Britain
and Belgium agreed to modify the common frontier of their East African mandated
areas, they requested the consent of the League to amend the Mandates
accordingly.
The League of Nations was dissolved in 1946. The U.N. had
been established during the previous year. There was, however, no formal
conveyance by the League to the U.N. of the rights and powers of the former in
relation to the mandated territories. At its final session in 1946 the League
Assembly adopted a resolution which recognised that "on the termination of
the League's existence, its functions with respect to the mandated territories
will come to an end," but noted that Chapters XI, XII and XIII of the
Charter embodied principles corresponding to those declared in Article 22 of
the Covenant. The
resolution also took note of the expressed intention of the Members of the League
then administering territories under Mandate to continue to administer them for
the well-being and development of the people concerned "until other
arrangements have been agreed between the United Nations and the respective
mandatory Powers." 1 The
United Kingdom informed the U.N. in 1946 of its willingness to conclude
Trusteeship Agreements for those territories which it administered under
Mandate, save in the case of Palestine whose future, Britain was even by then
obliged to say, was in a state of doubt.
(b) THE ROLE OF THE U.N. IN 1947
On 2nd April, 1947,
after two years of increasing tension in Palestine, the British Government gave
notice to the U.N. of its intention to place the Palestine question on the
agenda of the next regular session of the General Assembly, due to start in
September 1947, and stated that it would "ask the Assembly to make
recommendations under Article 102 of the Charter, concerning the future
government of Palestine." The British Government proposed that a special
session of the Assembly
'See Y.B.U.N., 1946-47, p.
575.
'Article 10 of the Charter provides as follows:
"The General Assembly may discuss any questions or any matters within the
scope of the present Charter or relating to the powers and functions of any
organs provided for in the present Charter, and, except as provided in Article
12, may make recommendations to the Members of the United Nations or to the
Security Council or to both on any such questions or matters."
14
should immediately be summoned with a view to constituting
and instructing a special committee to prepare for the consideration of the
question.
Although there was nothing in the
Charter which expressly conferred upon the Assembly the power to consider the
future of a mandated territory, the Assembly nonetheless accepted the
competence thus attributed to it by appointing the U.N. Special Committee on
Palestine (U.N.S.C.O.P.). In retrospect one is able to say that this acceptance
of competence was a proper thing to do. The reason for saying "in retrospect"
is that in 1947 there was no clear authority on the matter. l In 1950, however,
the International Court of Justice in an Advisory Opinion on the International Status of South- West
Africa expressed
the view that the status of a mandated territory could be altered only with the
consent of the United Nation S. 2
On this basis, the action of the
United Kingdom in referring the Palestine problem to the U.N. was clearly
correct. The United Kingdom was not entitled unilaterally either to terminate
the Mandate or to decide upon the political future of the territory. Only the
General Assembly could authorise the ending of the Mandate; and only the
Assembly could, initially at any rate, make proposals for the future government
of the country.
The
Committee (U.N.S.C.O.P.) appointed by the Assembly forthwith entered upon its
duties and eventually reported to the General Assembly in the autumn of 1947. On
29th November, 1947, as already stated, the Assembly adopted Resolution 181 (II)-the so-called
Partition Resolution. This called for the division of Palestine into two
States-one Jewish and one Arab, to be established within the boundaries laid
down in the Resolution. There was to be an economic union between the two
States. Jerusalem was to be internationalized.
(c) THE EFFECT OF THE PARTITION RESOLUTION
The
Jewish authorities forthwith accepted the Resolution. It did not give them all
they wanted-and in particular they did not favour the idea of an
internationalized Jerusalem. But they considered that it was better to have a
Jewish State in part of
'Although on 14th December, 1946, the General
Assembly of the U.N. had affirmed its competence in relation to any change in
the status of another mandated territory namely, South-West Africa. See
Resolution 65 (I).
2 I.C.J. Reports 1950, p. 128, at pp.
141-143. `
15
Palestine, even without Jerusalem, than to have no State
at all. This view, it must be recalled, however, was based upon the assumption
that the resolution would be accepted and implemented by the Arabs, that it
would form the basis for peace and order in Palestine, and that though
Jerusalem might be internationalized it would be an open city. This assumption
proved false. The Arabs rejected the resolution, which they considered to be
beyond the powers of the General Assembly and to constitute an infringement of
the right of the Arab people of Palestine to determine their own political
future.
While, of course, it is
unfortunate that the Arabs rejected the resolution, they were to some extent
correct in their incidental assertion that the General Assembly was not able by
resolution to dispose in a binding manner of the whole or any part of the
territory of Palestine. Palestine was not the property of the U.N. to give or
withhold as it pleased. The role of the U.N. was a restricted one. Its acquiescence in the termination by Britain of
its obligations as Mandatory was-for the reason given above-a legal necessity. Moreover,
the Assembly could, by putting forward a plan which the interested parties
might accept, provide the legal basis for the settlement of the future
government of the country. But resolutions of the General Assembly do not
normally create legal obligations for the members of the U.N. (even if Israel and the proposed
Arab State had been members at that time, which they were not); and the
Partition Resolution did not have a legislative character. The Assembly could
not by its resolution give the Jews and the Arabs in Palestine any rights which
either did not otherwise possess: nor, correspondingly, could it take away such
rights as they did possess.
The precise rights of the Jewish
and Arab inhabitants of Palestine at that time cannot easily be specified-and
it is questionable whether the legal position in 1947 is of more than marginal
relevance to the determination of the legal position today. But some reference
to the legal factors then prevailing may be helpful.
It is convenient to distinguish
between the position under "general" international law, that is,
under the law affecting all nations at that time; and the position in
"particular" international law, that is, by reference to those
special rules which might have some particular or exclusive bearing on the
situation.
16
On the whole, general
international law in 1947 was little concerned with the rights of communities
which had not acquired statehood. But even then it contained the principle of
self-determination-which in the following two decades has assumed great
significance in international affairs.
The principle of
self-determination is, however, one of indefinite and variable content.
Although acknowledged in Article I of the Charter of the U.N. as one of the
bases of the development of friendly relations among nations and although
applied in many cases as a solvent of existing political structures and a
justification for the establishment of new state units, no legal instrument
exists which lays down, for example, the size of the community which is to
determine its own future or the manner in which the act of self-determination
is to take place. Everybody believes in the concept; few are prepared to give
it a specific content unrelated to their subjective views of any particular
situation. "Self-determination" may readily be invoked for the
purpose of embarrassing another State; the concept is less welcome when applied
by others to one's own ethnically recognizable minorities.
The vagueness of the idea was even
greater in 1947 than it is now. Yet it was relied upon by the Arab States as a
justification for denying the validity of the U.N. action in Palestine. Their
contention was that the Arab inhabitants of Palestine should have been allowed
to determine their own future. Now this argument, though superficially not
unattractive, rests fundamentally upon the assumption that the concept could
be applied to Palestine only as an undivided territorial unit, and without
reference to the manifest fact that even by 1947 the country was clearly
separable into Jewish and Arab areas. However, that assumption is of doubtful
validity. As subsequent experience has shown, for example, in the cases of
Togoland and the Cameroons, the process of self-determination is applicable to
other than the full territorial unit that happens to bear the name of a single
country. French Togoland it will be recalled was divided on the basis of the
principle of self-determination between Ghana and Togo; the former German
Cameroons were divided first into French and British Mandated territories of
that name, and subsequently became respectively the independent republic of the
Cameroons and part of Northern Nigeria.
17
When this is borne in mind, it can
be seen that the decision of the U.N. to recommend the partition of Palestine,
far from being a denial of the right of self-determination, was in fact a
direct application of the principle. The
Jews were not to determine the future of the Arabs, nor were the Arabs to
determine the future of the Jews. Each
group was to determine its own future. This
the Jews subsequently did. The Arabs
of Palestine did not-whether of their own volition must remain a matter of
doubt. If the Arab States neighbouring Palestine had not insisted that the
problem was an Arab problem rather than a Palestinian problem, the history of
Arab life in Palestine over the last score of years would have been a much
happier one.'
So much then for the application
of the notion of self-determination, as the only relevant principle of
"general" international law. It is now necessary to turn to the
"particular" international law applicable to the Palestine situation. In this case the governing
instrument is the Mandate for Palestine granted to the United Kingdom in 1922.
This is the instrument by which the Principal Allied and Associated Powers-to
whom Turkey's rights over Palestine had passed 2-indicated the
manner in which and the objects for which the country was to be governed. Two
paragraphs of the Preamble to the Mandate are particularly important as
indicating the respective rights of the interested parties:
"Whereas the Principal Allied
Powers have also agreed that the Mandatory should be responsible for putting
into effect the declaration originally made on November 2nd, 1917 by the
Government of His Britannic Majesty, and adopted by the said Powers in favour
of the establishment in Palestine of a national home for the Jewish people, it
being clearly understood that nothing should be done which might prejudice the
civil and religious rights of existing non-Jewish communities in Palestine, or
the rights and political status enjoyed by Jews in any other country; and
"Whereas recognition has thereby been given to the historical
connection of the Jewish people with Palestine and to the grounds for
reconstituting their national home in that country . . ."
'Certainly nothing in the concept of
self-determination could in 1948 have justified the Jordanian occupation of the
cis-Jordanian parts of Palestine or the Egyptian occupation of the Gaza Strip.
=See above, p. 13.
18
Here, then, we have in an
effective legal instrument, binding alike upon the Principal Allied and
Associated Powers and upon the Members of the League, an express acknowledgment
that the policy of "reconstituting" a Jewish national home was to be
implemented.' True, the commitment was subject to the important condition that
"nothing should be done which might prejudice the civil and religious
rights of existing non-Jewish communities in Palestine." But the basic commitment was clear.
And in legal terms the General
Assembly of the U.N. could not add to or subtract from this commitment by the
direct operation of any Assembly resolution. This is not to say that the
Partition Resolution was entirely without legal significance. Apart (as already
indicated) from authorising the United Kingdom to end the Mandate, it also
represented an indication by the General Assembly of the general direction in
which it thought it proper that the political future of the country should
move. While the resolution was not a title-deed to the territory of a new
Jewish State (or for that matter to a new Arab State, if the one contemplated
in the Resolution had been created) it represented a mark of international
approbation of the creation of the new State which, while not legally
essential, is not legally irrelevant. 2 It also represents
another-not strictly legal reason for questioning the propriety of the
invasion of Palestine by Egyptian, Iraqi, Jordanian, Lebanese and Syrian forces
in 1948. The legal reasons will be considered in the next chapter. But it was
manifestly no part of the General Assembly's intentions for Palestine that it
should in greater or lesser degree be carved up by its Arab neighbours.
However, the coming into existence
of Israel does not depend legally upon the Resolution. The right of a State to
exist flows from its factual existence-especially when that existence is prolonged,
shows every sign of continuance and is recognised by the generality of nations.
1 It may be recalled that on 16th September, 1922,
the British Government made a declaration, subsequently confirmed by the League
Council, modifying the Palestine Mandate so as to exclude Trans-Jordan from the
operation of the obligation to establish a Jewish National Home.
2 It is interesting to note that the Declaration of
the Establishment of the State of Israel described the basis for the
establishment of the State of Israel in the following terms: " . . . By
virtue of our natural and historic right and on the strength of the Resolution
of the United Nations General Assembly . . ." Thus the Resolution was
relied upon not as the legal basis for the creation of the State, but was
mentioned primarily as a relevant historical element. `
19
Two consequences follow from
this assessment of the significance of the Partition Resolution of 1947.
First, the proposal for the
internationalization of Jerusalem never assumed the dimensions of a legally
binding obligation. The proposal represented the U.N.'s assessment of one
element in the creation of a viable future for a divided Palestine. The parties
were free to accept or reject it. The Jews accepted it. The Arabs rejected it.
The U.N.-as will be seen-eventually also acquiesced in the idea that its
proposal was not to be implemented.
The Partition Resolution
still stands, of course, as an indication of what the U.N. wanted in 1947.1
Some Members of the U.N. have invoked the resolution as a justification for
refusing to accept the legitimacy of Israeli sovereignty (in the period prior
to June 1967) over the New City of Jerusalem .2 But reliance upon
the Resolution as a justification for such non-recognition is pseudo-legal. The
Resolution cannot be regarded as justifying non-recognition of Israeli
sovereignty over the New City; nor, as will be presently suggested, for denying
the validity of the Israeli re-unification of the administration of the whole
City. Moreover there are quite a number of Members of the U.N. who have been
content to accept Jerusalem as the capital of Israel and to deal with the
Israeli Government on that basis and without reservation. 3
The second
consequence of the limited legal significance of the Partition Resolution is
that the boundaries therein laid down for the territories of the proposed
Jewish and Arab States and for the internationalized City of Jerusalem have no
permanent legal force. The
position would, of course, have been otherwise
'It
may even still represent the "internal" law of the U.N., in the sense
that the Secretariat as an organ of the U.N. may be bound to make its conduct
conform to the theory therein reflected that the area of the internationalized
Jerusalem was not to form part of the Jewish or Arab State. Yet to endow the
Resolution with even this degree of force at the present time is to attribute
to Secretariat opinion an inflexibility which is not wholly appropriate to its
functions, nor entirely consistent with the constructive vitality which
generally infuses its attitudes.
2
The following States have qualified their recognition of Israel by a reference
to the U.N. resolutions on Jerusalem: Australia, France, New Zealand, Turkey,
South Africa and the United Kingdom.
3The following States either have embassies or are
diplomatically represented in Jerusalem: Bolivia, Central African Republic,
Chile, Colombia, Congo (Brazzaville), Congo (Democratic Republic), Costa Rica,
Dahomey, Dominican Republic, Ecuador, Gabon, Greece, Guatemala, Ivory Coast,
Madagascar, Netherlands, Niger, Panama, Upper Volta, Uruguay and Venezuela.
20
had the Resolution been fully adopted by the
interested parties as the de facto
basis for their co-existence. But at the moment when the Resolution failed to
be implemented, its description of specific boundaries ceased to be fully
relevant, though it would not be appropriate to say that the proposed
boundaries then became completely irrelevant. As a description of a particular
boundary they became worthless; but as the reflection of the idea that there
should be a boundary between a Jewish and an Arab State somewhere in Palestine
the proposal still retained some value-albeit a historical rather than a legal
one.
(d) DEVELOPMENTS
SUBSEQUENT TO THE PARTITION RESOLUTION
This assessment of
the essentially "historical" and nonlegal character of the Partition
Resolution is supported by consideration of two additional factors.
(i)
THE
REJECTION BY THE ARABS OF THE POLITICAL FRAME WORK FOR INTERNATIONALIZATION
In the first place, the Arab States not
only rejected the Resolution; they actively sought to overthrow it. Contemporaneously
with the British withdrawal from Palestine the country was invaded by Egyptian,
Iraqi, Jordanian, Lebanese and Syrian forces. Contemporary evidence of the fact
of invasion is overwhelming, though the Arab States sought to warrant their
action by invoking the need to protect the Arabs of Palestine. On 15th May,
1948, the Government of Egypt sent to the President of the Security Council a
cablegram declaring "now that the British Mandate in Palestine has ended
... Egyptian armed forces have started to enter Palestine . . ." The
justification advanced for this action was that it was "to establish
security and order in place of chaos and disorder."1 On 16th May, the King of Jordan
cabled the Secretary-General of the U.N.: "We were compelled to enter
Palestine to protect unarmed Arabs against massacres . . ." 2 On 21st May the Saudi
Arabian Government, in a reply to a Security Council questionnaire, stated that
"Saudi Arabian forces are now operating in the south of Palestine under
Arab Command ... Saudi Arabia has
1S.C.O.R., 3rd Yr., 292nd Mtg., p. 3.
2 S/748, S.C.O.R., 3rd Yr., Supp. for April,
1948, p. 90.
21
no other object in view except to put an end to this state
of anarchy and to restore peace, order and security in Palestine."'
The view of the Soviet
bloc upon these actions is worth noting (as impartially summarized in the Year Book of the United Nations) :
"On the question of the withdrawal of foreign troops, they asserted
that the presence of foreign troops and military personnel which had invaded
the country was responsible for the present disorders and the sufferings of the
population. Moreover, the presence of foreign troops constituted an obstacle to
the reestablishment of peace, the objective of the General Assembly. Foreign
intervention was clearly manifest on the Arab side, for there was a British
General Glubb Pasha and British officers commanding Trans-Jordan troops. These
troops, as well as those of Egypt, Syria and Lebanon had invaded the territory
earmarked for the Arab State of Palestine. This
State had not been established, as provided for in the 1947 resolution. On the other hand, the State of Israel had
been set up within the territorial limits established by the General
Assembly Resolution. The withdrawal of troops was a necessary condition for the
establishment of peace and for any settlement of the Palestine question in
accordance with the 1947 resolution."2
The consequence of the
Arab rejection of the Partition proposal and of the forcible entry of the Arab
States into Palestine was that the implementation of the Partition Resolution
was thereby effectively frustrated in three out of its four major elements. No
Arab State was established within Palestine; there could thus be no economic
union of the Arab and Jewish States. Further, the physical attack by the Arab
forces upon the Jews in Jerusalem, and indeed upon the Jewish State as such,
left the Israeli forces with no option but to respond in kind and maintain such
hold as they could upon the areas then in Jewish possession, to the point-by
way of defensive rationalisation of their positions of moving in places beyond
the lines laid down in the Partition Resolution.
1S/772, ibid., p.
96.
2 Y.B.U.N., 1948-9, p. 171. Again, in the General
Assembly on 9th December, 1949, the U.S.S.R. delegate
said: "Even before the end of the Mandate, when Palestine was still under
the official control of the United Kingdom, detachments of the Arab Legion of
Transjordan commanded by British nationals had invaded Palestine. Those
detachments had occupied strategic points and military bases evacuated by
British troops . . ." (G.A.O.R.,
275th Plenary Mtg., para. 15).
