Legal Considerations on the International Status of Jerusalem
Legal Considerations on the International Status of Jerusalem
Abstract and Keywords
This chapter discusses three points regarding the international status of Jerusalem. They are: (i) the question of whether after the 1948-49 hostilities Israel and Jordan acquired sovereignty over Western and Eastern Jerusalem respectively; (ii) the legal status of Jerusalem after Israel occupied the whole city following the 1967 Arab–Israeli war; and (iii) the question of whether the United Nations is still legally responsible for deciding upon the status of the city, or whether authority on the matter has devolved upon the states concerned.
1. Introductory Remarks
It is not the purpose of this paper to review all the thorny questions relating to the international status of Jerusalem. I shall confine myself to discussing three points, which appear to be worthy of particular interest. They are: (i) the question of whether after the 1948–49 hostilities Israel and Jordan acquired sovereignty over Western and Eastern Jerusalem respectively; (ii) the legal status of Jerusalem after Israel occupied the whole city following the 1967 Arab-Israeli war, and (iii) the question of whether the United Nations is still legally responsible for deciding upon the status of the city, or whether authority on the matter has devolved upon the states concerned.
In briefly discussing these three issues I shall adopt a legal approach and shall only deal with lex lata. It is not within my province to look into lex ferenda, and make proposals for a change in the present situation. The choice of this approach raises two distinct problems. First, is it possible to make an unbiased legal assessment of the present situation in Jerusalem (or, for that matter, in the whole area)? Secondly, assuming that an even-handed approach is feasible, does international law have any role to play in this intricate and politically loaded subject, or is its role merely peripheral to any political settlement?
As for the first question, it is common knowledge that two schools of thought exist among jurists: one showing strong pro-Israeli leanings,1 the other manifestly supporting Arab demands.2 Save for rare exceptions3 it would seem that one (p.273) cannot avoid being decidedly influenced by political feelings. Nevertheless, international scholars should at least try to be as little conditioned as possible by political prejudice. The idea that even the jurist must perforce adhere to one of the two camps would not only be contrary to the scholarly function but—and this is even more important—would make true dialogue, and compromise, impossible in this area. This I will not accept, if only because it would be contrary to the whole spirit of the fundamental principles governing international relations4 and to the basic aspiration to the peaceful settlement of disputes laid down in the U.N. Charter.
Efforts should be made to look beyond the crystallized juridical positions of the two camps. The aim is thus not to present a partisan solution to the problem, but to show one possible way in which recourse to rules of international law may help to circumvent political obstacles. The fact that in considering each particular issue I will start from an examination of the legal views advanced by the pro-Israeli jurists should not be seen as contradicting the above; in fact, these views tend to be better argued and usually bolstered by sophisticated juridical reasoning.
We now turn to the second question, that is, the role law could play in this problem-area. Before embarking upon an analysis of the various legal issues relating to Jerusalem, one might be tempted to think that in this, as in all similar questions with a high political and military element, law inevitably plays a marginal role; at best it is used as a weapon in the hands of the opposing factions to buttress their respective political demands. Instead, I shall start from the assumption that even where international law has reached its ‘vanishing point’5 in matters directly impinging upon force, one should not a priori discount the possible role of legal standards. In particular, one ought to shun generalizations, for everything depends on the way the legal framework of the world community responds to the strains of the specific situation. To put it differently, one should enquire, case by case, whether or not law is a remote and pointless entity, or whether it provides the guidelines for a feasible political settlement. One of the purposes of this paper is precisely this: to ascertain to what extent legal precepts—as they have evolved in the international community and are currently upheld by the majority of states—help in the search for peace in the Middle East.
2. The Israeli and Jordanian Commitment Not to Change the Legal Status of Jerusalem Without U.N. Consent
It is not disputed that from 1517 to 1917 Jerusalem was part of the Ottoman Empire and therefore under its exclusive sovereignty. Similarly, no one questions the fact that in the period from 1917 to 1948 Jerusalem was actually controlled by the United Kingdom, first as a military occupant (during and after the first World (p.274) War) then, after 1922, as the mandatory power under the League of Nations system. During these thirty-one years the United Kingdom did not, however, possess sovereign rights over the city. Although opinions on the general question where sovereignty over mandated areas lay differ widely,6 in the case of Jerusalem the best view seems to be that ‘if the test of sovereignty rests in determining who had the power to dispose of any part of a territory under Mandate, the answer is that sovereignty lay in the League and the administering authority acting jointly’.7
Who held sovereignty over Jerusalem after the Arab countries had refused the U.N. Partition Plan and a war erupted between Israel and the Arab countries is a matter of great controversy.8 In particular, once the hostilities had ceased and the Armistice Agreement was signed by Israel and Jordan on 3 April 1949,9 did Israel and Jordan gradually acquire a legal title over Western and Eastern Jerusalem respectively?