22
(ii) THE GRADUAL EXHAUSTION
OF U.N. INTEREST IN INTER- NATIONALIZATION
This de facto abandonment of the Partition
Resolution by the Parties directly concerned came in time to be matched by a
similar, though not fully articulated, attitude on the part of the U.N.
Although the General Assembly, quite understandably, began by treating the
Resolution as a valid and effective instrument which it should seek to
implement as fully as possible, in due course it gradually abandoned this
position. Thus for some five years after the Resolution, the Assembly pursued
further the question of the internationalization of Jerusalem.' After 1952, however,
no more was heard in the General Assembly and the Security Council about
internationalization, although the Secretariat and various individual Members
of the U.N. continued on occasion to pay lip service to the idea.
Moreover, when in 1967, in the aftermath
of the Six Day War, the General Assembly came to concern itself with the
Jerusalem problem, it is significant that it made no mention of the idea of
internationalization in the relevant resolutions. Indeed, the resolutions appear to proceed on the basis
that the General Assembly accepted the immediately pre-existing division of the
City into its Israeli and Jordanian-held parts.
At this remove of time
it may be helpful to recall in some detail the gradual decline in the momentum
with which the U.N. pushed the idea of internationalization-until eventually it
was replaced by a realistic assessment of the impracticality of the concept.
And in so doing, we may note the emergence of the idea of
"functional"-as opposed to "territorial"-internationalisation:
an idea which involves instead of the direct international government of
Jerusalem simply a demonstration of international concern for freedom of access
to and worship at the Holy Places. We may also observe the divisions and shifts
in Arab policy: the division between Jordan and her neighbours; and the shift
on the part of the Arab States other than Jordan from opposition to territorial
internationalization to acceptance of it, as they gradually realised that on no
other basis could they serve their political objective of ousting Israel
'For
a helpful indication of the official Israeli attitude to these developments see
Israel and the U.N., pp. 128-140.
23
from Jerusalem-a motive which was only coincidentally
associated with concern for the Holy Places.
Here
then is the narrative of the manner in which the U.N. approached the
internationalization of Jerusalem between 1948 and 1952.
1948: THE
TRUSTEESHIP COUNCIL
Within five days of the adoption
of the Partition Resolution, the Trusteeship Council appointed a Working Party
on Jerusalem, l whose Report 2 was considered by the Council during
the second part of its second session in February-March 1948. In these debates,
the Iraqi delegate took the position, on behalf of all the Arab States, that
the proposal for an international trusteeship for Jerusalem was a breach of the
Charter and violated the inalienable rights of the people concerned. They were
not prepared to enter into details or to participate in the discussion of the
plan. "The Council would, moreover, be held responsible for an action
charged with dangerous responsibilities (sic) to which the Iraqi Government
declared itself in no way bound, and in regard to which it reserved complete
freedom of action." 3
In fact, the
Trusteeship Council did not proceed formally to adopt the draft Statute which
it had been elaborating, primarily because by the time it was ready to do so
(on 20th April, 1948), the General Assembly was already undertaking, at its
second special session, a further consideration of the future government of
Palestine. The Council instead decided to refer the question of the Statute to
the Assembly.4 In September 1948 the U.N. Mediator on Palestine made
certain proposals for the future of the territory which included a suggestion
that the City of Jerusalem and the Holy Places be placed under effective U.N.
control. s
1948: THE
GENERAL ASSEMBLY
The General Assembly did not at
its 1948 session consider the draft Statute for Jerusalem which had been
referred to it
'T.C.O.R., 2nd Sess. lst Part.,
p. 140, 2nd Dec. 1947.
2 T/122.
3T.C.O.R.,
2nd Sess., 2nd Part, 19th mtg., p. 5, 18th Feb. 1948.
4 Trusteeship Council Resolution
34 (II).
5 See Progress Report of 16th
September, 1948, A/648, as reported in Y.B.U.N, 1948-9,
p. 167.
24
by
the Trusteeship Council. Instead, on llth December, 1948, the Assembly adopted
a resolution in which, after establishing a Conciliation Commission, it
resolved that the Holy Places should be protected and free access to them
assured; and that "the Jerusalem area . . should be accorded special and
separate treatment from the rest of Palestine and should be placed under
effective U.N. control." r The
resolution also requested the Security Council to take further steps to ensure
the demilitarization of Jerusalem at the earliest possible date' and
instructed the Conciliation Commission to present to the next session of the
Assembly "proposals for a permanent international regime for the Jerusalem
area which will provide for the maximum local autonomy for distinctive groups
consistent with the special international status of the Jerusalem area." 3
1949: THE ISRAEL-JORDAN ARMISTICE AGREEMENT
Yet
even before the matter was further considered by U.N. organs, Israel and Jordan
had signed, on 3rd April, 1949, an Armistice Agreement in which the de facto division of Jerusalem -and its
consequent non-internationalization-was crystallized.'
The
Agreement provided in particular that a Special Committee of two
representatives of each party should be established immediately to formulate
arrangements on various matters including, specifically, "free access to
the Holy Places and cultural institutions and the use of the cemetery on the
Mount of Olives." 5
'Resolution 199 (III). Text in Y.B.U.N., 1948-49, p. 174.
'When, in October 1949, Egypt raised in the Security Council the question of the demilitarization of Jerusalem pursuant to the request made in the Assembly's resolution of 11 th December, 1948, the President of the Council suggested postponement of the item pending its consideration in the Assembly. (Y.B.UN., 1948-49, pp. 189-190).
'Ibid.
°U.N.T.S., vol. 42, p. 304.
SSee Article VIII (2). In November 1950 Israel complained to the Security Council that Jordan had violated the Israel-Jordan Armistice Agreement through inter alia, non-implementation of Article VIII relating to Jerusalem, thereby preventing access to Holy Places, impairing the water supply of the city of Jerusalem, preventing the normal functioning of the Hebrew University and the Hadassah Medical Centre and preventing normal traffic on vital roads. On 17th November, 1950, the Security Council adopted a resolution which read in part: "The Security Council notes that with regard to Article 8 of the Israeli-Jordan Armistice Agreement the Special Committee has been formed and has convened and hopes that it will proceed expeditiously to carry out the functions contemplated in paragraphs 2 and 3 of that Article." (S/1907. See Y.B.U.N., 1950, p. 320).
25
1949:
THE PALESTINE CONCILIATION COMMISSION
Nevertheless, the Conciliation Commission, pursuant to the
instruction given to it by the Assembly, began in March 1949 to prepare
proposals for a permanent international regime for the Jerusalem area. It established a Special Committee
on Jerusalem and the Holy Places which in April entered into discussions with
the Israeli and the Arab Governments. During
these conversations, the Arab delegation indicated general acceptance of the
principle of an international regime for the Jerusalem area on condition that
the U.N. should be in a position to offer the necessary guarantees regarding
the permanence and stability of such a regime. The Israeli Government on the
other hand declared its intention to request the General Assembly to revise
part of its resolution of llth December, 1948. While
the Israeli Government accepted without reservation an international regime
for, or international control of, the Holy Places in the City of Jerusalem, it
could not accept the establishment of an international regime for the City. l
By September 1949 the Commission
had prepared a draft text of an instrument establishing a permanent
international regime for the Jerusalem area. 2In it the Commission
proposed:
1. That the Jerusalem area should
be permanently demilitarized and neutralized;
2. That the area should be divided
into two zones, one Arab and one Israeli, to be administered by the respective
authorities; and
3. That four principal organs,
namely a U.N. Commissioner, a General Council, an International Tribunal and a
Mixed Tribunal, should be set up to exercise certain specific powers concerning
mainly the protection of and free access to the Holy Places in the Jerusalem
area, the protection of human rights, the co-ordination of the public services
of common interest and the solution of the various legal conflicts resulting
from the existence of two separate zones.
'Second Progress Report of the Palestine Conciliation Commission A/838, as summarised in Y.B.U.N., 1948-49, p. 198. See also Israel and the U.N., p. 132. 'Further Progress Report (A/992) and Draft Text (A/973 and Add. 1), together with a draft declaration (A/1113); summarised in Y.B.U.N., 1948-49, pp. 198-199.
6
1949:
AD HOC POLITICAL COMMITTEE OF THE GENERAL ASSEMBLY
This proposal, and the documents
associated with it, were then considered by the Ad Hoc Committee of the General
Assembly in late November and early December 1949.1 During
these debates the Government of Israel proposed that the
U.N. should sign an agreement with Israel relating to the supervision and
protection of the Holy Places.' A sub-committee was established to study and
report on the various proposals regarding Jerusalem. This sub-committee
proposed, and the Ad Hoc Political Committee eventually adopted, a resolution
which called upon the General Assembly, inter alia, to restate its intention that
Jerusalem should be placed under a permanent international regime, which should
envisage appropriate guarantees for the protection of the Holy Places. 3 During
the discussion prior to the adoption of this resolution, the Jordanian
delegate stated that internationalization would serve no useful purpose since
the Holy Places under the control of his Government were safe and there was no
need for a special regime .4
1949:
PLENARY SESSION OF THE GENERAL ASSEMBLY
The proposal made by the Ad Hoc Political Committee was
discussed in the plenary meeting of the General Assembly on 9th December, 1949.
Among those who supported the proposals of the Ad Hoc Political Committee were
the representatives of Argentina, Australia, Brazil, Cuba, Egypt, El Salvador,
Greece, Haiti, Iraq, Lebanon, Pakistan, Peru, Syria and the U.S.S.R., mainly on
the grounds that implementation of the resolution would ensure peace and
security in Jerusalem and would meet the interests of both the population of
the city of Jerusalem and all religious groups. The resolution was opposed by
the representatives of Canada, Denmark, Guatemala, Israel, the Netherlands,
Norway, Sweden, the Union of South Africa, the United Kingdom, the United
States and Venezuela, primarily on the ground that its adoption might
jeopardise the truce in Jerusalem, complicate the finances of the U.N., and be
impossible
' Y.B. U.N., 1948-49, p. 190 et seq.
2 Draft
attached to draft resolution A/AC.31/L.42. For text, see below, Appendix
1,
p. 76
3 'Y.B.U.N.,
1948-49, p. 191.
4 Ibid.,
p. 192.
27
to implement.' Instead
a joint Netherlands-Swedish draft z, supported by Canada, Chile, Iceland and
Norway, proposed the internationalization of the Holy Places without disturbing
the existing political situation in Jerusalem.
The Assembly then adopted, on 9th
December, 1949, Resolution 303/IV 3 in which it restated its
intention that Jerusalem should be placed under a permanent international
regime, which should envisage appropriate guarantees for the protection of the
Holy Places, both within and outside Jerusalem. The Trusteeship Council was
requested to complete the preparation of the Statute of Jerusalem at its next
session.
1949-50: THE TRUSTEESHIP COUNCIL
For the purpose of carrying out
the task thus re-assigned to it, the Trusteeship Council held a special session
from 8th to 20th December, 1949. The President of the Council was asked to
prepare a working paper on the Statute in time for the next session of the
Council on l9th January, 1950. The Council also adopted a resolution 4 in which it
expressed the opinion that the Government of Israel, in removing to Jerusalem
certain of its ministries and central departments, was likely to render more
difficult the implementation of the Statute.
When the Council met again in
January 1950 it had before it the President's proposals for the establishment
of Jerusalem as a corpus separatum to
be placed under a permanent international regime. The territory was to be an
economic free zone, but was to be divided into three parts-an Israeli zone, a
Jordanian zone and an international city, which would include all the Holy
Places covered by the Status Quo of 1757.5
During the debate, the
representatives of Egypt, Iraq and Syria objected to the division of the City
into three parts. Jordan stated that it was not prepared to discuss any plan
for internationalization. Israel declared that, while opposed to the
internationalization of the Jerusalem area, as proposed in the Statute, it was
willing to accept the principle of direct U.N. responsibility for the Holy
Places.
1 Ibid., p. 193.
2 A/1227.
3 The voting was 38 to 14, with 7 abstentions. For text,
see Y.B. U.N., 1948-49,
p. 196.
4 T/427.
5 Y.B.U.N., 1950, p. 335. See also p. 65
below.
28
The Council also heard the views of various religious
groups. The representative of the Patriarch of Jerusalem stated that the
following, among other conditions, should be guaranteed: (i)
The Status Quo of 1757 should be kept inviolate; (ii) the
character of the monastic foundations belonging to each Church should be
preserved; and (iii) the Holy Places and Shrines, as well as the property
attached to them, should be exempt from all taxation.
The representative of the American
Christian Palestine Committee expressed the view that the internationalization
of Jerusalem was impossible to implement, in view of the opposition of the
inhabitants of that area to any such plan. A
U.N. Commission should be established which would have no territorial
sovereignty but only the duty of protecting the Holy Places vis-a-vis the
Governments concerned.
The representative of the Armenian
Church welcomed the internationalization of Jerusalem but made certain
proposals for the establishment of a legislature and the creation of a judicial
organ charged with the special task of regulating differences between the
religious groups and the civil authorities.
Finally, the representative of the
Commission of Churches on International Affairs suggested three conditions for
an international regime for Jerusalem: (i) the preservation of human rights
and fundamental freedoms, particularly of religious liberty; (ii) recognition
that the protection of and access to Holy Places was an international responsibility;
and (iii) the return to owners of all church-owned and mission-owned property
in Palestine which was occupied by either Arabs or Jews.
Eventually on 4th April, 1950, the
Trusteeship Council approved a draft Statute for Jerusalem under which the City
was to be constituted a corpus separatum, but not divided into three parts. On
14th June, 1950, the Council decided to submit to the General Assembly its
special report 1 containing the Statute.
1950: AD HOC POLITICAL COMMITTEE OF THE GENERAL ASSEMBLY
This report was considered by the Ad Hoc Political Committee
of the General Assembly between 7th and 14th December, 1950.
1
A/1286.
29
During the debates in the Ad Hoc Political Committee
both Sweden and Belgium presented draft resolutions which, in effect, dropped
the idea of internationalization of the City. Sweden proposed simply that
Israel and Jordan should give certain pledges to respect human rights and give
free access to the Holy Places, while allowing the U.N. to supervise through a
Commissioner the protection of and access to the Holy Places. But jurisdiction
and control over each part of the Jerusalem area was to be exercised by the
States concerned.' The Belgian proposal was that there should be further study
of the conditions of a settlement capable of ensuring the effective protection,
under U.N. supervision, of the Holy Places 2.
During the debate, the Jordanian representative while
repeating his objection to the territorial internationalization of the City,
did not close the door to the functional internationalization proposed by
Sweden. However, he said, the Swedish draft resolution tended in certain
respects to infringe the sovereignty of Jordan and he was therefore unable to
accept it as it stood.
Other Arab and Moslem States opposed the Swedish proposal
on the grounds that it would fail to resolve the basic issue which was how
international control could harmonise the two
opposing
nationalisms which dominated the city, and that it was inconsistent with the
resolution adopted by the General Assembly. They felt that full territorial
internationalization of the City was the best solution.
The representative of Israel supported the Swedish
proposal and stated that Israel would be prepared to co-operate with a U.N.
Commissioner.
The Swedish proposal received support from, amongst
others, Australia, Denmark, Guatemala, the Netherlands, New Zealand, Turkey,
South Africa, the United Kingdom, the U.S.A., the
Uruguay
and Yugoslavia.3 The Belgian draft was supported by Brazil, Chile,
China, El Salvador, France, Greece and the Philippines, among others.
The Soviet delegate stated that although the
resolutions of 1947 and 1949 had provided for the creation of a permanent
L
A/AC.38/L.63. For text, see
Appendix II below, p.
80.
2 A/AC.38/L.71.
3
For the text of an amendment proposed by the United Kingdom, see Appendix III
below, p. 84.
30
international
regime, it now appeared that the solution was acceptable to neither the Arab
nor the Jewish inhabitants of Jerusalem. Accordingly, his Government could not
continue to support those resolutions. As both drafts now before the Committee
were unsatisfactory, the U.S.S.R. would abstain from voting on either of them.
l
The Committee then voted first on the Belgian draft.
As this was adopted by 30 votes to 18 with 11 abstentions, the Committee
decided not to vote on the Swedish draft.
1950:
PLENARY SESSION OF THE GENERAL ASSEMBLY
But when the report of the Ad Hoc Committee containing
the resolution recommended by it was voted upon by the General Assembly on 15th
December, 1950, without a debate, the voting
in
favour of the draft was 30 in favour, 18 against and 9 abstentions. As a
two-thirds majority is required for the adoption in the General Assembly of a
resolution on important matters, the draft resolution was not adopted. The
consequence was that no further action on the Jerusalem question was taken in
the U.N, between December 1950 and December 1952.
1952
(January): THE GENERAL ASSEMBLY
Although the question of Palestine was discussed in
the Ad Hoc Political Committee and in the Plenary Meetings of the General
Assembly in January 1952 the question of Jerusalem was not specifically raised.
Nevertheless on 26th January, 1952, the Assembly adopted Resolution 512 (VI)2
in which, after recalling its earlier resolutions on the Palestine
problem and stating that it had examined the progress of the Palestine
Conciliation Commission, it noted that the Commission had been unable to fulfil
its mandate and stated that it considered "that the governments concerned
have the primary responsibility for reaching a settlement of their outstanding
differences" in conformity with the Assembly's resolutions. While this
resolution does not involve any explicit abandonment of the Assembly's views
on internationalization the fact that it is not expressly mentioned is a mark
of the diminishing importance which the Assembly was coming to attach to that
solution.
'On
17th April, 1950, the Soviet Union had informed the Secretary-General of the
U.N. that it was withdrawing its support of G.A. Resolution 303 (IV) (See
G.A.O.R., 5th Sess., Supp. No. 1, p. 5).
'See
Y.B.U.N., 1951, p, 308.
31
1952 (December): THE GENERAL ASSEMBLY
In 1952 the General Assembly
decided quite explicitly not to re-assert the principle of
internationalization. The Arab States had inscribed on the General Assembly
agenda an item entitled "The Conciliation Commission for Palestine and its
work in the light of the resolutions of U.N." 1 In their statements
the Arab States drew attention to the fact that the Commission had been unable
to implement the Assembly's decisions regarding the internationalization of
Jerusalem and its Holy Places. On 11th December, 1952, the Ad Hoc Political Committee
adopted a resolution in which it urged "the Governments concerned to enter
at an early date ... into direct negotiations for the establishment of ... a
settlement, bearing in mind the resolutions as well as the principal objectives
of the U.N. on the Palestine question, including the religious interests of
third parties.” 2
When this resolution was
considered in the plenary session of the Assembly, the Philippines
representative proposed two amendments to the clause just quoted, of which one
was the addition at the end, after the words "interests of third
parties," the words "and, in particular, the principle of the internationalization
of Jerusalem." This amendment was not adopted because it failed, by a
quite significant figure, to achieve the required two-thirds majority. The
voting was 28 in favour, 20 against and 12 abstentions.3 The Ad Hoc
Political Committee's
' See Y.B.U.N., 1952, p. 299 et seq.
2 Ibid., p. 252.
3The voting was as follows: In favour: Afghanistan, Argentina, Belgium, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Egypt, El Salvador, Ethiopia, Haiti, India, Indonesia, Iran, Iraq, Lebanon, Pakistan, Paraguay, Peru, Philippines, Saudi Arabia, Syria, Thailand, Venezuela, Yemen. Against: Byelorussian S.S.R., Czechoslovakia, Denmark, Ecuador, Iceland, Israel, Netherlands, New Zealand, Norway, Panama, Poland, Sweden, Turkey, Ukrainian S.S.R., Union of South Africa, U.S.S.R., United Kingdom, United States, Uruguay, Yugoslavia. Abstaining: Australia, Burma, Canada, China, France, Greece, Guatemala, Honduras, Liberia, Luxembourg, Mexico, Nicaragua.
The following table of voting on "territorial internationalization" is taken from Israel and the U.N., p. 138:
In Absten-
Year Favour Against tion.s
Result
1947 33 13 10 Resolution 181 (ii)
1948 35 15 8 “„ 194(III)
1949 38 14 7 “ 303 (IV)
1950 30 18 9 No resolution for
1951 no discussion lack of two-thirds
1952 28 20 12 majority
1953 no discussion “ “
32
draft resolution was itself then not adopted by a vote of
24 in favour to 21 against with 15 abstentions.
This meant that the Assembly
adopted no resolution on Palestine at its seventh session, and Resolution 512
(IV) remained in force.
1952-1967: U.N.
INACTION
From 1952 to 1967 the question of
Jerusalem was conspicuous only by its absence from discussion in the U.N.
During those fifteen years, the matter was never referred to in the General
Assembly. l Moreover, on only three occasions has the subject been mentioned in
the Security Council: in 1957, when there was some discussion of the status of
certain areas lying in the areas between the Israeli and Jordanian held parts
of Jerusalem; in 1958, when there was a brief reference to the question of
Mount Scopus; and in 1965, when Jordan filed a complaint about a proposed
Israeli Independence Day Parade to be held in Jerusalem, but did not request a
meeting of the Security Council.
For all practical purposes, the
idea of internationalizing Jerusalem was forgotten. Moreover, the members of
the U.N. showed no concern whatsoever about the protection of the Holy Places.
They were content to accept-and for fifteen years accepted-the de facto
unilateral control of Israel and Jordan over the Holy Places within their
respective jurisdictions. 2
1967: THE GENERAL
ASSEMBLY RESOLUTIONS
Then, early in June 1967, renewed
fighting broke out between Israel and her neighbours. Faced by the closure of
the Straits of Tiran, the prospect of a renewed blockade of Eilath and the
manifest threat of the massive use of force by Egypt, Israel was compelled to
adopt vigorous defensive measures. Egyptian forces were driven out of the Gaza
Strip and, indeed, out of the whole of the Sinai Peninsula. Jordan failed to restrain itself and
after joining on 5th June in the general attack upon Israel was driven
'The Report of the Conciliation
Commission for the period covering 1953 referred to the fact that protests by
the Arab States had been transmitted to it regarding the transfer of Israeli
Ministries to Jerusalem. The Commission stated that it adhered to the position
on this topic which it had taken in 1949. (Y.B.U.N., 1953, p. 214).
2It may be noted that of the 30 Holy Places listed by the U.N. in 1949 only two fell within the part of Jerusalem held by Israel prior to the events of June 1967. The rest were under Jordanian control.
33
not only out of Jerusalem but also out of all possessions
on the west bank of the Jordan River.
Israel's opponents in the U.N.
reacted to those events in two ways. First, they sought to secure the
condemnation of Israel as an aggressor. In
this they failed miserably.' Secondly,
they sought to attack the validity of Israeli measures
affecting the government of the City of Jerusalem. In this they achieved a
measure of success-albeit merely verbal.
On 4th July, 1967, the General
Assembly adopted a resolution proposed by Pakistan of which the most important
provisions read as follows:
"The General
Assembly,
Deeply concerned at the situation prevailing in Jerusalem as a result of the measures
taken by Israel to change the status of the City,
1. Considers that these measures are invalid;
2. Calls upon Israel to rescind all measures already taken and to desist forthwith from
taking any action which would alter the status of ~ Jerusalem ... " 2
And on 14th July, 1967, the General Assembly adopted a
further resolution on the same subject in which it deplored Israel's failure to
implement the resolution of 4th July, and reiterated its call to Israel to
rescind all measures already taken and to desist forthwith from taking any
action which would alter the status of Jerusalem.
The question which we must ask is
whether these resolutions reflected any intention on the part of the General
Assembly to resurrect the idea of the territorial internationalization of
Jerusalem and, in particular, whether "the status of
the City" about which the first resolution stated concern was the status
of Jerusalem as a city chosen by the General Assembly in 1947 for
internationalization. To both these questions a negative answer may properly be
given.
It may be noted that the first
resolution was adopted with virtually no discussion of its content. In the
general debate which preceded its introduction only four States-Spain, Brazil,
Ivory
Coast and Peru-had referred to the internationalization of
Jerusalem; the rest had discussed the Middle East crisis
'See above, p. 11, n. 1.
2Resolution 2253 (ES-V). The voting was 99 in favour, none against and 20 abstentions.
34
in more general terms or had been concerned to assert in a
variety of ways the concept that a State should not be permitted to acquire
territory by force.' The voting on the resolution was immediately preceded by
the rejection of the Soviet and Albanian draft resolutions seeking condemnation
of Israel as an aggressor; and the resolution clearly represented the maximum
which the General Assembly was prepared to accept at the time. Nor was the
content of the second resolution any more fully scrutinised; and no attempt was
made to read into it a reassertion of the idea of internationalization.
Furthermore, the language used in
the resolutions is quite incompatible with any demonstration of concern for the
idea of internationalization. It should be recalled in this connection that the
measures to which the resolution was directed were measures of administrative
re-unification of the City. To declare them invalid and to call upon Israel to
rescind the measures already taken was, in effect, to demand the restoration
of a status which involved a claim by Jordan to control over the Old City of
Jerusalem which was completely irreconcilable with the idea of
internationalization.
Thus, it may be said that the
resolution goes even further than a non-assertion of the idea of
internationalization. For, in laying emphasis without qualification upon the
restoration of
the status of the City to the position prior to the
fighting, the Resolution appears to concede the acceptability of the previous
occupation of each of the two parts of the City by Israel and Jordan
respectively.
1968: THE SECURITY COUNCIL RESOLUTION
Finally, reference should be made
to the adoption by the Security Council on 27th April, 1968, of a resolution
calling upon Israel not to hold a military parade in the part of Jerusalem formerly
held by Jordan and on 2nd May, 1968, of a resolution deeply deploring the
holding of the parade in disregard of the earlier resolution. Neither of those
resolutions-either in their terms or by reason of the debates preceding their
adoption can be regarded as indicating any revival of a U.N. interest in the
territorial internationalization of Jerusalem. The basis of the Security
Council's attitude as reflected in both resolutions was
'The validity of the application of this concept to the Israeli actions will be considered in the next chapter. See below, p. 51.
35
its concern with the maintenance of peace and security and
its consequential fear that the parade would aggravate tensions in the area and
have an adverse effect on a peaceful settlement of problems in the area.'
(e) CONCLUSIONS
At the risk of labouring the
obvious, the principal conclusions to be drawn from this close survey of what
has actually happened in the U.N. in relation to the internationalization of
Jerusalem are the following:
(i) During the critical period of the changeover of power in
Palestine from British to Israeli and Arab hands, the U.N. did nothing
effectively to implement the idea of the internationalization of Jerusalem.
(ii) In the five years 1948 to
1952 inclusive, the U.N. sought to develop the concept as a theoretical
exercise in the face of a gradual realization that it was acceptable neither to
Israel nor to Jordan and could never be enforced.
Eventually the idea was allowed quietly to drop.
(iii) In the meantime, both Israel and Jordan demonstrated that
each was capable of ensuring the security of the Holy Places and of maintaining
access to and free worship at them-with the exception, on the part of Jordan,
that Jews were not allowed access to Jewish Holy Places in the area of
Jordanian control.
(iv) The U.N. by its unconcern with the idea of territorial
internationalization, as demonstrated from 1952 to the present date,
effectively acquiesced in the demise of the concept. The events of 1967 and
1968 have not led to its revival.
(v) Nonetheless, there began to
emerge, as long ago as 1950, the idea of "functional"
internationalization of the Holy Places in contradistinction to the
"territorial" internationalization of Jerusalem. This means that
there should be no element of international government of the City, but only a
measure of international interest in and concern with the Holy Places. This
idea has been propounded by Israel and has been said to be acceptable to her.
Jordan has not subscribed to it. The various ways in which it may be
implemented are explored in Chapter IV below.
'A
later Security Council resolution of 21st May, 1968 (S;RES/252 (1968)), was
received too late for detailed consideration in this pamphlet-but it does not
appear to alter the position described above.
36
CHAPTER III
THE LAW AND
JERUSALEM
We shall in this Chapter
distinguish between, and deal separately with, those parts of Jerusalem which
were under Israeli control between 1948 and 1967, i.e. in general terms, the
New or western City, and those parts which fell under
Israeli control as a result of the fighting in June 1967, i.e. the Old and
eastern parts of the City.
(a) THE NEW CITY
It will be clear from the previous
chapter that it was no part of the General Assembly's original intention as
expressed in the 1948 Partition Resolution that any part of Jerusalem should be
subject to the sovereignty of Israel or of any other State. Yet, as events have
turned out, Israel has been in control of the New City of Jerusalem since 1948
and has claimed sovereignty over it since 1949. The question which we must
examine is whether there is any element of illegality in this now
long-established Israeli presence in, and claim to sovereignty over, the New
City.
Israeli sovereignty over the New
City of Jerusalem has rarely been challenged and is now established to a degree
which renders unrealistic any contemplation of reversal of the position. Nevertheless,
an understanding of the basis of Israel's rights in the New City before 1967 is
fundamental to an appreciation of her rights in the Old City after 1967.
When considering rights to
territory, lawyers usually prefer to speak in terms of "title to," or
"sovereignty over," territory. Certainly in the case of the New City,
these are what Israel claims. The New City is in the Israeli view no less a
part of the territory of Israel than is, say, any part of Israel, l such as Tel
Aviv, falling within the territory originally allotted to the Jewish State
under the Partition Resolution and therefore indisputably Israeli. As will be
seen, the Israeli claim to the Old City is differently couched and may
therefore be different in nature.2
'Though
see above, p. 20, for an indication of the manner in which a number of States
have refrained from establishing embassies in Jerusalem for reasons said to
flow from the operation of the Partition Resolution.
2
See below, p. 50.
37
Concerned then, as we are, with a question of title, the
normal procedure is to trace the chain of title back from the present claimant
to a holder whose rights were unquestioned.
If there is no defect in the chain, the present claim is
deemed valid.
In scrutinizing the basis of
Israeli title to the New City it is unnecessary to go farther back than the
period of Ottoman rule which ended de facto in 1917. The transfer of Ottoman sovereignty
over Palestine to the Principal Allied and Associated Powers was confirmed in
the Treaty of Lausanne, 1923.' In the meantime, the Powers had in effect vested
their rights in the League of Nations, to be exercised in fulfilment of the
objects of the Mandates System.' As indicated earlier, the precise location of
sovereignty over Palestine during the period of the Mandate is difficult to
specify, but at any rate all the attributes relevant for present purposes,
including the right to dispose of territory, could be exercised only with the
consent of the Council of the League.
What happened when the League of
Nations ceased to exist? We have the authority of the International Court of
Justice for the proposition that after 1946 the status of a mandated territory could
only be altered with the consent of the General Assembly of the U.N. This
suggests that at least part of the League's interest in the sovereignty
previously vested in it and the Mandatory had, as a result of the events of
1945-1946, devolved upon the U.N. If this is correct, what happened to
sovereignty in Palestine as a result of the adoption of the Partition
Resolution?
One thing is clear-namely that the
United Kingdom thereupon completely dropped out of the picture. This loss of
any vestige of participation in the title to Palestine was inherent in giving
effect to the British wish to be relieved of the obligations of the Mandate.
There remains the question of what
happened to the residual rights (such as they may have been) of the U.N. At
this point further examination of the chain of title becomes so complex and
speculative-and the consistent pursuit of each theory diverges so much from the
material facts and the terms of the
'See above, p. 13. a
2 Ibid.
8
relevant instruments-that it is questionable whether the
investi. gation is worth maintaining.
There are, of course, a number of
theories which one could examine. One possibility is that the U.N. conveyed its
residual rights to the proposed Arab and Jewish States respectively, but
retained its interest in the area of the proposed
international City of Jerusalem. There are, however, a number of difficulties
about this approach. An important one is that the language of the Partition
Resolution clearly does not cover this theory. There is no recital of the U.N's
interest; there are no words which effectively establish the two States; there
is no reservation
of rights over the area of the international City. Instead, the relevant operative parts of
the Resolution consist of the following paragraphs:
"The General Assembly
Takes note of the declaration by the Mandatory Power that it plans to complete its
evacuation of Palestine by lst August, 1948;
Recommends to
the United Kingdom, as the mandatory Power for Palestine, and to all other
Members of the United Nations the adoption and implementation, with regard to
the future Government of Palestine, of the Plan of Partition with Economic
Union set out below:
Requests that
.. .. .. ..
.. .. ..
.. ..
(c) The Security Council determine
as a threat to the peace, breach of the peace or act of aggression, in
accordance with Article 39 of the Charter, any attempt to alter by force the
settlement envisaged by this resolution;
.. .. .. ..
.. .. ..
.. ..
Calls upon the
inhabitants of Palestine to take such steps as may be necessary on their part
to put this plan into effect;
Appeals to all
Governments and all peoples to refrain from taking any action which might
hamper or delay the carrying out of these recommendations . . ."
None of this reflects an intention to convey rights,
conditionally or otherwise.
A second reason why it would be
difficult to treat the Partition Resolution as the conveyance of the U.N.'s
rights is that we then run into insuperable difficulties when seeking to
39
reconcile the continuance of the Resolution as an effective
legal instrument with the facts as they eventually unfolded.' We are left with
so many important unanswerable questions. For example, if the Partition
Resolution conveyed sovereignty to the Arab and Jewish States, what was the
effect upon that transfer of the rejection of the Resolution by the Arab
States? Was the proposal for an Arab State severable from the proposal for a
Jewish State? Was the proposal for an international Jerusalem severable from
the creation of the two new States? Or did the grant of sovereignty to the
Arabs lapse while that of Israel remained effective? In any case, how can the
U.N.'s silence regarding the retention of such (if any) of its rights as did
not pass be reconciled with its complete silence on this aspect of the matter
for 20 years?
One can contemplate various other
theories about the orderly devolution of sovereignty in Palestine. One can even
examine the implications of theories about the location of sovereignty in
mandated territories other than the one adopted above as the starting point for
this discussion, namely, that sovereignty was divided between the League and
the Mandatory. z But
none of these approaches provides a fully satisfactory answer to the question
of sovereignty in Palestine after 1948.
It thus becomes appropriate to
take note of the possibility that a territory may not have a sovereign. In such
circumstances, sovereignty is said to be in "suspense."
Or, to put it another
1. Even within the Security Council there was a divergence of views upon the effect of this Resolution. In December 1948 the Soviet view was stated m the Security Council in the following terms:
"The U.S.S.R. . . . maintains ... that the basis for the creation and the existence of the State of Israel and of an Arab State in Palestine is the General Assembly resolution of 29th. November, 1947. That resolution is an international legal document entitling the State of Israel and the Arab State of Palestine to their creation and existence, and nobody-except, of course, the General Assembly-has a right to revoke it …
Modification is, of course, possible, but that is the affair of the State of Israel and not of those who are trying by force to deprive it of territory which is legally its own ... " (S.C.O.R., 3rd Year, No. 129, 385th mtg., 17th Dec. 1948, pp. 28-29).
On the other hand, in the same debate, the Canadian representative said:
“We regard the resolution of the General Assembly as having the force of a recommendation, and we do not consider the settlement, which we hope will emerge soon in Palestine, need conform precisely to any resolution of the General Assembly." (Ibid., P. 24).
2 For the summary statement of
the different views, sec: OPpenhcim's International
Law, vol. I (8th ed., 1955), p. 222, n. 5.