To answer this question it is necessary to determine who had the power to dispose of Palestine after the British had withdrawn from the area.
It is well known that before the League of Nations was dissolved on 18 April 1946 the last League Assembly adopted a resolution which took note of the ‘expressed intentions’ of the League Members, then administering territories under mandate, to continue to administer them for the well-being and development of the peoples concerned ‘until other arrangements’ had been ‘agreed between the United Nations and the respective mandatory Powers’.10 All the (p.275) parties concerned therefore agreed that the mandatory powers were not free to dispose of mandated areas as they thought fit; the United Nations was to play a major role in the matter, in that it was to authorize any change of status for the areas. This authority did not flow from the U.N. Charter, but rather from an agreement reached outside the Charter. The agreement had been concluded by all the Member States of the League of Nations when they adopted the resolution referred to above. It should be stressed that it is not unusual for a group of states to enter into an internationally binding agreement by passing a resolution within an international organization;11 plainly, to ascertain whether the resolution is merely an ordinary recommendation or amounts to an international agreement one should look both into the intentions of the states concerned, as they are shown in their statements, and into the actual terms of the resolution. By virtue of this agreement, the Member States of the League of Nations administering mandated territories undertook not to relinquish their control over those areas without the consent of the United Nations; the remaining Member States of the League acquired a right to claim from the former compliance with the obligation just referred to. Besides, the United Nations was granted the right to authorize any transferral of power over the territories under mandate. This authority, it should be added, was tacitly accepted by the United Nations by its decision to deal with those territories, and, in the case of Palestine, by its decision to propose a settlement of the matter by means of the Partition Plan.
It is worth emphasizing that later on both Israel and Jordan tacitly ‘joined’ the agreement. Israel did so as early as 1948. On 15 May 1948, Mr. Moshe Shertok, the Israeli Foreign Minister, sent a cable to the U.N. Secretary-General in which he recalled the proclamation issued by the National Council for the Jewish State declaring inter alia that ‘the State of Israel will be ready to co-operate with organs and representatives of the United Nations in the implementation of the resolution of [The General] Assembly of 29 November 1947’ laying down the socalled ‘Partition Plan’. He went on to state:
(p.276) These Israeli commitments made it clear that Israel implicitly recognized the authority of the United Nations to propose a plan for Palestine which included Jerusalem. It seems that, in addition, Israel accepted, by implication, that decisions on Jerusalem should be initiated by the United Nations or, in any event, had to receive its consent.
Accordingly I beg [to] declare on behalf [of the] Provisional Government of [the] State of Israel its readiness to sign [the] declaration and undertaking provided for respectively in part I C and part I D of [the] resolution of [the] Assembly.12
After the rejection of the Partition Plan by the Arab States, the Israeli stand was reiterated and expressed in even clearer terms by the Israeli representative to the United Nations, Mr. Abba Eban, in the statement he made on 5 May 1949, before the Ad Hoc Political Committee of the General Assembly, on the occasion of the discussion of Israel's application for admission to membership of the U.N. In the part of his lengthy statement concerning Jerusalem, Mr. Eban made the following points: (a) Israel ‘had cooperated to the fullest extent with the Statute drawn up in November 1947’, in an effort to implement the section of the General Assembly Resolution concerning Jerusalem;13 (b) the failure of the United Nations scheme was therefore not to be blamed on Israel but on the Arab States and on the ‘refusal of United Nations organs to assume the obligations necessary for the fulfilment of the Statute’;14 (c) in spite of the failure of the Partition Plan, Israel recognized that competence to decide on the status of Jerusalem still rested with the United Nations, and believed that a satisfactory solution of the question could only be reached ‘by international consent’ within the United Nations. Indeed, the hostilities that ensued thereafter had created a new situation; in particular, they had brought about a ‘process of integration of the life of Jerusalem into the life of the neighbouring States which now exercised the functions of administration [of Jerusalem]’.15 However, although Western and Eastern Jerusalem had therefore been placed under the ‘administration’ of Israel and Jordan respectively, and Israel suggested as the best proposal for a settlement a ‘functional internationalization’ (i.e., an international regime for the Holy Places only—situated in the area under Jordanian control), nevertheless, Israel was ready to bow to an international decision on the matter if it was agreeable to her. As Mr. Eban put it:
He later on stated the following:
The statement contained in the Lebanese draft resolution that the New City of Jerusalem [i.e., West Jerusalem] had been proclaimed as part of the State of Israel was false and malicious. The most salient feature of the Government of Israel's present attitude to the Jerusalem problem was its earnest desire to see the juridical status of the city satisfactorily determined by international consent.16
In particular, as for Israel's suggestions for a ‘functional internationalization’ of Jerusalem, Mr. Eban pointed out as follows:
The Government of Israel would continue to seek agreement with the Arab interests concerned in the maintenance and preservation of peace and the reopening of blocked access (p.277) into and within Jerusalem. Negotiations on that subject would not, however, affect the juridical status of Jerusalem, to be defined by international consent.17
It is apparent from Mr. Eban's statement that although it no longer felt bound by the Partition Resolution, Israel still recognized—quite explicitly—the authority of the United Nations in any decision concerning Jerusalem acceptable to the parties concerned, and that consequently, no final settlement of the matter could be reached without the approval or the endorsement of the United Nations. Thus Israel undertook to refrain from seeking any settlement of the question without United Nations consent.19
[I]t was for the Committee [i.e., the Ad Hoc Political Committee of the General Assembly] to decide whether it endorsed or did not endorse the views of the Government of Israel on the future status of Jerusalem.18
One could infer from the Israeli stand that she eventually joined the agreement concluded within the League of Nations on 18 April 1946. One could even see it as a ‘tacit accession’ to that agreement, brought about by the statement made by Israeli representatives to the United Nations. Should this view appear formalistic or somewhat farfetched, the suggestion could be made that Israel undertook a commitment vis-à-vis the United Nations parallel to the 1946 agreement. It is worth noting that the Israeli commitment was very similar to that undertaken—in the view of the International Court of Justice—by the Union of South Africa vis-à-vis the United Nations, on the question of the status of South West Africa. It is well known that in its Advisory Opinion on the Status of South West Africa (1950), when the Court tackled the question whether the Union of South Africa had the competence to modify unilaterally the international status of South West Africa, it denied this competence. Among other things, it noted that on 9 April 1946, before the Assembly of the League of Nations, the South-African representative had recognized the competence of the United Nations to consent to any change of status for South West Africa. The Court thus inferred from the commitment made by the Union of South Africa before the U.N. that the authority to (p.278) determine and modify the international status of South West Africa rested ‘with the Union of South Africa acting with the consent of the United Nations’.20
Whichever of these legal configurations seems preferable, what really matters is the ultimate result: the Israeli statements precluded Israel from making any decision on the status of Jerusalem without the approval of the United Nations. In particular, Israel was barred from acquiring sovereignty over Western or Eastern Jerusalem without United Nations approval.21
Jordan adopted a rather ambiguous attitude toward the United Nations 1947 scheme for Jerusalem in 1947–48.22 Later on, by holding on Eastern Jerusalem, it manifested its rejection of the scheme. However, on 26 November 1949, in the Ad Hoc Political Committee of the U.N. General Assembly, the Jordanian representative, while insisting on the importance it attached to Jordanian control over the Eastern part of Jerusalem, bowed to U.N. authority on the general issue of Jerusalem; he indeed used words that should not be labelled as a merely hypocritical homage to U.N. prestige, but can be construed as conveying the idea that Jordan would answer to the U.N. for its control over Eastern Jerusalem.23 Although the attitude of Jordan was rather ambiguous and unclear for many years, once this country became a member of the United Nations, in 1955, it voted in favour of the various resolutions of the General Assembly on Jerusalem, particularly after 1967. It stands to reason that by supporting all the General Assembly resolutions calling upon Israel to rescind the measures adopted in Eastern Jerusalem after 1967, Jordan implicitly assented to the U.N.'s authority to determine—in agreement with the parties concerned—whether changes in the status of Jerusalem are internationally lawful. It follows that, like Israel, Jordan undertook an obligation vis-à-vis the United Nations along the lines of the 1946 agreement referred to above. Like Israel, Jordan was then barred from acquiring any title over Jerusalem without United Nations consent.