40
way, there arises a lapse in or vacancy of sovereignty. Naturally, cases of this kind are
rare-but the United Kingdom has gone on record in acknowledging its
possibility. In 1955, in reply to a Parliamentary question about the legal aspects
of the situation in the South-East China Coast, the reply was given that
"Formosa and the Pescadores are therefore, in the view of Her Majesty's
Government, territory the de jure sovereignty
over which is uncertain or undetermined."' Subsequently, the British
Government applied the same concept quite specifically to Palestine-in
considering the position of the Gaza strip which had been occupied by Egypt in
1948. On 14th March, 1957, the Foreign Secretary said: "The facts about
the Gaza strip seem to me to be these. No country has legal sovereignty ..."
2
Once the possibility of a vacancy
or vacuum in sovereignty is recognized, then the situation in Palestine in 1948
is one which can readily be seen in such terms. Whatever may have been the
notional intention of the General Assembly at the moment of the adoption of the
Partition Resolution on 29th November, 1947, the early British withdrawal, 3
the Arab rejection of the Resolution, the creation of the State of Israel
and the entry into Palestine of the neighbouring Arab States with a view to
crushing Israel, all led to a situation of such juridical confusion as to
exclude any tracing of an orderly devolution of sovereignty.'
But if there was, upon the
termination of the mandate, a sovereignty vacuum in Palestine, the large
question arises of how it could validly be filled. The suggestion that there was a vacuum of sovereignty does not
imply that Palestine became at the end of the mandate a terra nullius, a land owned by no-one
'House of Commons Debates, vol. 536, Written Answers, col. 159, 4th Feb. 1955. See also E. Lauterpacht, "Contemporary Practice of the United Kingdom," International and Comparative Law Quarterly, vol. 5 (1956), p. 414. The answer was repeated in House of Lords Debates, vol. 212, col. 498, 13th Nov., 1958.
2 House of Commons Debates, vol. 566, col. 1320. For comment, see E. Lauterpacht, op. cit., vol. 6 (1957), p. 513.
3 This had originally been planned for the end of July, 1948, but in fact took place on 14th May, 1948.
4 It is possible, of course, that the sovereignty vacuum in Palestine at the end of the Mandate was nothing more than a reflection of a much longer standing lapse of sovereignty going back to the date when the territory was placed under Mandate. This thought is suggested by the following observation of Sir Arnold (now Lord) McNair in his Separate Opinion on the International Status of South-West Africa: "Sovereignty over a Mandated Territory is in abeyance; if and when the inhabitants of the territory obtain recognition as an independent State, as has already happened in the case of some Mandates, sovereignty will revive and vest in the new State." (I.C.J. Reports 1950, p. 150).
41
in which anyone was free to stake a claim by simply
combining physical presence with an assertion of title. l Slight though the
legal force of the Partition Resolution might be, it is difficult to conceive
of it as having opened up Palestine to the law of the jungle, to be carved up
on the basis of first come first served.
In other words, it seems
reasonable to suggest that sovereignty could only be acquired by lawful action.
Indeed, the scope for the right-creating effect of illegal acts in
international law is exceedingly restricted; and there seems to be general
consensus to-day as to the validity of the maxim ex injuricr ius non oritur -no right can be born of an
unlawful act.
It becomes necessary, therefore,
to consider the legality of the various demonstrations of physical power in
Palestine in the period immediately following the end of the Mandate. We
must accordingly attempt an assessment of the conduct of
the neighbouring Arab States and of Israel at that time.
Of the Arab States, Jordan was not
a member of the U.N. and did not become one until 1955. Israel did not become a
member of the U.N. until 1949. But few
will be likely to dissent from the proposition that the legality of the conduct
of all concerned-even in the period before Jordan and Israel became members of
the U.N.-fell to be tested by reference to the Charter of the ll.N.
Technically, this instrument does not bind States not parties to it, but its
basic principles have generally been regarded as reflecting fundamental legal
obligations of all States, whether or not formally members of the U.N. Indeed, Article 2 (6) of the Charter both
acknowledges and asserts this superior juridical authority for the principles
of the Charter by providing that
"the Organisation shall
ensure that States which are not Members of the United Nations act in
accordance with these Principles so far as may be necessary for the maintenance
of international peace and security."
The principle of the Charter which
is most relevant in this connection is Article 2 (4):
"All Members shall refrain in
their international relations from the threat or use of force against the
territorial integrity
'See,
for a similar view, Blum, "The Missing Reversioner: Reflections on the
Status of Judea and Samaria," Israel Law Review, vol. 3 (1968), at p. 283.
42
or political independence of any
State, or in any other manner inconsistent with the Purposes of the United
Nations."
It will be recalled that
immediately after the termination of the Mandate, the forces of Egypt, Iraq,
Jordan, Lebanon and Syria crossed the borders of Palestine with the declared
object of preventing by force the implementation of the Partition Resolution. Some of the evidence of the nature
and object of
this attack has already been mentioned. l To this may be added a reference to
an explanatory footnote appended to the text of the Partition Resolution as it
is printed in an official British publication-the British and Foreign State Papers. The note in question, after
speaking of the establishment of Israel on 14th May, 1948, continues as
follows: "On the following day Israel was simultaneously invaded by the
armed forces of Egypt, Transjordan, Iraq, Syria and the Lebanon. Hostilities
continued until January 1949." 2
This invasion was entirely
unlawful. True, Article 2 (4) of the Charter prohibits primarily "the
threat or use of force against the territorial integrity or political
independence of any State." And it might, therefore, be argued that in so
far as the Arab States were moving into the part of Palestine allotted to the
proposed, but as yet uncreated, Arab State, they were not infringing the
territorial integrity of any State. Moreover, it could be said, from the Arab
point of view, that as they did not recognize Israel as a State, the violation
of the boundaries of the territory allocated to her was no breach of their obligations
under Article 2 (4).
Arguments of this kind, however,
carry no great weight when it is appreciated that, as was the fact, the
invading Arab States did not intend to, and did not, limit their incursion to
the territory of the proposed Arab State and, moreover, that the prohibition of
attack upon "States" is not limited to States which have been
recognized by the attacker but extends to any State which enjoys a de facto existence-as Israel undoubtedly
did and was recognized by others as doing.
1
See above, p.p. 21-22.
2
See British and Foreign State Papers, vol. 154 (1949--II), p. 384, n. 1.
43
Another Arab justification of
their attack upon Israel in 1948, and indeed of the continuance of their
attitude of belligerency to Israel ever since, is this: that the true
aggressor is Israel, which, by the very fact of its establishment and
existence, attacks the political independence and territorial integrity of the
embryonic State comprising the Arab people of Palestine;' and that the presence
of the forces of neighbouring Arab States is warranted as a measure of
collective self-defence pursuant to Article 51 of the Charter. The difficulty
with this argument is that it invites the assumption that Israel did not, does
not and cannot exist as a State with its own right to survival-an assumption
which is universally rejected by all save the Arab States.
If, then, there was no legal
warrant for the Arab invasion of Palestine in 1948 aimed at the destruction of
Israel, two consequences follow. First,
by reason of the illegality of the conduct,
no Arab State could rely upon its physical occupation of
any part of Palestine as a valid foundation for filling the sovereignty vacuum.
Thus Jordan was not entitled to claim any of the areas west of the river Jordan
(a matter of special relevance in connection with Jordan's position in the Old
City of Jerusalem -of which more will be said later) and Egypt was not entitled
to assert sovereignty over the Gaza Strip. 2
The second consequence is that, of
course, Israel when attacked became entitled to defend herself. This is a
fundamental right of States in international law, and the restatement of the right
in Article 51 of the Charter of the U.N. in terms which acknowledge the right
of self-defence if an armed attack occurs against a Member of the U.N., does
not really limit its generality.
In estimating the proper
geographical limits of the development of Israeli self-defensive measures, it
is necessary to recall the nature of the attack launched against the Jewish
people of
Palestine. The attack was not simply an attack upon the
Jewish people in the area of Palestine allocated to the Jewish State;
1 For a statement of this view, see Colloque de Juristes Arabs sur la Palestine, 1967, La Question Palestinienne (1968), p. 115.
2 See p. 41 above for the British attitude to sovereignty over the Gaza Strip-an attitude which, though barely elaborated, may well have been founded upon considerations similar to those examined here. On the other hand, on 27th April, 1950, the British Government announced its recognition (subject to the exclusion of Jerusalem) of the Union with the rest of Jordan of the West Bank areas occupied in 1948. See House of Commons Debates, vol. 474, cols. 1137-1139.
44
it was an attack upon all Jewish settlement in Palestine,
whereever situate, and including especially the Jews in the area set aside for
the international City of Jerusalem. At that time, acceptance of a territorially
internationalized Jerusalem was no part of Arab thinking. Their aim was to drive the Jews from Jerusalem no less
than from the other parts of Palestine.
This being so, it is clear that
the defensive measures adopted by the Israeli forces could not be limited to
the area allocated to Israel in the Partition Plan. The Arabs by attacking the Jews
outside the area of the Jewish State and by forcibly rejecting the
internationalization of Jerusalem were
themselves responsible for the first Israeli expansion beyond the Partition
boundaries. By provoking this Israeli movement outside the boundaries of the
Jewish State, the Arabs themselves legitimized the process by which Israel
filled the vacancy in sovereignty in the areas which, in order to save their
kin, the Israeli forces were obliged to defend and therefore to occupy.
It is on this basis-the legitimate
filling of the sovereignty vacuum-that the legality of Israeli presence in the
New City of Jerusalem in the period prior to the fighting of June 1967 may be
seen as resting.
When the situation is analyzed in
this way, the Armistice Agreements of 1949 fall into their proper place. Quite
understandably, each of these Agreements concluded between Israel and her
neighbours contains a provision that the armistice lines therein laid down
shall not prejudice the future political settlement. t It would not,
therefore, be accurate to contend that questions of title, as opposed to
temporary rights of occupation, depend upon the Armistice Agreements. Questions
of sovereignty are quite independent of the Armistice Agreements. Thus, if
Israel had, prior to the Armistice Agreement with Jordan, filled the
sovereignty vacuum in any particular place, such as the New City of Jerusalem
or Tel Aviv, without committing any unlawful act, then her title to that place
is perfected and exists apart from the Armistice Agreements.
The important function of the
Armistice Agreement was to add to the general prohibition upon the use of force
prescribed by Article 2 (4) of the Charter of the U.N., the specific further
1 See Article If (2) of the Israel-Jordan Armistice Agreement, 1949 (U.N.TS., vol. 42, p. 304).
45
prohibition contained in the armistice. 2 This restricted
even further the limits within which the Parties might lawfully use force and
thus validly claim to step into the shoes of the defunct sovereign. It follows,
then, from all that has been said in this section, that by filling the
sovereignty vacuum Israel acquired a valid title to the following parts of
Palestine:
(i)
those
parts allotted to the Jewish State under the Partition Plan, because Israel
could not, and did not, commit any infringement of anyone else's rights in
perfecting its title to those parts; and
(ii)
those
parts of Palestine outside the area allotted to the Jewish State, which Israeli
forces were compelled to occupy by way of self-defensive measures during the
fighting of 1948-49. These parts include the New City of Jerusalem.
It may be said in passing that the
U.N. appears to have acquiesced in this conclusion, primarily because over the
last twenty years it has not chosen to challenge it. This is so even in
relation to the New City of Jerusalem. 2
(b) THE OLD CITY
(i) JORDAN'S POSITION IN THE OLD CITY PRIOR TO JUNE 1967
Jordan's legal position in the Old
City from 1948 to 1967 can be dealt with quite briefly, since all the relevant
legal considerations have been set out in the previous section. Quite
1 Article I of the Israel-Jordan Armistice Agreement of 3rd April, 1949, (U.N.T.S., vol. 42, p. 304) provided as follows:
"With a view to promoting the return of permanent peace in Palestine and in recognition of the importance in this regard of mutual assurances concerning the future military operations of the Parties, the following principles, which shall be fully observed by both Parties during the armistice, are hereby affirmed: l. The injunction of the Security Council against resort to military force in the settlement of the Palestine question shall henceforth be scrupulously respected by both Parties.
2. No aggressive action by the armed forces-land, sea, or air-of either Party shall be undertaken, planned, or threatened against the people or the armed forces of the other …"
Article III, 2, provided:
"No element of the land, sea or air military or para-military forces of either Party, including non-regular forces, shall commit any warlike or hostile act against the military or para-military forces of the other Party.... or shall advance beyond or pass over for any purpose whatsoever the Armistice Demarcation Line set forth in articles V and VI of this Agreement . . ."
2 See above, p.p. 23-36.
46
simply, Jordan's situation in the Old City is the converse
of Israel's position in the New. There was never any legal justification for
Jordan's entry into the Old City. In contrast with what Jordan did, Israel had
not, by rejecting the plan for the internationalization of Jerusalem and moving
up forces to expel the citizens of the opposing side, created a condition
warranting Jordanian self-defensive measures. Thus Jordan's occupation of the
Old City-and indeed of the whole of the area west of the Jordan river-entirely
lacked legal justification; and being defective in this way could not form any
basis for Jordan validly to fill the sovereignty vacuum in the Old City.
Jordan's prolonged de facto occupation of the Old City was protected exclusively
by the Armistice Agreement which prohibited Israel from initiating action to
displace Jordan; and Jordan's occupation could last no longer than the
protection thus afforded. This bulwark was abandoned when Jordan destroyed the
Armistice Agreement by its attack on Israeli Jerusalem on 5th June, 1967.
Moreover, this same Armistice
Agreement affirms in Article II its recognition (1) that "no military or
political advantage should be gained under the truce ordered by the Security
Council" and (2) that no provision of the Agreement "shall in any way
prejudice the rights, claims and positions of either Party hereto in the
ultimate peaceful settlement of the Palestine question." The Agreement
thus effectively precludes Jordan from asserting any sovereign right to the Old
City on the basis of twenty years of effective occupation. 1 Its provisions
negative the right creating effect which the facts might otherwise have had.
(ii) ISRAEL'S POSITION IN THE OLD CITY SINCE JUNE 1967
This brings us to the question of
Israel's legal rights in the
1 In this connection it is worth noting the reaction of the Arab League to the Jordanian attempt to annex the West Bank areas of Palestine, including Jerusalem, in April 1950. On 16th May, 1950, the Political Committee of the Arab League decided unanimously that the annexation of Arab Palestine by the Jordan Government violated the League's resolution of 12th April, 1950, which prohibited the annexation of any part of Palestine. Egypt, Saudi Arabia, Syria and Lebanon voted on 16th May, 1950, for the expulsion of Jordan from the Arab League. However, after Iraqi mediation, a compromise was reached under which Jordan declared that the annexation was without prejudice to the final settlement of the Palestine issue. This union was recognised by the British Government subject to the reservation that "pending a final determination of the status of [the Jerusalem area] they are unable to recognise Jordan sovereignty over any part of it." (See Whiteman's Digest of International Law, vol. 2, pp. 1163-1168).
47
Old City in the period subsequent to its occupation by
Israeli forces in June 1967. It follows from what has been said above that the
sovereignty vacuum arising in the Old City at the end of the Mandate was not
filled by Jordan, whose status there was one of de facto occupation protected by the
Armistice Agreement. Once Jordan was physically removed from the Old City by
legitimate measures-as the Israeli reactions to the Jordanian attack on 5th
June, 1967, undoubtedly were-then the way was open for a lawful occupant to
fill the still subsisting vacancy.
That Israel would be entitled to
do this, there seems-on the reasoning here set out-to be little doubt. What is
less certain is whether in strictly legal terms she has in fact done so. Although,
in political terms, Israeli control over the Old City has been repeatedly and
emphatically asserted, and although she has declared that her position there is
"not negotiable," she has not expressly and in so many words claimed
"sovereignty" over the Old City. Instead she has spoken of
re-unification and of reuniting the administration of the two parts of the
City.
Still, if, as is suggested, the
larger measures would be justifiable, then the lesser measures certainly are.
And one has then only to ask on what basis the General Assembly could have asserted
its view on 4th July, 1967' that the Israeli measures are invalid; and what
effect, if any, has to be ascribed to this assertion.
To dispose of the question of
effect first, the answer is simply that the Resolution of 4th July, 1967, is
legally quite ineffective. Leaving aside for the moment the fact that the
Resolution appears to have been formulated on the basis of a misconception of
the legal position, the fact remains that General Assembly resolutions do not,
in the absence of special circumstances which do not characterize the present
situation, 2 create legal obligations for their addressees.
Consequently, unless the Israeli measures are invalid for other reasons, the
Resolution cannot make them so or require Israel to rescind them.
But are there in truth any
reasons-the mere contents of the Resolution apart-for denying validity to the
Israeli measures? They are not the acts of an aggressor as the Assembly by its
own
1
Resolution 2253 (ES-V). See above, p. 34.
2 0n the limits of the
binding force of resolutions of the General Assembly, see Johnson in British
Year Book of International Law, vol. 32, p. 97.
48
rejection on 4th June of the Soviet and Albanian draft
resolutions has so clearly indicated 1 and cannot therefore be
condemned on that ground. Perusal of the General Assembly debates suggests that
the thought of Members at the time may have been woven of two separate strands.
(i) certain ideas about the relevance of the law of belligerent occupation and
(ii) some maxims about the relationship of force and territorial change.
CONSIDERATIONS OF THE LAW OF BELLIGERENT OCCUPATION
The traditional law of war,
developed when there was no legal fetter upon the freedom of States to resort
to war, 2 contains a chapter on "belligerent occupation." On
the assumption that two States are at war with each other in a technical sense,
3 there exist rules which govern the rights and duties of each
belligerent in relation to the occupation by it of its enemy's territory. One
of these rules involves the distinction between "occupation" and
"annexation" of enemy territory. "Occupation" is mere
control of enemy territory by force of arms for so long as the belligerent is
able to maintain his position or until he voluntarily gives it up. It involves
no denial of the de jure rights of the regular sovereign, only a temporary, though
possibly prolonged, de facto suspension of the exercise of those rights. "Annexation,"
on the other hand, involves an attempt by the occupant to convert his physical
right of occupation into a legal title to the territory. In other words, he
seeks to change "sovereignty" over the territory from his enemy to
himself.