3. Who Wielded Sovereignty Over Jerusalem Between 1948 and 1967?
The rejection of the Partition Plan by most of the parties concerned and the consequent fighting in Palestine, left the General Assembly Resolution embodying (p.279) the Plan a dead letter. However, although it was not implemented, it was never formally repealed by the General Assembly.
Can the contention be made that the actual occupation of Jerusalem by Jordan and Israel meant they acquired sovereign rights over Eastern and Western Jerusalem respectively?
A learned author has argued that, after 1952, both the General Assembly and the Security Council gradually abandoned any idea of internationalizing Jerusalem, although the ‘Secretariat and various individual Members of the U.N. continued, on occasion, to pay lip service to the idea’;24 this was so much so that, in his view, one could safely contend that ‘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’.25 The whole complex situation that developed in Jerusalem was described by the same author as follows: since Jordan's occupation of Eastern Jerusalem in 1948 was in breach of Article 2 (4) of the U.N. Charter, it lacked any legal justification; consequently, Jordan was unable to acquire a legal title to sovereignty over the area. It merely performed a ‘prolonged de facto occupation’ from 1948 to 1967. By contrast, Israel's occupation of Western Jerusalem was prompted by Jordan's attack; Israel acted in self-defence, under Article 51 of the U.N. Charter. Her occupation of Western Jerusalem, being lawful, allowed Israel to acquire a legal title to that area. Acquisition of sovereignty was also possible because the United Nations did not challenge it; it acquiesced in the new legal situation.26
I shall not make a detailed analysis of the lawfulness of Jordan's invasion of Eastern Jerusalem—for the purposes of this paper it is sufficient to note that the better view is that the invasion was contrary to Article 2 (4) of the U.N. Charter and to the general principle arising out of it. As regards Israel, it seems that both assumptions on which the view quoted above rests, namely that Israel became the lawful sovereign of Western Jerusalem, and that the U.N. acquiesced in her sovereignty are questionable.
First, although Israel acted in self-defence under Article 51, this did not authorize her to annex territories under a ‘sovereignty vacuum’27. Indeed the view referred to above seems to rest on a misconception of self-defence. Self-defence only entitles states to use force to repel an unlawful armed attack; it does not legitimize the acquisition of territory.28 The authors under consideration actually stretch the concept and the substance of self-defence to such an extent as to distort this notion substantially. To be sure, the victim of an ‘armed attack’ could go so far as to occupy, temporarily, a territory in order to forestall the (p.280) recurrence of armed attacks which might seriously jeopardize its territorial integrity and political independence. This occupation should, however, discontinue as soon as the United Nations steps in, and in any event does not entail acquisition of sovereignty over that territory. The situation cannot but be provisional; pending the cessation of the wrongful behaviour or a final settlement, the occupying power is only authorized to exercise de facto control over the territory.29 At least since 1945, sovereignty cannot be acquired through military conquest, not even when the territory was previously unlawfully controlled by another state, or when force is resorted to in order to repel an unlawful attack. The ban on the use of force and military conquest, laid down in the Charter,30 is too sweeping and drastic to make allowance for such qualifications. Cogent arguments would be necessary to demonstrate that these qualifications are permissible. So far no international lawyer has advanced any.31 By contrast, a great authority, Professor Robert Jennings (as he then was), wrote in 1963 that ‘conquest as a title to territorial sovereignty has ceased to be a part of the lawʼ whether or not force used for the purpose of seizing territory was lawful or unlawful under the U.N. Charter’.32 In my view, a careful examination of the Charter system and its general purposes, as restated among other things in the 1970 Declaration of Friendly Relations33 leads us to believe that ‘acquisition’ of sovereignty as a result of military force might perhaps be allowed, but only on very strict conditions: (i) it must be undisputed that prior to the use of force sovereignty over the territory belonged to the same state which used force to expel the unlawful occupant; (ii) all possible means for a peaceful settlement of the dispute have been used before resorting to armed violence and, (p.281) in particular, recourse has been made to the appropriate U.N. bodies, but they have failed to dispossess the unlawful occupant of the territory; and (iii) the use of force has not gone beyond the limited goal of restoring sovereign rights over the territory (it is apparent from these conditions that in the case under consideration it would be more correct to speak of ‘reacquisition’ of territory).