Having drawn this distinction
between "occupation" and "annexation" the traditional law
permitted the former but prohibited the latter. The rule was that pendente
bella, that is,
for so long as the technical condition of war lasted, a belligerent
'See
above, p. 11, n. 1.
'That
is, prior to the Kellog-Briand Pact, 1928, in which the Parties undertook not
to have recourse to war for the settlement of their disputes. This and the
Charter of the U.N. are the two major instruments which have effectively outlawed
resort to war and the use of force. 'It should always be recalled that so long
as "war" was lawful, i.e. before 1928, a distinction could be drawn
between, on the one hand, "war" as a technical legal status which
States were free to create and which might or might not be associated with
hostilities and, on the other, "hostilities" or "fighting"
which could, of course, occur even in the absence of a formal state of war.
To-day, it is doubtful whether a formal state of war can ever validly arise;
and the operation of the important humanitarian rules of warfare, such as the
1949 Geneva Conventions, has been made independent of the existence of any
technical state of war.
49
was not entitled to annex enemy territory which he might
have occupied. A transfer of title to territory in consequence of war could
take place only as a result of the cession of the territory in the treaty of
peace. 1
Now it would seem that, at any
rate for some States, considerations of this nature entered into the formation
of their attitude to the General Assembly Resolution of 4th July, 1967,
declaring the Israeli measures in the Old City of Jerusalem invalid. Thus in
the debate on the resolution Lord Caradon said, on behalf of the United
Kingdom, that the Israeli measures were invalid because they went beyond the
competence of an occupying power as defined by international law.2
The correctness of the British
approach as thus expressed rests upon one major assumption which appears to
have been wrongly made. The assumption was that Israel had in law formally
annexed the Old City of Jerusalem. For this view there is no evidence. Whatever
may be the generally held opinion as to the political future of the City, the
step of formal incorporation has yet to be taken. The point was made clearly by
the Israeli Foreign Minister in a letter received by the Secretary-General of
the U.N. on 10th July, 1967:
"The resolution presented on
4th July by Pakistan and adopted on the same day evidently refers to measures
taken by the Government of Israel on 27th June, 1967. The term
"annexation" used by supporters of the resolution is out of place. The
measures adopted relate to the integration of Jerusalem in the administrative
and municipal spheres, and furnish a legal basis for the protection of the Holy
Places of Jerusalem." 3 The measures in question were three in
number: the Law and Administration Ordinance (Amendment No. 11) Law, 1967,
1
Though this was the rule, there were
occasions on which it was not always honoured. For example, in 1878 the United
Kingdom was allowed by Turkey to occupy and administer Cyprus. Sovereignty over
the island remained in Turkey. When the First World War broke out, with Turkey
and Britain on opposite sides of the line of war, Britain remained in control
of the island, but the existence of the state of war put Britain in the
position of a belligerent occupant. Nevertheless, in 1914 the United Kingdom
unilaterally purported to annex the island. This was an unlawful act. Ultimately
the illegality was cured when Turkey recognised the annexation in the Treaty of
Peace.
2
See A/PV. 1553, p. 7.
3
See A/6753, p. 3. Reprinted in International Legal Materials, vol. 6 (1967), p. 846.
50
and accompanying Order, which extended the operation of
Israeli law, jurisdiction and administration to the eastern part of Jerusalem;
the Municipal Corporations Ordinance (Amendment) Law 1967, which empowered the
Minister of the Interior to enlarge the area of any municipality by the
inclusion of an area designated under the first measure; and the Protection of
Holy Places Law, 1967. None of these instruments constituted a formal
annexation of the Old City.
Once it is seen that there has
been no formal annexation of the Old City, and that the measures adopted by
Israel are largely consistent with the technical maintenance of a condition of
belligerent occupation, the objection expressed by the United Kingdom falls to
the ground.
Yet to have met the British point
on its merits, as has been done here, should not be read as an acknowledgment
of the correctness of the supposition that the traditional law of belligerent
occupation is as such applicable to the Israeli position in Jerusalem. It must
suffice for present purposes to indicate that any such supposition makes
certain assumptions about the nature of the conflict between Israel and her
neighbours, about the character of the Jordanian presence in Jerusalem and
about the duration of the applicability of the rules of occupation which are
very far from being beyond controversy in this context.
FORCE AND TERRITORIAL CHANGE
The reference to the law of
belligerent occupation has necessitated the introduction into the present study
of considerations which look technical even in the context of a legal debate.
This does not make them bad, but it does warrant returning to the discussion on
the basis of the general assumption that Israel has in effect annexed the Old
City of Jerusalem.
When approached thus, the ground
on which the legality of the Israeli actions has been denied is the proposition
that territorial change as a result of the use of force is impermissible.
This proposition, stated in this
unqualified form-and it is only in an unqualified form that those who use it
can make it apply to the Jerusalem situation-is an erroneous distortion of a
well-known and well-established principle. The correct principle has already
been mentioned in this paper-ex injuria jus
non oritur, out
of a wrong no right can arise. Or, relating the
51
proposition
more closely to the situation, territorial change cannot properly take place
as a result of the unlawful use of force. But to omit the
word `unlawful' is to change the substantive content of the rule and to turn an
important safeguard of legal principle into an aggressor's charter. For if
force can never be used to effect lawful territorial change, then, if territory
has once changed hands as a result of an unlawful use of force, the
illegitimacy of the position thus established is sterilized by the prohibition
upon the use of force to restore the lawful sovereign. This cannot be regarded
as reasonable or correct.
Moreover, it does not accord with the law as
reflected, for example, in the discussions of the U.N. Special Committee on
Principles of International Law concerning Friendly Relations and Co-operation
among States. Among the principles considered by this Committee is the
principle that States shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any State or in any other manner inconsistent with the purposes
of the U.N. Now it is significant to observe that in none of the various
proposals for the elaboration of this principle advanced in this Committee at
its second session held in July-August 1967, in the immediate aftermath of the
June war, was the proposition about the consequences of the use of force ever
put forward in the stark and unqualified terms upon which the critics of the
Israeli position have been relying.
Perhaps it is unnecessary to do more than examine the
joint proposal made by a number of States which included some of Israel's most
vocal and active opponents, such as Algeria, Syria and the United Arab
Republic. This draft,' after restating the basic prohibition on the use of
force, then proposes that
"5. No
threat or use of force shall be permitted to violate the existing boundaries of
a State and
any situation brought about by such threat or use of force shall not be
recognized by other States.” 2
This
looks, of course, like the statement of the proposition in an unqualified form.
But it is followed in the very next para –
1
A/AC.125/L.48. See the Report of the Committee to the 22nd Session of the
General Assembly, A/6799, 26th Sept. 1967, para. 26.
2
Italics supplied.
52
graph
by the quite crucial qualification that "the prohibition of the use of force shall not
affect ... the right of States to take, in case of armed attack, measures of
individual or collective self-defence in accordance with Article 51
of the Charter …"1 Yet, once this qualification is accepted
(and the facts of the fighting in June 1967 certainly bring Israel within its
ambit), it quite undermines the validity of the loose assertion of the formula
so readily enunciated in the General Assembly.
It may be of course that a number of Members of the
U.N., while not seeking to advance the proposition except in its full and
qualified form have been taking the view that Israel's action does not fall
within the conception of permissible self-defence. Yet if her action was not
self-defensive, it could only have been aggressive; and the General Assembly,
by a most impressive majority, was unwilling to reach this conclusion. 2
1
Italics supplied
2
See above, p. 11, n. 1.
53
CHAPTER IV
THE FUTURE OF THE HOLY PLACES
It is now necessary to look forward. We have already seen in this paper
that the proposals for the territorial internationalization of Jerusalem have
effectively lapsed; that the objectives which internationalization was intended
to secure were, even when the Old City was in Jordanian hands, with one major
exception, achieved; and that they have all been maintained under Israeli
occupation. We have seen too that there is nothing illegal about Israeli
presence in either the New or the Old parts of the City of Jerusalem.
But the fact remains that, regardless of who is
sovereign or exercises jurisdictional control in Jerusalem and regardless, too,
of the adequacy of the manner in which the City is administered and access to
the Holy Places actually secured, there still exists among the nations and
faiths of the world an interest in Jerusalem which thirsts for expression in
some formal manner. The need for an international instrument may well be more
psychological than organic, but there can be little doubt that the need is
felt.
In reflecting upon the scope and content of this
expression of interest, two things may be recalled: the nature of the interest
and the theoretical range of modes in which it may be met.
We start with the commonplace that the Holy Places are
of interest to three great religions-Christian, Moslem and Jewish. On the
whole, those personally demonstrating this interest can be divided into two
groups: those whose presence in the Holy Land is transient and those whose
presence is permanent. In relation to the transients, what is required is
acknowledgment of their right to come and go freely and to worship. For those
who remain for the longer term, what is required is the freedom so to remain,
to maintain themselves as part of a religious community in the manner hitherto
prevailing, and to lead their lives free of unnecessary intrusion by the
secular authority. In addition, the religious communities desire that their
vested rights in the Holy Places should be respected; and all are
concerned-though their concern is not always translated into effective common
action-that the physical fabric of the
54
various
Holy Places should be preserved in good repair. They need too the presence of a
lay authority capable of maintaining the rights of each as against the others
and possibly of settling any disputes which may arise between them.
The selection of one or more devices from the wide
variety of legal forms available for the reflection of international interest
is a matter of political rather than legal decision. In this connection it is
always important to bear in mind the distinction between national and
international law. It is perfectly possible for the necessary guarantees of
religious interests to be secured exclusively in terms of national law-the law
of the local authorities. In fact, subject only to the declarations made by
Jordan and Israel to the U.N. Conciliation Commission in November 1949, that is
the basis on which the Holy Places have been regulated since 1948. Indeed, it
is the basis on which the Holy Places were treated throughout the period of
Ottoman rule; and, within the limits prescribed by the Mandate, this was also
the position from 1917 to 1948.
Since the re-unification of Jerusalem in 1967, the
Protection of Holy Places Law, 1967,1 has provided that the Holy
Places should be protected from desecration and any other violations and from
anything likely to violate the freedom of access of the members of the
different religions to the places sacred to them or their feelings with regard
to those places. Whoever desecrates or otherwise violates a Holy Place shall be
liable to imprisonment for a term of seven years.
(a)
INTERNATIONAL ASSURANCES
But it is also possible to provide some assurances
about the Holy Places in terms of international law. These guarantees can vary
greatly both in form and in content.
(i)
FORM
As regards form, the assurances could be established
either in a treaty or in a unilateral declaration.
The selection of the treaty form would immediately
give rise to a question about the parties; and this in its turn would to some
extent depend upon the substantive content of the treaty.
1 English
text in U.N. doc. A/6793*, 12th Sept., 1967, p. 26, para. 140.
55
If
it were simply a general restatement of the obligations of the local secular
authority in relation to the Holy Places, the treaty could be either bilateral,
between Israel and the U.N., or multilateral, between Israel and such other
States as desired to manifest their interest in the Holy Places.
Clearly, there would be greater difficulty about the
conclusion of a multilateral than a bilateral treaty, unless the treaty were
drawn up by the U.N., and Israel and the other interested States were invited
to accede. While this might be one way in which the U.N. could reassert its
authority in the situation, it is questionable whether an approach along these
lines would in fact achieve its stated object. Assuming that the text of the
relevant instrument were to be drawn up in the General Assembly, a two-thirds
majority of the Members of that body would suffice for the adoption of the
text. Adoption of a text is, of course, not the same thing as making it binding
upon the prospective parties. But once the text of a multilateral treaty is
adopted, States, if they are to become parties, have to take it largely as it
stands. Although the technique of permitting reservations may enable some
States to ratify the treaty as a whole without accepting some of its more
objectionable clauses, the flexibility thus introduced is limited. In these
circumstances, and having regard to the strength and influence of the Arab bloc
in the Assembly, especially when combined in a matter of this kind with the
non-Arab Moslem States, there is the distinct possibility that the General
Assembly might by a majority adopt a convention which would be unacceptable to
Israel. And whether or not Israel's possibly negative attitude to such a
convention might appear to all persons to be reasonable and proper would, in
all the circumstances, be irrelevant. The declared object of the exercise-the
adoption of a binding instrument regarding the Holy Places-would have been
defeated. This outcome is not inevitable-but negotiation within the U.N. seems
to be the most speculative of the approaches which may be considered.
Another alternative is that of the bilateral treaty.
Here again there are various possibilities. One is that of a single bilateral
treaty concluded between Israel and the U.N. This in fact was suggested by
Israel in 1949. At that time, she proposed a text-the content of which still
has considerable contemporary
56
relevance
and is printed for convenience of reference as Appendix I hereto. However, this
approach, like that of the multilateral treaty, is also exposed (though perhaps
less so) to the risk of uncontrollable marshalling of forces in the Assembly
more interested in making political capital out of a frustrated negotiation
than in securing the conclusion of a workable agreement. l
More feasible would be the conclusion of a series of
bilateral agreements between Israel and each of the Parties especially
interested in the Holy Places. These might include the Holy See (as
representing one, but not, of course, all the Christian denominations) and
Jordan. This approach would have a number of advantages. There would be scope
for true negotiation based upon a genuine desire to reach accommodation. The
special requirements of the different Parties could more easily be met. For
example, to the extent that any formal recognition of Jordan's sovereign
interest in the Moslem Holy Places of Jerusalem were possible, it could more
readily be incorporated into a bilateral agreement between Israel and Jordan
than into a multilateral agreement. Again, the negotiation of an accord upon
the status and privileges of the Christian religious communities in Jerusalem
could perhaps more easily be concluded with the representatives of one
denomination than with those of all denominations. Moreover, the conclusion of
a series of bilateral agreements could be spaced out over a period of time,
thus eliminating the need to achieve simultaneous consensus amongst a large
number of States.
The merit of the treaty approach-whether multilateral
or bilateral-is that the content of the settlement is assured upon a
contractual basis. There is then no scope for unilateral withdrawal or
amendment, unless specially agreed upon or otherwise permitted by the text.
Nonetheless, there remains another alternative which
is not necessarily exclusive of the treaty approach, but can be used as a
substitute for it over either the long or the short term. This
1 A variant of this device would be the adoption by the General Assembly of a suitably worded resolution, followed by formal acceptance thereof by Israel. As General Assembly resolutions are not normally binding, such acceptance by Israel would be necessary if it were to have any legal force. The Israeli proposal for the Holy Places submitted to the Trusteeship Council in May 1950 in fact suggested that a "statute" might be adopted in this way (see G.A.O.R., 5th Sess., Suppl. No. 9, p. 29, para 21 (a)). Pursuit of this method to-day might well be open to the difficulties discussed above.
57
is the device of the unilateral declaration intended to
create international obligations for the State making the declaration. True,
such declarations are relatively rare; and their effect in international law is
not free of doubt. All one can confidently say is that their legal force becomes
more certain if one can show that any invitation implicit in them has been
accepted by other States. Such acceptance would in effect convert the
declaration from one of general force into one having contractual effect as
between the declarant State and the State accepting the declaration.
There is one recent precedent for
the making of such a declaration in relation to a matter of general interest in
the Middle East. On 24th April, 1957, the Egyptian Government made a
Declaration on the Suez Canal and the Arrangements for its Operation.' This
began with the following statement:
"In elaboration of the principles set forth in their
Memorandum dated l8th March, 1957, the Government of the Republic of Egypt, in
accordance with the Constantinople Convention of 1888 and the Charter of the
United Nations, make hereby the following Declaration on the Suez Canal and the
arrangements for its operation."
In paragraph 9, the Government of
Egypt indicated that it would accept the jurisdiction of the International Court
of Justice in disputes arising between parties to the 1888 Convention. The
Declaration concluded thus:
"This Declaration, with the
obligations therein, constitutes an international instrument and will be deposited and registered with
the Secretariat of the United Nations."
As already suggested, the precise
legal quality of declarations of this kind is open to debate. The text
contains, especially in the last paragraph, several indications of the
intention of the Government of Egypt to constitute it an "international
instrument." Yet, when the instrument is perused as a whole, it contains
little in the way of statement of obligation and much instead in the way of
statement of intentions. It does not contain any suggestion that it is an
invitation which other States may, by an act of acceptance, crystallize into a
binding commitment.
1 For text, see E. Lauterpacht (ed.), The Suez Canal Settlement (1960), p. 35.
58
Equivocal though this particular text may be, it does exemplify
one technique which could be used in the present situation. Certainly, it is
not beyond the bounds of juridical imagination to develop a form of words
which could serve unilaterally to create international obligations. From the
point of view of the Government of Israel, there might be convenience in such
an approach, which would permit it to demonstrate the sympathy which it
undoubtedly feels for "the universal interest" in Jerusalem, while at
the same time doing so in its own terms and in a manner which could not
prejudice the subsequent conclusions of bilateral treaties or other
arrangements.
(ii) CONTENT
We may now turn to the content of
an international arrangement, whatever may be its form. Here three elements
require consideration: substance, supervision and settlement. Their relevance
is suggested by examination of earlier proposals regarding the position of the
Holy Places.
(a)
SUBSTANCE
It is convenient to approach the
question of substantive content without regard to the proposals for the
territorial internationalization of Jerusalem. We
must assume that any further suggestion for actually placing Jerusalem under a
form of international government, involving the administrative divorce of the
City from the rest of Israel and the direct control of the City by an
international authority, is completely excluded. If a system of national
jurisdiction, albeit divided between Jordan and Israel, was acceptable for
nineteen years, then it is difficult to see why the continuation of a system of
national jurisdiction, albeit undivided, should now cease to be internationally
tolerable.
However, the rejection of any
suggestion of territorial internationalization does not mean that it is
necessary for Israel to adopt any rigid stand on such matters as
"sovereignty" over the Old City. While she has in the past claimed
sovereignty over the New City, she has not as yet done so over the Old; and
although there would appear, by reference to the considerations examined in
Chapter III above, no legal reason why formal Israeli sovereignty should not be
extended over the Old City,
59
there
is equally no compelling political reason why it should be. The subject is one
on which it is not necessary that anything should be said-and silence on this
topic could well be regarded as an important part of the "content" of
the instrument (whatever its form).
At one time, particularly in 1949, during the debates
in the Ad Hoc Political Committee of the General Assembly on the question of
Israel's admission to the U.N., the Government of Israel stated that it was not
opposed to the possibility of a limited territorial internationalization of
that part of the City in which there was the heaviest concentration of Holy
Places. This would, of course, have excluded the New City. Whether nearly
twenty years later the Israeli Government, or people, would still be of this
view, is clearly a matter for considerable doubt. Nevertheless, the maintenance
by Israel of a negotiating position of some flexibility prompts one to enquire
whether one possible solution, at any rate in part of the Old City, would be
not a territorial internationalization, but an acknowledgment of some form of
Jordanian national interest in the Moslem Holy Places.
To speculate upon the form, or even the possibility,
of this essentially symbolic gesture might be to raise ideas which have no hope
of implementation. It may be best therefore to make no further attempts here to
give precise content to this thought. Nevertheless, it might be as well to add
that the considerations which prompt this suggestion in relation to the
recognition of Jordanian interests in the Old City do not necessarily move in
the same way as regards other interests in the Old City. For one thing, if the
gesture is thought of in terms of the flying of a Jordanian flag in the
environs of the principal Moslem Holy Places, it may be recalled that the
representative, for example, of the Holy See is already entitled to fly the
Papal flag upon his official residence. For another, any move of this kind in relation
to Jordan would partly be warranted by the fact that there is in the Old City
of Jerusalem a substantial Arab population with, it may be assumed, basically
Jordanian sympathies. The same consideration does not prevail in relation to
any of the other parties interested in the Old City.
Once general and largely symbolic matters such as
sovereignty are set aside, the substantive content of any assurance or guarantees
regarding the Holy Places can readily be deduced from a
60
number of texts which reflect the
nature of the international concern for the Holy Places. The texts in question
are: the Mandate for Palestine, 1922; the U.N.S.C.O.P.
proposals as subsequently incorporated in the Partition Resolution of
November, 1947; the Draft Declaration concerning the Holy Places etc. outside
Jerusalem, proposed by the U.N. Conciliation Commission on 2nd September,
1949;1 the Israeli and Arab Declarations made respectively on 8th
and 25th November, 1949; 2 the Draft Agreement between the U.N. and
Israel annexed to Israel's draft resolution of 25th November, 1949; 3 the
Netherlands Swedish draft resolution of 5th December, 1949; 4 the
Cuban draft resolution of 6th December, 1949;5 certain provisions
(particularly Article 33) of the draft Statute for the City of Jerusalem
approved by the Trusteeship Council on 4th April, 1950; 6 the
Israeli proposal submitted to the Trusteeship Council on 26th May, 1950; 7 and
the Swedish draft resolution of 5th December, 1950. 8
These texts are
clearly of much more value in dealing with the specific detail of the Holy
Places in the Holy Land than are such important, but nonetheless general,
unrelated and therefore less pertinent precedents, like the Conciliation
Treaty and the Concordat concluded on 11 th February, 1929, between the Holy
See and Italy. 9
With some variation in wording, these texts, in one way or another, provide for respect for the Holy Places; the maintenance of the vested rights of the various denominations; freedom of access to and worship at the Holy Places; and exemption of the Holy Places from taxation. The expansion of these basic concepts into acceptable form in any text on which general political
1 G.A.O.R., 4th Session, Annexes, Agenda Item 18, p. 30.
2 'Ibid., p. 31.
3lbid., p. 46 (A/AC.31/L.42).
4 Ibid., p. 60 (A/AC.31/L.53).
5 Ibid., p. 62 (A/AC.31/L.57).
8 Trusteeship Council Resolution 232 (VI).
7 G.A.O.R., 5th Sess., Suppl. No. 9, p. 29, at p. 32.
8 G.A.O.R., 5th Sess., Annexes, Agenda Item 20, p. 1 (A/AC.38(L.63).
9 For English translation, see Royal Institute of International Affairs, Documents on International Affairs, 1929, pp. 216 and 227.
61
agreement could be reached would not appear to be a matter
of any special difficulty.1
(b) SUPERVISION
The provisions dealing with supervision
and with settlement of differences, although they have a slightly more complex
history, should not give rise to greater difficulties.
When in November 1949 the U.N.
Conciliation Commission requested the Arab Governments and the Government of
Israel to give formal guarantees concerning the Holy Places, the Governments
were invited to subscribe to a draft declaration on the subject which the
Commission had prepared. 2 The draft after referring to the main
substantive headings (mentioned in the preceding section) proposed that (a) the
implementation of its provisions should be under the supervision of a U.N. Commissioner
and (b) disputes regarding the interpretation of the Declaration should be
settled by the Tribunal which was contemplated in the Instrument then under
consideration for the establishment of a permanent international regime for the
Jerusalem area and, pending the setting up of this tribunal, should be reported
to the Secretary-General of the U.N. for reference to the appropriate organ of
the U.N.
Both Israel and the Arab States
gave undertakings regarding the substantive matters in the Declaration. In
their reply the Arab Governments adopted the wording of the substantive
articles, but completely omitted, without any explanation or comment, the
articles dealing with supervision and settlement of differences. The Israeli
reply, while similarly limiting itself to acceptance of the substantive
provisions, explained that, in view of the pending discussion of the subject in
the General Assembly, it would be better to take up the actual formulation of
the Declaration "in the light of the situation soon to be clarified."
However, when the Government of
Israel commented in detail upon the Conciliation Commission's own draft
instrument
1
It may be noted in passing that none of the texts has shown any particular
concern with the position of the religious communities as a matter distinct
from the status of and access to the Holy Places. Thus, not every religious
interest is likely to be reflected in the instrument of assurance.
2 G.A.D.R., 4th Session, Annexes,
Agenda Item 18, p. 30 (A/1113).
62
establishing a permanent regime for the Jerusalem area, l
i.e. for the implementation of the idea of territorial internationalization,
it made the following remarks:
"Articles 15 to 20 describe
the responsibility of the United Nations Commissioner for the protection of
Holy Places, religious buildings and sites. It is noticeable that those
articles are completely self-sufficient and are not related to any of the other
provisions of the instrument. Their implementation in no sense requires the
exercise by a United Nations commissioner of full and permanent authority, or
the operation of his organs and courts in any secular field. This fact is in itself clear and
convincing proof that the exercise of United Nations responsibility for the
safeguarding of Holy Places can be implemented without any of the
administrative or judicial intrusions envisaged by the Commission in the
secular life of Jerusalem. Neither the permanent Commissioner nor the General
Council, nor the International and Mixed Tribunals, nor demilitarization, are
in the slightest degree essential to the protection under international
auspices of Holy Places and sites.” 2
Admittedly, these comments were
made in the context of a much further reaching set of proposals than it may be
hoped will again be considered in this context by the General Assembly. The
comments indicate quite clearly that whatever external organ may be responsible
for supervision, it should be concerned with that task only, and not with the
performance of any role in the ordinary administrative life of the City. As the
Israeli comments suggest a few lines later, "the supervision of the
agreement on behalf of the United Nations should be the concern of a representative,
and not of a commissioner endowed with executive powers." 3
In all subsequent proposals for
"functional" as opposed to "territorial"
internationalization, provision is made for a U.N. representative or
commissioner, whose functions were, in the Israeli proposals of 25th November,
1949, to be limited to the "exercise (of) the rights and duties conferred
upon the United Nations." 4 The
Netherlands-Swedish draft of December 1949
1 Ibid., p. 10 (A/973).
2 Ibid., p. 42 (A/AC.31/L.34, para. 65).
3
Ibid., para.
66.
4 Ibid., p. 46 (A/AC.31/L.42, Annex).
63
proposed a Commissioner with supervisory functions and
very limited executive powers.1 A similar suggestion was made in the Cuban
draft Statute of 6th December, 1949.2 In the proposals made in May 19501
the Israeli Government proposed the appointment of a U.N. representative who
“should constitute an independent
authority deriving its powers solely and exclusively from the General Assembly
itself and exercising these functions in the international right without
dependence on any individual government or accreditation thereto.”
However, there may have been some
subsequent stiffening of the Israeli position in this connection, and it should
not therefore be assumed that there would be no difficulty from the Israeli
point of view in accepting the appointment of a U.N. Commissioner or
representative with the function of supervising the rights of access to and
worship at the Holy Places, and with power to request the Israeli Government to
suspend any laws or acts which impair the exercise of those rights and to call
upon the religious denominations to keep the Holy Places in repair.
(c) DISPUTES
The disputes for the settlement of
which it is desirable that provision should be made in any future arrangements
fall into two categories:
First, there are those disputes
which can arise between the various religious denominations themselves about
the enjoyment of their respective rights in the various Holy Places. As the
following summary taken from Chapter 3 of the U.N.S.C.O.P. Report shows, these
disputes can be complex and have in the past given rise to major international
controversy. It also shows that, with one exception, the decisions in this
class of case have been taken by the local secular authority.
"6. In the absence of the
special commission for which article 14 of the Mandate provided, the
responsibility of settling difficulties and disputes connected with existing
rights devolved entirely upon the Government. The Palestine (Holy Places) Order
in Council of 1924 withdrew from the law courts of
1 Ibid., p. 60 (A/AC.31/L.53).
2 A/AC.31/L.57, Arts 7 and 8.
3 G.A.O.R., 5th Sess., Suppl. No. 9, p. 29, at p. 33.
64
Palestine any `cause or matter in connection with
the Holy Places or religious buildings or sites in Palestine or the rights or
claims relating to the different religious communities of Palestine.'
Jurisdiction was vested in the High Commissioner, whose decisions were `final
and binding on all parties.'
"7. The claims in connection with the Holy Places, religious
buildings or sites, or religious communities have been determined by the
mandatory Government on the basis of rights and practice
existing during the Ottoman regime. When the Government's
decision has not been accepted, a formal protest has been made by the
interested community and it has been recorded that no change in the status quo was held to have occurred.
"8. As regards the Christian
Holy Places, century-long controversies between Powers sponsoring the
respective Roman Catholic and Greek Orthodox interests were settled on the
basis
of the status quo at the end of the Crimean War; but they were not settled
between the religious communities themselves. The report of the international
commission appointed by the British Government, with the approval of the
Council of the League of Nations, to determine the rights and claims of Moslems
and Jews in connection with the Wailing Wall l summarises as follows the
history of the establishment of the status quo and its present application as regards the Christian Holy
Places:
"At the conclusion of peace
(in 1855, after the Crimean War) the matters in dispute being still left
undecided were submitted to the signatory Powers, who undertook to guarantee
in every respect the status quo ante belhrm. The question of the protection of the Holy Places
was again discussed during the peace negotiations at the conclusion of the
Russo-Turkish War (1878). At that time it
was laid down in the Peace Treaty itself that no alterations were to be made in
the status
quo without the
consent of the signatory Powers. In 1878 as well as in 1855 indications as to
the administration of the status quo were based upon the same rules as those that had been
proclaimed in the decree (firman) issued by the Sultan of Turkey in 1852, which were in
conformity in the main with a preceding frrman of 1757 . .
1 “Report of the Commission
appointed by His Majesty's Government in the United Kingdom of Great Britain
and Northern Ireland, with the approval of the Council of the League of
Nations, to determine the rights and claims of Moslems and Jews in connection
with the Western or Wailing Wall at Jerusalem: December, 1930.” (London, 1931),
p. 34. (The Commission was constituted as follows: M. E. Lofgren (Sweden), M.
Charles Barde (Switzerland), M. C. J. van Kempen (Netherlands).) Reproduced as U.N. doc.
S/8427/Add.l *, 28th Feb., 1968.
65
"As apportioned between the
three principal Christian rites, viz., the Orthodox Greek Rite, the Latin (or
Roman Catholic) Rite and the Armenian Orthodox Rite, the Holy Places and their
component parts may be classified into the following categories:
(a) Certain parts which are
recognised as property common to the three rites in equal shares.
(b) Other parts as to which one
rite claims exclusive jurisdiction, while other rites claim joint
proprietorship.
(c) Parts as to which the
ownership is in dispute between two of the rites.
(d) Finally, parts the use or
ownership of which belongs exclusively to one rite, but within which other
rites are entitled to sense or carry out ritual services up to a limited extent
in other ways.
"Certain strict principles
are adhered to in the administration of the status quo. Thus, . . . a right
granted to hang up a lamp or a picture or to change the position of any such
object when hung is regarded as a recognition of exclusive possession of the
pillar or the wall in question ...
"It is easy to understand
that the application of `rights' of this nature must lead to great difficulties
and often to litigation, especially as each alteration de facto in the prevailing practice might serve as a proof that the
legal position has been altered. Therefore, the Administration has had a
difficult task both in ascertaining and in maintaining the status quo. In controverted cases the objects in dispute have been
sometimes allowed to fall into decay rather than risk the possibility that any
alteration of the balance of power between the contestant rites should be
permitted to ensue. Hence, if the carrying out of repairs becomes urgent, it
devolves upon the Administration to have them attended to, supposing it proves
not to be possible in the individual case for the parties concerned to come to
an amicable agreement.'
"9. The status quo-as far as
it has been possible to ascertain what that consists in-has also been applied
by the Palestine Administration as regards Moslem or Jewish sacred places and
sites, which have been objects of dispute between Arabs and Jews, particularly
the Wailing Wall at Jerusalem and Rachel's Tomb near Bethlehem.
"10. It must be noted that in
disputes between the Christian communities, as well as between the Moslem and
Jewish communities the Mandatory Administration like its predecessor, the
66
Ottoman Government, possessed the
police forces necessary to impose its decisions and generally to prevent
religious disputes from resulting in religious strife."'
The generality of the Israeli
rejection of the Conciliation Commission's proposals that a U.N. Commissioner
be competent in such cases 2 could be read as amounting to an assertion that Israeli
courts should have jurisdiction to settle such disputes. There is, however,
some evidence of a modification of this view in the terms of the Israeli
proposal of 25th November, 1949 3 which,
while providing that such disputes should in the first place be referred to the
Government of Israel, contemplates that if the issue is not thereby settled it
can be referred to the General Assembly.
Israel appears to have had further
thoughts on this question, prompted perhaps by the suggestion in the
Netherlands-Swedish draft 4 that this class of dispute should be
settled by a U.N. Commissioner. The Israeli memorandum to the Trusteeship
Council of 26th May, 1950,1 commenting on the draft Statute for
Jerusalem prepared by the Trusteeship Council, puts forward an alternative
proposal which suggests that a U.N. representative should, inter alia,
adjudicate upon disputes between communities as to their rights in the Holy
Places.
While it is possible that Israel
might no longer feel that it would be right to vest this class of jurisdiction
in the U.N., one can still see reasons why Israel should not herself become involved
in disputes arising between the various religious denominations. In so far as
they arise between non-Jewish groups, it may be better that they should not be
decided by Jewish authorities; and in so far as they affect relations between
Jewish and non-Jewish interests, there may again be advantage in having them
decided by a non-Israeli body.
The second category of foreseeable
disputes comprises those which may arise out of the interpretation and
application of the instrument containing the regime for the Holy Places. Such disputes
would arise primarily between the State of Israel, on the one hand, and the
U.N. or some particular State on the
1 G.A.O.R., 2nd Sess., Supp. No. 11, pp. 36-37.
2 See p. 63 above.
3 Section 19. See Appendix 1 at p. 79 below
4 Loc. cit. p. 61 n. 4 above.
5 G.A.O.R., 5th Sess., Suppl. No. 9, p. 29.
67
other; and would involve the application not of local, but
of international, law. In general terms, in common with all other international
disputes, it is desirable that such cases should be settled by international
judicial means. This may involve either reference to the International Court of
Justice or the establishment of a special arbitral body. But in the absence of
any evidence of willingness by any Arab State to accept compulsory
international settlement of disputes, it is not easy to make out a convincing
case to persuade Israel to agree to expose herself in this way to international
judicial or arbitral proceedings. If the obligatory jurisdiction of an
international tribunal were in fact accepted by Israel, it would in all
likelihood have to be made conditional upon strict reciprocity.
(b) A POSSIBLE DECLARATION AND STATUTE CONCERNING THE HOLY
PLACES
Since it is commonly found that
general ideas can more readily be assessed when presented in a specific form, 1
have ventured to prepare a somewhat tentative draft of the sort of Declaration
and Statute which might give effect to some of the ideas canvassed in this
Chapter.
INTRODUCTION
TO THE DRAFT DECLARATION AND STATUTE
CONCERNING
THE HOLY PLACES
There are two ideas underlying
this draft Declaration and Statute.
First, there should exist some
instrument setting out in detail the status of the Holy Places in Jerusalem I and the special
rights and privileges of the religious communities actively associated with
them. This is the function of the draft Statute.
Second, this instrument should be
given some international status, both so that its provisions may stand as
international commitments of Israel and so that Israel may reciprocally expect
that other States will not act in a manner prejudicial to the terms of the
Declaration or seek to overthrow the situation underlying it. This is the
function of the draft Declaration.