If one looks at the question in the light of these conditions, it becomes clear that at least one of them is missing: before 1948 Israel could not claim to hold sovereign rights over Western Jerusalem.
The second criticism of the view referred to above is predicted upon the premise that it does not seem that after 1952 the U.N. ever endorsed Israeli (and, for that matter, Jordanian) alleged sovereignty over Jerusalem. It should be pointed out that U.N. silence on the question between 1952 and 1967 cannot amount, as such, to acquiescence in their acquisition of a legal title. U.N. inaction, clearly motivated by an inability to overcome the political impasse, can only mean that the world organization accepted and acquiesced in de facto control of Jerusalem by Jordan and Israel. The granting of a legal title or, to be more precise, the turning of de facto authority into fully-fledged sovereignty, could not be brought about by mere silence. In view of the enormous importance of the question at issue and of the impact that a solution could have on the very tricky problems of the Middle East, the issue of consent should not be taken lightly. How could one assume that the U.N. expressed its consent on such a complex and explosive matter by merely keeping silent? At least a tacit manifestation of consent through conclusive acts would have been necessary.
What has just been pointed out is corroborated by the action taken over the years by several prominent members of the United Nations, including the states more directly concerned. Thus, for instance, the United Kingdom, after granting in 1950 and 1951, de facto recognition only of Israel's and Jordan's control of Jerusalem, in contradistinction to its de jure recognition of Israel and Jordan,34 did not appear to modify its position over the years. In addition, the U.S. Government consistently emphasized the need for Jerusalem to be given an international regime proving that it did not intend to recognize any sovereignty over Jerusalem. Suffice it to mention here a few U.S. statements. On 22 July 1952, in response to the proposed move of the Israeli Foreign Ministry from Tel Aviv to Jerusalem, the American Embassy stated:
The Government of the United States has adhered and continues to adhere to the policy that there should be a special international regime for Jerusalem which will not only provide protection for the holy places but which will be acceptable to Israel and Jordan as well as the world community.
(p.282) Since the question of Jerusalem is still of international importance, the U.S. Government believes that the United Nations should have an opportunity to reconsider the matter with a view to devising a status for Jerusalem which will satisfactorily preserve the interests of the world community and the States directly concerned. Consequently, the U.S. Government would not view favorably the transfer of the Foreign Office of Israel to Jerusalem.35
On 30 December 1958, in a despatch to the Secretary of State, the American Consul General at Jerusalem stated:
This stand was reaffirmed in 1960. On 5 April of that year the U.S. Ambassador at Amman, in a despatch to the Secretary of State, pointed out, inter alia, that:
The majority of U.N. member nations, including the United States and the Soviet Union, have continued to respect the United Nations resolutions despite the de facto occupancy of the city of Jerusalem part by Israel and part by Jordan. As a result, an anomalous situation exists today embodied, in the case of the United States, by a Consulate General whose district is the ‘international city’ and certain adjacent areas on the Jordanian side. Other nations which maintain similar establishments are the United Kingdom, Turkey, Italy, Spain, Greece and Belgium. Many other countries mark their respect for the internationalization resolutions by establishing embassies in Tel Aviv thus avoiding recognition of Jerusalem as the capital of Israel and, by implication, as Israel's de facto sovereign territory.36
As late as 1967 the U.S. reiterated its attitude. In a statement made on 28 June, the Department of State made it clear that:
The Government of the United States of America has adhered and continues to adhere to a policy which respects the interest of the United Nations in the status of Jerusalem. The United States Government therefore cannot recognize or associate itself in any way with actions which confer upon Jerusalem the attributes of a seat of government of a sovereign State, and are thus inconsistent with this United Nations interest in the status of that city.37
Another important pronouncement was made in 1958 by the Italian Council of State (Consiglio di Stato), the supreme body of ‘administrative justice’ responsible for reviewing the legality of executive acts either in contentious proceedings or at the request of other Italian State agencies. In an advisory opinion delivered on 9 December 1958 following a request of the Foreign Ministry, the Council had to pronounce upon the following issue: whether the Italian Consulate in Western Jerusalem had to pay rent to the Arab owner of the premises, who did not live in the city, or to the Israeli Custodian—the only entity authorized to receive the (p.283) money under Israeli law.39 The Italian Council held that since the Israeli law was applicable in Western Jerusalem, the Italian Consul was to conform to it and pay the rent to the Custodian. However, before reaching this conclusion the Council stated, inter alia, the following on the status of Jerusalem:
The United States has never recognized such unilateral actions by any of the States in the area as governing the international status of Jerusalem.38
Thus the Italian Consiglio di Stato clearly pointed out that Israel had not acquired full sovereignty over Western Jerusalem. Also very significant appear the Council's remarks on the duty of all the Member States of the U.N. to comply with the General Assembly pronouncements on the matter by withholding recognition of the Israeli claim to sovereignty over Western Jerusalem.41 Although the Consiglio di Stato's point on this issue was merely an obiter dictum, it can be considered indicative of the views of Italian State authorities, not only because the Foreign Ministry (which, as emphasized above, had requested the Council's advisory opinion) eventually upheld it but also because it is in line with other pronouncements by Italian authorities on the matter.42
The situation of the territory of Jerusalem is not at all clear from the point of view of public international law. To be sure, there exists an international law convention (convenzione) providing that the territory should be internationalized. However, it seems that this convention has not yet been implemented and sovereignty is de facto exercised by the State of Israel, although this state of affairs has not been legally recognized by the Member States of the United Nations, which are duty bound to abide by that convention.40
It is apparent from all these statements that a great number of U.N. members did not intend to recognize any asserted acquisition of sovereignty either by Israel or by Jordan over Jerusalem; in addition, some of them strongly believed that the city should enjoy an international status. This being so, how could it be claimed that the United Nations acquiesced in the alleged transfer of sovereignty over Jerusalem? It is indeed difficult to dissociate the U.N. stand from that of the majority of its members. The attitude taken by the aforementioned states only confirms that U.N. inaction cannot be taken to mean a tacit acceptance of Israeli or Jordanian sovereignty over Jerusalem.
4. What Exactly Has the Legal Status of Jerusalem Been Since the 1967 War?
In 1967 Israel occupied Eastern Jerusalem in the course of armed hostilities started by Jordan, whereas during the conflict with Egypt and Syria, she had (p.284) acted in ‘anticipatory self-defence’.43 On 27 June 1967, the Israeli Parliament (the Knesset) passed a law as a result of which in July of the same year the Israeli Government decreed that the whole of Jerusalem was incorporated into the municipal and administrative spheres of its government.44 The administrative incorporation of Jerusalem into Israel was upheld by various Israeli courts in the following years45 and completed by a ‘Basic Law’ passed on 30 July, 1980 by the Knesset.46 On the strength of this law the whole of Jerusalem was actually made an integral part of the State of Israel, and indeed became her capital city.
It is submitted that the annexation of Jerusalem is contrary both to conventional and general international law. As to conventional law, it has already been emphasized before47 that by implicitly joining the agreement concluded in 1946 within the last League of Nations Assembly, or at any rate by entering into a distinct but parallel agreement with the United Nations, both Israel and Jordan formally recognized the need for U.N. authorization or consent to any change in Jerusalem; they accordingly undertook to refrain from doing anything that would impinge upon the legal status of that city without prior U.N. approval. It is common knowledge that both in 1967 and in the following years, in particular in 1980, the Security Council, as well as the General Assembly, strongly condemned the Israeli annexation of Jerusalem and declared all the acts accomplished by Israel are null and void.48 It should be stressed that the refusal to acknowledge the legality of Israeli action in Jerusalem was reiterated, both within and outside the United Nations, by various Western countries—normally more friendly, or at least less hostile to Israel than socialist and developing states. Thus, for instance, mention can be made of the U.S.,49 the United (p.285) Kingdom,50 France,51 the Federal Republic of Germany,52 Belgium,53 Italy,54 the Netherlands,55 Canada56 and Japan.57 All these pronouncements make it clear that the United Nations as a whole, as well as its individual member states, expressly withheld recognition of the Israeli annexation of Jerusalem. It follows that the consent required by the multilateral or bilateral agreements referred to above was not given; consequently Israel never acquired a valid legal title.
Let us now consider whether such a title was acquired under customary international law. Can we maintain that Israeli sovereignty stems from a different source than treaty law, a more flexible source and which ex hypothesi could override treaty obligations? To put it differently, can we hold that—unlike treaty law, by definition better geared to the specific circumstances of individual cases—customary law, being more traditional and general, takes account of, and legitimates, the physical taking of Jerusalem by Israel coupled with her intention to annex it?