1 The ideas elaborated here are restricted to the Holy Places in Jerusalem. Shrines elsewhere in Israel have a different background. Moreover, any geographical extension of these proposals would necessarily raise difficult questions regarding Jewish shrines in Arab territory outside Jerusalem.
68
It is contemplated that the Statute would need to be incorporated
into the law of Israel by legislation.
The reasons which support this
form of approach have already been indicated. The principal alternative would
have been some sort of international treaty formally embodying the results of
an international negotiation. Clearly, there would be considerable
difficulties about determining which States and other interested bodies should
participate in this negotiation. Further, formal discussions on the
international level would certainly be much prolonged. Accordingly, since the Government of Israel has already
been able to discuss matters in some detail with some of the principal
interested parties, it appears simpler that the settlement should be
incorporated in a unilateral offer by Israel to regulate her conduct and the
treatment of the Holy Places on a basis which she already understands to be
largely acceptable to those most immediately connected with the problem.
At the same time, in recognition
of international interest in the problem, Israel would in effect offer the
States of the world the opportunity to become parties to the settlement and to
take advantage, on a basis of reciprocity, of the procedure for the judicial
enquiry set out in the Declaration.
However, it should be appreciated
that, although for international purposes the Statute is appended to the
Declaration, the Statute is nonetheless independent of the Declaration. The
Statute would govern Israel's treatment of the Holy Places regardless of
whether the States of the world were prepared to signify their approval of the
principles therein stated and irrespective of whether such States might desire
to take advantage of the opportunity of invoking the jurisdiction of the International
Court of Justice.
DRAFT DECLARATION ACCOMPANYING THE STATUTE
1 The text of the Declaration and the Statute would be communicated to the Secretary-General of the United Nations. See para. 4 of the text of the Declaration.
69
2. The present Declaration
constitutes an international undertaking by the Government of Israel to act in
conformity with the Statute. This undertaking will be effective as between
Israel and those States which indicate their acceptance of the Statute and
themselves undertake neither to act, nor to permit on their territories any
action, l contrary to the letter and intent of the Statute.
3. The Government of Israel
accepts the jurisdiction of the International Court of Justice in relation to
any dispute which may arise between any State accepting the Statute and Israel,
subject only to such State having declared that it reciprocally accepts the
jurisdiction of the International Court of Justice in relation to its
obligations under paragraph 2 above.2
4. The present Declaration will be
registered with the Secretariat of the United Nations pursuant to Article 102
of the Charter of the United Nations.
DRAFT STATUTE. CONCERNING THE HOLY
PLACES
1. The present Statute relates to
the Holy Places in Jerusalem.
2. For the purpose of this Statute
"Commissioner" shall
mean the Commissioner of Holy Places appointed pursuant to Article 7 hereof.
"Community" shall
include any religious body, brotherhood, order or organization with an
established interest in the Holy Places.
"Council" shall mean the
Council of the Holy Places established pursuant to Article 8 hereof.
"The Holy Places" are
those buildings, sites, structures and localities listed in Column 1 of the
Schedule to this Statute
1
It seems reasonable that, at any rate in relation to the Arab States which have
been making war upon Israel, Israel should ask for a reciprocal undertaking
that such States will not allow their territories to be used as a basis for the
preparation of acts designed to overthrow the system underlying the Statute. At
the same time, it is possible that other States, having no real connection with
the Arab attacks upon Israel, might find it difficult to incorporate this
undertaking in their municipal law. It may, therefore, be necessary to
reconsider the formulation of this provision.
2
For the reasons set out above, this is a provision which Israel might not find
it easy to include.
70
traditionally subject to the jurisdiction of the religion,
order, or body listed in Column 2 of the said Schedule. 1
The Minister of Religious Affairs
of the State of Israel shall have the power to amend the Schedule by adding to
or removing from it the name of any Holy Place or by modifying
the description of the body to whose jurisdiction the
place is deemed to be subject, but the Minister shall not remove the name of
any Holy Place save after a determination in that sense by the Commissioner of
Holy Places, and the Minister shall not modify the description of the body to
whose jurisdiction a Holy Place is deemed to be subject without either the
consent of the body to whose jurisdiction the Holy Place was theretofore deemed
to be subject or an appropriate determination by the Commissioner of Holy
Places.
FREEDOM OF ACCESS TO THG HOLY PLACES IN JERUSALEM
4. (1) There shall be freedom of access to the Holy Places in
Jerusalem for all persons without discrimination as to faith, nationality, race
or colour.
(2) The Government of Israel will ensure that there shall be
free and ready movement by available and convenient routes of transport to and
from Jerusalem from and to stated points of arrival in and departure from
Israel.
(3) Persons entering Israel for the sole purpose of visiting
the Holy Places may do so without visa for periods not exceeding twenty-one
days. Persons intending to visit other places or to remain in Israel for longer
than twenty-one days shall satisfy the entrance requirements normally
applicable to visitors to Israel.
(4) All visitors to Israel, whether to the Holy Places
exclusively or to other places in Israel, are at all times subject to the
operation of the laws of Israel, as modified by the terms of this Statute.
(5) The Government of Israel reserves the right to exclude
entirely or limit the period of visit of any person claiming to visit the Holy
Places if the Government of Israel believes that
1
This Schedule, which is not appended to the present Draft, should be
sufficiently detailed so as to avoid, or at any rate limit, dispute as to the
places which benefit from the Statute.
71
the visit of any such person is or may be prejudicial to
the security of the State of Israel, or if the entry of such person into Israel
would be contrary to existing Israeli health regulations. Any person thus
excluded may require the Government of Israel to state its reasons to the
Commissioner for the Holy Places.
(6) It shall be no excuse or
justification in law for a person found in Israel without having satisfied the
formal entry requirements to claim that he was visiting or intending to visit
the Holy Places.
THE
HOLY PLACES
5. (1) There shall be complete freedom of attendance at and
worship in the Holy Places.
(2) No form of
racial or religious discrimination shall be permitted with respect to the
rights of visit and access to any of the Holy Places, except in so far as the
performance of certain religious rites and ceremonies may require the exclusion
from them of the adherents of other faiths during the performance of such
religious rites and ceremonies.
(3) The Holy
Places in Israel shall remain in the custody and subject to the jurisdiction of
the communities who by law and custom have exercised rights in and over them. The
rights and interests of all communities in the Holy Places in Israel shall be
as they were on the 14th May, 1948, subject only to such agreed or otherwise
lawful changes as may since have taken place.
(4) Any dispute between the communities as to rights in or over
the Holy Places shall be determined by the Commissioner for the Holy Places
[or some other special jurisdiction]' upon hearing all interested parties and
after receiving the advice of the Council for the Holy Places. Any decision of
the Commissioner in this regard shall be recognised as valid and binding under
the law of Israel and shall be enforceable by process in the civil courts of
Israel.
(5) The organization of and the conduct of services in the Holy
Places shall be regulated exclusively by the personnel of the community or
communities exercising rights in and over the Holy Place.
1 See above, p. 67.
72
(6) Any fees charged or payments
required for access to the Holy Places shall not exceed those which have in the
past been customary; and questions arising in this connection shall be
determined by the Commissioner upon the advice of the Council.
(7) Any act or omission occurring
in a Holy Place which would if it had occurred outside a Holy Place constitute
a civil or criminal wrong under the law of Israel shall fall within the
jurisdiction of the Israeli courts applying the law of Israel.
(8) The Israeli public
authorities, whether police or other, will not enter the Holy Places save with
the consent or at the invitation of the head or acting head of the community in
charge of such Holy Place. Such consent shall not be necessary in circumstances
of emergency, that is to say, the occurrence of violent crime, riot, civil
commotion, fire or other comparable event, or the reasonable anticipation
thereof.
(9) The income and receipts of the communities controlling
the Holy Places shall not be subject to income tax in Israel.
(10) The Holy Places and premises
occupied in connection with the Holy Places shall not be assessed to rates
save in respect of the provision of police protection and fire or sanitary
services.
(11) The communities responsible
for the Holy Places shall pay reasonable and non-discriminatory rates for all
other municipal services.
THE
PERSONNEL OF THE HOLY PLACES
6. (1) The organization of the communities having rights in the
Holy Places shall be governed exclusively by the rules of each such community.
(2) Whoever by the rules of each such community is its head in
the Holy Places in the territory of Israel or the occupied areas shall serve as
the representative of that community in the Council of the Holy Places.
(3) The communities shall have exclusive jurisdiction over
their personnel in all matters which are traditionally the subject of
regulation by the rules of the communities. In all other respects the law of
Israel shall be applied. Any question
73
arising
as to which body of law is applicable shall be determined by the Commissioner,
whose certificate in the matter shall be accepted as final and conclusive.
(4) The freedom of dress and habit of the personnel of
the communities is guaranteed as heretofore, as is their movement throughout
Israel and in particular from one Holy Place under their charge to another.
(5) There shall be freedom of communication between
the communities and their parent organizations outside Israel.
THE COMMISSIONER OF THE HOLY PLACES
7. (1) There shall be a Commissioner of Holy Places
(hereinafter called the Commissioner) with the following functions
(i) To exercise a general supervision over the
application of the present
Statute;
(ii) To preside over the Council;
(iii) To represent the Council;
(iv) To report annually to the Secretary-General of
the United Nations;
(v) To make
such representations or proposals as he may at any time think
necessary
or desirable to the Government of Israel, or to the Council,
with a
view to ensuring the fullest achievement of the objects of this
Statute.
(vi) Generally, to perform any other functions conferred
upon him by the
present
Statute.
(2) The Commissioner shall be appointed by the
Secretary-General of the United Nations and shall be paid by the United Nations.
The assumption of his duties by the Commissioner shall be subject to the
agreement of the Government of Israel. If this is withheld, the
Secretary-General shall make another appointment.
(3) The Commissioner shall hold office for a period of
three years from the date of his appointment. Subject to the continuing
agreement of the Government of Israel, the Commissioner may be re-appointed
for a further period or periods.
(4) The Commissioner shall enjoy while in Israel or in
territories under Israeli control or occupation the same privileges and
immunities as are accorded to the head of a foreign diplomatic mission
accredited to the President of Israel.
74
(5) The Government of Israel will accord to the Commissioner
all facilities that he may require for the due discharge of his functions.
THE COUNCIL OF THE HOLY PLACES
8. (1) There shall be a Council of the Holy Places consisting
of the heads of the communities interested in the Holy Places.
(2) The
Council shall perform the functions placed upon it by the present Statute, and
shall serve as the organ for the representation to the Commissioner of the
collective views of the religious communities interested in the Holy Places.
Each community shall however remain entitled to present its views on any matter
affecting it directly to the Commissioner or to the Israeli authorities.
(3)
Communications on municipal matters shall take place between the religious
communities and the local municipal authorities. On all other matters the
communities shall communicate with the Israeli Ministry of Religious Affairs.
CONSIDERATIONS OF SECURITY
9. The provisions of this Statute are subject to the
interests of the security of Israel and, in particular, so long as the United
Arab Republic, Syria, Lebanon, Jordan, Iraq or any other State maintains with
Israel a state of war or belligerency, whether or not accompanied by
hostilities; and the State of Israel shall be entitled for such security
purposes within limits dictated by the exigencies of the circumstances to
restrict the liberties herein guaranteed. The Commissioner shall hear any
complaints which any community may make in this connection and may, if he
thinks fit, refer the same to the Government of Israel.
75
APPENDICES
The texts which appear below show that for nearly
twenty years there have existed firm proposals, involving a measure of U.N.
supervision, on the basis of which Israel could assume clear international
commitments in connection with the Holy Places. The Israeli draft agreement of
1949 (Appendix I) may not in all its details represent what Israel would to-day
put forward, but it and the Swedish proposal represent two ways in which the
universal interest in Jerusalem could be recognized. The Swedish proposal
(Appendix II), though never put to the vote (see p. 31 above), was nonetheless
in its essential elements basically acceptable to the United Kingdom, the
U.S.A. and Uruguay, as is shown by the terms of their proposed amendment
(Appendix III).
The texts are reprinted here because readers without
access to libraries with U.N. materials may not otherwise readily be able to
find them.
APPENDIX I
ISRAEL: DRAFT RESOLUTION
U:N. doc. A/AC.31/L.42
(Original text: English)
(25 November 1949)
The General Assembly
1. Recalling its successive resolutions which expressed the concern of the United Nations in Jerusalem by reason of the presence therein of Holy Places, religious buildings and sites;
2. Noting that the Declaration of Independence of Israel of 14 May 1948, provides for the protection of the Holy Places of all religions;
3. Desiring to maintain the existing rights in the Holy Places, and in particular those rights and practices in force 14 May 1948, and thus to give effective and practical expression to that concern,
4.
Resolves therefore:
(a) To authorize the Secretary-General to sign on behalf of the United Nations an agreement (as attached) with the State of Israel relating to the supervision and protection of the Holy Places in Jerusalem;
(b) To request the Secretary-General to report to the fifth regular session on progress made with respect to the signature and implementation of this agreement.
ANNEX
TEXT OF DRAFT AGREEMENT BETWEEN THE UNITED NATIONS
AND ISRAEL
Article 1
Definitions
Section 1
In this Agreement:
(a) The expression "The Holy Places" means those places, buildings and sites in Jerusalem which were recognized on 14 May 1948 as Holy Places and any other places, buildings or sites which may subsequently be considered as such by agreement between the parties;
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(b) The expression "United Nations" means the international organization established by the Charter of the United Nations;
(c) The expression "Secretary-General" means the Secretary-General of the United Nations;
(d) The expression "Jerusalem" means the part of Jerusalem now under Israel control.
Section 2
The parties shall establish by mutual agreement a detailed list indicating what were the Holy Places in Jerusalem on 14 May 1948 for the purposes of this Agreement, and in the same way may amend such list by additions or by deletions.
ARTICLE 2 Maintenance of existing rights
Section 3
The free exercise in Jerusalem of all forms of worship in accordance with the rights in force on 14 May 1948, subject to the maintenance of public order and decorum, shall be guaranteed by law and effectively secured by administrative practice in conformity with the Declaration of Independence of Israel.
ARTICLE 3 Preservation of the Holy Places
Section 4
The Holy Places in Jerusalem shall be preserved, and no act shall be permitted which may in any way impair their sacred character. If at any time it appears to the Government of Israel that any Holy Place, religious building or site is in need of urgent repairs, it may call upon the religious community or communities concerned to carry out such repairs. The Government may carry out such repairs itself at the expense of the religious community or communities concerned, if no action is taken within a reasonable time.
Section 5
The Government of Israel shall take all reasonable steps to ensure that the amenities of the Holy Places in Jerusalem and their immediate precincts are not prejudiced.
ARTICLE 4 Access to the Holy Places
Section 6
No form of racial or religious discrimination shall be permitted with respect to the rights of visit and access to any of the Holy Places, except in so far as the performance of certain religious rites and ceremonies may require the exclusion from them of the adherents of other faiths during the performance of such religious rites and ceremonies.
Section 7
Subject only to requirements of
national security, public order and decorum, health, liberty of access, visit
and transit to the Holy Places in Jerusalem shall be accorded to all persons
without distinction in respect of nationality in conformity with the rights in
force on 14 May 1948.
Section 8
The Secretary-General and the Government of Israel shall, at the request of either of them, consult as to methods of facilitating entrance into Israel, and the use of available means of transportation, by persons coming from abroad who wish to visit the Holy Places. This shall not prevent the Government of Israel from making suitable arrangements directly or with other States for any of these purposes.
Section 9
Nothing in this Agreement shall affect in any way the application of laws and regulations from time to time in force in Israel regarding the entry of aliens, or to confer any right of entry into Israel otherwise than in accordance with such laws and regulations, or any modifications thereof, and with the terms of any international obligations assumed by Israel in this regard.
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ARTICLE 5
Protection of Holy Places
Section 10
(a) The Government of Israel
shall exercise due diligence to ensure that the sacred character of the Holy
Places in Jerusalem is not disturbed by the unauthorized entry of groups of
persons from outside or by disturbances, and shall cause to be provided such
police protection as is required for these purposes.
(b)
If the Secretary-General is of opinion that additional police protection is
required for any of the Holy Places in Jerusalem, or for any area of Jerusalem
in which a number of Holy Places are situated within a reasonable degree of
propinquity, he may request the Government of Israel to increase the number of
policemen regularly stationed for the protection of such Holy Places or area.
ARTICLE 6
Law and authority in relation to the Holy Places
Section I1
(a) The law of Israel including
regulations and by-laws made by the local authorities shall apply to and within
the Holy Places in Jerusalem.
(b)
The Israel Courts shall have jurisdiction over acts done and transactions
taking place within the precincts of the Holy Places.
ARTICLE 7
Public services
Section 12
The
Government of Israel will exercise the powers which it possesses to ensure, at
the request of the Secretary-General, that the Holy Places shall be supplied on
equitable terms with the necessary public services, electricity, water, gas,
post, telephone, telegraph, transportation, drainage, collection of refuse,
fire protection, etc. In case of any interruption or threatened interruption of
any such services, the Government of Israel will consider the needs of the Holy
Places to the extent practicable, and subject to the requirements of security
and the maintenance of essential services and supplies.
Section 13
Nothing
in this Agreement shall be interpreted as restricting the rights of the
Government of Israel or any local authority, or any of their agencies or subdivisions,
officials or employees, with regard to entry into any Holy Place in Jerusalem
for the purpose of enabling them to inspect repair, maintain, reconstruct and
relocate utilities, conduits, mains and sewers, which may run over, through, or
under such Holy Places, religious building or site.
ARTICLE 8
Exemptions
Section 14
No
form of taxation shall be levied in respect of any Holy Place in Jerusalem
which was exempt from such taxation on 14 May 1948. No change in the
incidence of any form of taxation shall be made which would discriminate
between the owners and occupiers of Holy Places, religious buildings or sites
in Jerusalem, or would place such owners and occupiers in a position less
favourable in relation to the general incidence of that form of taxation than
existed on 14 May 1948.
ARTICLE 19
United Nations representative
Section 15
The
Secretary-General and the Government of Israel shall settle by agreement the
channels through which they will communicate regarding the application of the
provisions of this Agreement and other questions affecting the Holy Places in
Jerusalem, and may enter into such supplemental agreements as may be necessary
to fulfil the purpose of this Agreement.
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Section 16
Israel hereby agrees that if the Secretary-General
so requests he may appoint and send a representative to Israel to exercise the
rights and duties conferred upon the United Nations by this Agreement. In
making such appointment the Secretary-General shall have due regard for the
accepted international custom relating to the appointment of diplomatic
representatives. Such representative may establish his headquarters in
Jerusalem or in some other place agreed between him and by the Government of
Israel, and shall be accredited to the President of Israel. For the duration of
his mission the Convention on the Privileges and Immunities of the United
Nations approved by the General Assembly of the United Nations on 13th February
1946, as acceded to by Israel, shall be applicable to him as well as to his
staff and to the buildings he occupies, all as is more particularly laid down
in the said Convention on the Privileges and Immunities of the United Nations,
it being understood that nothing in this agreement shall imply the extension of
the provisions of the said Convention to any Holy Place.
Section 17
The functions of the representative of the
Secretary-General shall be limited to matters pertaining to the application and
implementation of this Agreement; in particular it is understood that nothing
shall authorize the United Nations or the Secretary-General or his
representative, to intervene in matters which are essentially within the
domestic jurisdiction of the State of Israel, or shall require the Government
of Israel to submit any such matters to settlement under the Charter of the
United Nations or under this Agreement.
ARTICLE 10
Settlement of disputes
Section 18
Any dispute between the United Nations and Israel
concerning the interpretation or application of this Agreement, or of any
supplemental agreement, including any dispute as to whether any place in
Jerusalem was recognized on 14 May 1948 as a Holy Place which is not settled by
negotiation, or other agreed mode of settlement, shall be referred for final
decision to a tribunal of three arbitrators, one to be named by the Secretary-General,
one to be named by the Minister far Foreign Affairs of Israel, and the third to
be chosen by the two, or if they should fail to agree upon a third, then by the
President of the International Court of Justice.
Section 19
Subject to the provisions of section 10, where any
dispute concerning a Holy Place, religious building or site in Jerusalem arises
between two or more religious communities, or sections of communities, such
dispute shall, in the first instance be referred to the Government of Israel
which may, in reaching its decision, seek the guidance of the United Nations.
If the decision of the Government of Israel does not settle the dispute, than
either Israel or the Secretary-General may refer the matter to the General
Assembly.
ARTICLE 11
Final provisions
Section 20
This
Agreement shall be construed in the light of its primary purpose to ensure
protection of the Holy Places in Jerusalem, which is desirable, in view of the
special character of Jerusalem, whose soil is consecrated by the prayers and
pilgrimages of the adherents of three great religions.
Section 21
This
Agreement shall be brought into effect by an exchange of notes between the
Secretary-General, duly authorized pursuant to a resolution of the General
Assembly of the United Nations, and the appropriate executive officer of
Israel, duly authorized pursuant to appropriate action of the Knesseth.
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IN WITNESS WHEREOF the respective representatives have signed this Agreement
and have affixed their seals hereunto.
DONE in duplicate, in the English, French, Hebrew and
Spanish languages, all authentic, at Lake Success, this .. day of .. in the
year one thousand nine hundred and ..
APPENDIX 11
SWEDEN: DRAFT RESOLUTION
(Original text: 6nglish)
(5 December 1950)
The General Assembly
Recognizing the unique spiritual and religious
interests of the world community in the Holy Land,
Desiring to preserve the peace of Jerusalem,
Considering its resolutions 181 (II) of 24
November 1947, 194 (III) of 11 December 1948 and 303 (IV) of 9 December 1949,
Having regard to the special report of the
Trusteeship Council regarding the question of an international regime for the
Jerusalem area and protection of the Holy Places (document A/1286),
Considering that it has so far not been
possible to carry into effect the resolutions of the General Assembly with
regard to Jerusalem and the Holy Places,
Considering that any further delay in ensuring
international protection of the spiritual and religious interests of the world
community in the Holy Land is undesirable and that therefore, awaiting the
taking of final measures, it is appropriate to take such measures as will
henceforward ensure the respect of those interests;
Determining that for the purpose of this
resolution:
"Holy Land" means the
former mandated Territory of Palestine;
"Holy Places" means those
Holy Places and religious buildings or sites which were regarded in Palestine
on 14 May 1948 as Holy Places;
"Free Access" means those
rights of access and visit to which individuals and religious denominations
were entitled on 14 May 1948, together with facilities of transit to and from
Holy Places, whether these Holy Places are situated within or outside the
territory of the State granting facilities, subject always to the requirements
of public health, public security and decorum;
"Existing rights, immunities
and privileges" means such rights, immunities and privileges as existed on
14 May 1948;
"Jerusalem area" means the
city of Jerusalem as defined in section B of part III of the plan set out in
resolution 181 (II) of the General Assembly adopted 29 November 1947;
"Commissioner" means the
United Nations Commissioner appointed under article VI of Section B of the
present resolution;
Resolves
A.
To invite the governments of the States in the Holy Land to pledge themselves
before the United Nations to:
(a) Observe human rights and
fundamental freedoms and in particular freedom of thought, conscience and
religion as set forth in article 18 of the Universal Declaration of Human
Rights;
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(b)
Refrain from any act that would endanger the
Holy Places in their territories;
(c) Guarantee to nationals of their States, as well as
aliens, without distinction as to nationality, free access to Holy Places in
their territories;
(d) Observe and maintain all the existing rights,
immunities and privileges as provided in article II of section B of this
resolution;
(e) Levy no tax in respect of any Holy Places which are
exempt from such taxation on 14 May 1948, and make no change in the incidence
of any form of taxation which would either discriminate between the owners and
occupiers of different Holy Places or would place such owners and occupiers in
a position less favourable in relation to the general incidence of that form of
taxation than existed on 14 May 1948;
(f) Maintain and respect the property rights of religious
bodies;
(g) Reduce their armed forces in the Jerusalem area in
progressive stages with a view to their limitation to normal peacetime
requirements as provided in article VIII of section B of this resolution;
(b) Carry out in good faith the obligations and provisions
laid down in section B of this resolution, and co-operate fully with the
Commissioner in the task imposed on him by this resolution.
B. Lay down, in order to ensure the protection of and free
access to the Holy Places and the maintenance of existing rights, immunities
and privileges of religious demonstrations, the following articles:
ARTICL I
The Holy Places throughout the Holy Land shall be
preserved and no act shall be permitted which may in anyway impair their sacred
character.
ARTICLE II
Rights, immunities and privileges of religious
denominations with respect to Holy Places, as well as the rights, immunities
and privileges of religious bodies with respect to monasteries and missionary,
educational and welfare establishments now maintained by them, shall be
preserved as they existed on 14 May 1948.
ARTICLE III
1. The supervision of the
protection of and free access to the Holy Places and the maintenance of the
rights, immunities and privileges referred to in article 11, shall be the
responsibility of the United Nations.
2. The Commissioner appointed
pursuant to article VI shall exercise this supervision on behalf of the United
Nations and shall make arrangements with the governments concerned regarding
the implementation of the provisions of this resolution.
3. For the Jerusalem area such
arrangements shall be subject in particular to the provisions of articles VIII,
IX, X, XI and X1I. The Commissioner shall negotiate and conclude agreements
with the governments concerned in order to ensure that the appropriate
provisions of this resolution are carried into effect also in the Holy Land
outside the Jerusalem area. He shall report the results of his negotiations to
the Secretary-General of the United Nations.
ARTICLE IV
1. The Commissioner shall draw up
an authoritative list of Holy Places which were regarded as such on 14 May
1948. If any question arises as to whether any place, building or site was
regarded as a Holy Place on 14 May 1948, the Commissioner shall decide;
2. If any question arises between
any religious denominations in connexion with any Holy Place, the Commissioner
shall decide on the basis of existing rights;
3. Before taking any decision under
paragraph 1 and 2 of this article the Commissioner shall consult with members
of the panel of advisers as provided in article XIV. His decision shall be
final.
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4. If a place, building or site not regarded as a
Holy Place on 14 May 1948 is claimed by a religious denomination to be a Holy
Place of such character that it is entitled to enjoy the protection of this
statute, the Commissioner may propose to the Government concerned that such a
place, building or site be brought under the provisions of this resolution. In the event of the Commissioner
and the government concerned failing to reach agreement, the matter shall be
referred to the arbitral tribunal as provided in article XV.
ARTICLE V
Should
a visitor or pilgrim or a group of visitors and pilgrims be denied free access
to any Holy Place, the government denying access shall inform the Commissioner
of the reasons therefor.
ARTICLE VI
l. There shall be a United Nations Commissioner to be
appointed for a period of three years on the nomination of the
Secretary-General by a Committee of the General Assembly consisting of the
eleven members of the Security Council. This
Committee shall decide by a majority of the members present and voting. The
Commissioner shall be responsible to the General Assembly and may be dismissed
by it. He shall report annually to the General Assembly and may also make
special reports to the appropriate United Nations organs whenever he deems
necessary. His headquarters shall be the former Government House in Jerusalem.
2. There shall be appointed in the same manner a
Deputy Commissioner who shall be subject to the same terms of office, and shall
be responsible to the Commissioner. The Deputy Commissioner shall assist the
Commissioner and shall replace him in the event of his absence or disability.
3. The Commissioner and the Deputy Commissioner
shall not be selected from among nationals of the State of Israel or of an Arab
State or from among residents of the Jerusalem area.
4. The Commissioner shall be authorized to appoint
and employ under temporary contracts the auxiliary administrative personnel
necessary for the carrying out of his functions.
ARTICLE VII
The
functions of the Commissioner shall be to exercise the powers conferred upon
him by this resolution and to ensure its implementation.
ARTICLE VIII
l. The governments of the States administering the
Jerusalem area shall gradually reduce their armed forces in that area in
conformity with article VII of the General Armistice Agreement between the
Hashimite Kingdom of the Jordan and Israel of 3 April 1949 and shall limit
them, not later than three months after the coming into effect of a peace
settlement between the States administering the Jerusalem area, to normal
peacetime requirements;
2. Should the Commissioner be of the opinion that
the forces maintained by either party under paragraph 1 are above normal
peacetime requirements, he shall make representations accordingly to the
government concerned;
3. In the event of the Commissioner and the
governments concerned failing to reach agreement in the matter, it shall be
referred to the Security Council.
ARTICLE IX
The
jurisdiction and control of each part of the Jerusalem area shall be exercised
by the States concerned, subject to the powers of the Commissioner with respect
to this area and without prejudice to the rights and claims of either party in
the ultimate peaceful settlement for the area.
ARTICLE X
1. The Commissioner shall be empowered:
(a)
To request the governments in the Jerusalem area to modify, defer or suspend
such laws, ordinances, regulations and administrative acts pertaining to the
area, which in his opinion impair the protection of and free access to Holy
Places or the rights, immunities and privileges referred to in article II;
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(b) To request the governments to take such action or
to make such orders or regulations for the maintenance of public security and
safety as he deems necessary to ensure the protection of and free access to Holy
Places or the safeguarding of the rights, immunities and privileges concerned.
2. The governments shall carry into effect without
delay any such action which the Commissioner, in accordance with the provisions
of paragraph 1 of this article, deems necessary, for the protection of and free
access to Holy Places and the safeguarding of the rights, immunities and
privileges concerned.
3. If a government objects to a request made by the
Commissioner under this article, the matter shall be referred for a final
decision to the arbitral tribunal provided in article XV. The tribunal shall decide not
later than one month from
the
submission of a dispute. Without prejudice to the final decision of the
tribunal, provisional effect shall be given by the government concerned to the
action requested by the Commissioner.
4. The Commissioner shall immediately inform the
Secretary-General of the United Nations of any objection of a government to a
request made by him under this article.
ARTICLE XI
The
Commissioner shall be empowered to employ under temporary contracts a limited
number of guards for the performance of his functions in the Jerusalem area as
well as to assure his own security and that of his staff. These guards shall
not be selected from among nationals of the State of Israel or of an Arab
State. The salaries, allowances and
administrative expenses of the Commissioner, Deputy Commissioner, and the staff
of the Commissioner, including guards and administrative personnel, shall be
included in the annual budget of the United Nations. These salaries and
allowances shall be exempt from local taxation.
ARTICLE XII
The governments in the Jerusalem area shall upon
the Commissioner's request direct their respective police forces to assist the
Commissioner in the performance of his duty.
ARTICLE XIII
If at any time it appears to the Commissioner that
any Holy Place is in need of urgent repair, he may call upon the religious
denominations or bodies concerned to carry out such repair. If in the opinion
of the Commissioner the repair is not carried out or is not completed within a
reasonable time, he may arrange for repairs to be carried out or completed. The
expenses incurred shall be borne by the religious denominations or bodies
concerned. The Commissioner shall decide, after due investigation on the basis
of existing rights, which denominations or bodies are responsible for the
repair.
ARTICLE XIV
The Commissioner shall appoint a panel of advisers
consisting of representatives of the religious denominations and of the governments
in the Holy Land. These advisers shall be nominated by the religious
denominations and governments concerned. If a disagreement arises in connexion
with the provisions of this resolution, the Commissioner shall consult advisers
from the panel representing such religious denominations or religious bodies
and governments as are concerned with the dispute. No representative of any
religious denomination shall be consulted on questions relating to a Holy
Place belonging wholly to another religious faith.
ARTICLE XV
1. Any dispute between the Commissioner and one of
the governments of the States in the Holy Land concerning the interpretation or
implementation of this resolution or of any supplementary agreements or
arrangements, which is not settled by negotiation, shall be referred for final
decision to an ad hoc tribunal of arbitrators, one to be nominated, as
the case may be, either by the Hashimite Kingdom of the Jordan or by the State
of Israel, and one to be nominated by the Secretary-General of the United
Nations. In the event of two arbitrators being unable within seven days to
agree on the choice of an umpire, the latter shall be nominated by the
President of the International Court of Justice.
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2. In case of a dispute between the
Commissioner and both governments concerned, two arbitrators will be nominated
by the respective governments concerned and two by the Secretary-General. In
the event of their inability within seven days to agree on the choice of the
fifth arbitrator, the latter shall be nominated by the President of the
International Court of Justice.
3. The decisions of the arbitral
tribunal shall be binding on the governments concerned.
ARTICLE XVI
Nothing in this resolution shall
apply to purely Moslem Holy Places, religious buildings or sites and Moslem
religious interests within territory controlled by the Hashimite Kingdom of the
Jordan, or to purely Jewish Holy Places, religious buildings or sites and
Jewish religious interests within territory controlled by the State of Israel.
ARTICLE XVII
The terms of this resolution can be
reviewed only by the General Assembly.
APPENDIX III
UNITED KINGDOM, UNITED STATES OF
AMERICA, URUGUAY:
AMENDMENT TO THE DRAFT RESOLUTION
OF SWEDEN (A/AC.3S/L.63)
U.N doc.
A/AC.38/L.73/Rev. 2
(Original text:
English)
(13 December 1950)
Preamble
Replace the sixth paragraph of the preamble by the
following:
"Pending further decisions by the United
Nations with respect to the interests of the international community in the
Jerusalem area;"
Operative part
Replace the operative part of the draft resolution by the
following text:
"1. Resolves to
invite the Governments of Israel and the Hashimite Kingdom of the Jordan to
pledge themselves before the United Nations to:
"(a) Observe human rights and
fundamental freedoms in the Jerusalem area, and in particular freedom of
thought, conscience and religion as set forth in article 18 of the Universal
Declaration of Human Rights;
"(b) Refrain from any act that
would endanger the Holy Places in their territories;
"(c) Guarantee to nationals of
their States, as well as aliens, without distinction as to nationality, free
access to Holy Places in their territories, without prejudice to the General
Armistice Agreement between the Hashimite Kingdom of the Jordan and Israel of 3
April 1949;
"(d) Observe
and maintain as they existed on 14 May 1948 the rights, immunities and
privileges of religious denominations with respect to Holy Places, as well as
the rights, immunities and privileges of religious bodies with respect to
monasteries and missionary, educational and welfare establishments now
maintained by them;
"(e) Levy no tax in respect of
any Holy Places which were exempt from such taxation on 14 May 1948 and
make no charge in the incidence of any form of taxation which would either
discriminate between the owners and occupiers of different Holy Places or would
place such owners and occupiers in a position less favourable in relation to
the general incidence of that form of taxation than existed on 14 May 1948;
"(f) Maintain
and respect the property rights of religious bodies;
"(g) Reduce their armed forces
in the Jerusalem area in progressive stages with a view to their limitation to
normal peacetime requirements upon the conclusion of a peace settlement;
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"2. Resolves to send to Jerusalem a United Nations representative to represent the
interests of the United Nations in the Holy City in implementation of paragraph
1 of this resolution; and to report to the General Assembly with such recommendations
as he may consider appropriate with regard to the Jerusalem question; the
United Nations representative in Jerusalem shall be appointed on the nomination
of the Secretary-General by a Committee of the General Assembly consisting of
the eleven members of the Security Council; this Committee shall decide by a
majority of the members present and voting;
"3. Calls upon the governments
of the States in the Holy Land to co-operate fully with the United Nations
representative;
"4. Requests the
Secretary-General to furnish to the United nations representative such staff
and other facilities, as are required in the performance of his task."