Two points need to be made. First, under customary international law, actual control over a territory attended by animus possidendi can only create a legal title to areas belonging to no one.58 However, it would be both unsound and contrary to all evidence to suggest that Jerusalem became terra nullius after the British withdrawal. Hence, a legal title other than the one required for the acquisition of ‘territories without master’ is necessary. In the case at issue, the legal title should be granted by the previous holders of sovereignty, i.e. the League of Nations (after 1946 by its successor, the U.N.) and the United Kingdom, as the former Mandatory State. Such transferral, however, has not been made, either through formal international instruments, or by implication (i.e. by the acquiescence of the U.K. and the U.N. in the alleged sovereignty of Israel and Jordan, or of Israel only).59 Can acquisition of territory derive from a different title, namely ‘unlawful (p.286) conquest’? It has been suggested that between 1948 and 1967 Eastern Jerusalem was under the unlawful control of Jordan and in 1967 occupied by Israel acting in self-defence against the wrongful attack by Jordan. According to various distinguished jurists60 the lawful conquest of a territory illegally occupied by a state in breach of Article 2 (4) of the U.N. Charter creates a sovereign title in favour of the conquering state. Arguments advanced with respect to the status of Jerusalem in the period between 1948 and 196761 could be repeated in this instance. General international law on territorial sovereignty has undergone a major change, at least since 1945: whenever a state appropriates a territory by using force (whether in breach of Article 2 (4) or by acting in self-defence under Article 51 of the U.N. Charter), no legal title over the territory can be acquired. The classical elements for transferral of sovereignty are no longer sufficient. Authority over the territory is internationally illegal (except as a belligerent occupant), until such time as the overwhelming majority of states (or the competent organs of the United Nations) decide legally to recognize the change of status of the territory.62 However, U.N. approbation or consent have been refused in the case at issue.
In sum, while treaty law excludes any acquisition of sovereignty by Israel over Jerusalem, one cannot even fall back on customary law for the purpose of validating Israeli claims to sovereignty. As pointed out above, at present, general international law has departed markedly from the principle of effectiveness: de facto situations brought by force of arms are no longer automatically endorsed and sanctioned by international legal standards. At present the principle of legality is overriding—at least at the normative level—and effectiveness must yield to it. As it has already been emphasized, this is the consequence of a whole range of major changes that occurred in the world community after the adoption of the U.N. Charter.
5. Does the United Nations Still Have a Role in Deciding Upon the Future of Jerusalem?
It is apparent from the above that the United Nations, although it has no ‘real’ power of disposition over Jerusalem (certain de facto situations cannot be obliterated by merely legal means) it does, however, have a decisive say in the matter and no international settlement can be lawfully reached without its approval. Admittedly, Israel has shown much reticence on this matter and at present in actual practice it denies the United Nations the authority to legalize any settlement acceptable to the parties concerned by its approbation. Nevertheless, Israel's refusal is contrary to her previous commitments vis-à-vis the United Nations—a commitment never nullified on any of the grounds for rendering agreements null and void (in particular, the clause rebus sic stantibus cannot validly be invoked, (p.287) for, as stated above, Israel accepted U.N. authority even after the Partition Plan had been rejected by Arab countries). In addition, the Israeli refusal referred to above cannot produce any legal effects under customary international law, for the latter requires a set of conditions for the acquisition of a valid legal title to sovereignty that Israel does not fulfil.
However deep the cleavage between Israel on the one side, and the world community on the other, a settlement sanctioned by law must require the assent of the world community, as expressed by its representative body, the United Nations.
6. Has the Idea of Territorial Internationalization Been Abandoned by the United Nations?
Let us now briefly look into the question of whether the U.N., given its authority over any settlement of the Jerusalem issue, has yet proposed a definite scheme, or whether it has refrained from taking any initiative on the matter.
One of the authors referred to above has suggested that recent U.N. resolutions do not reflect any intention on the part of the United Nations ‘to resurrect the idea of the territorial internationalization of Jerusalem’ and in particular that the ‘status of the city’, about which some of these resolutions expressed concern, was not the status chosen by the General Assembly in 1947 for internationalization.63 This contention rests on two elements: first, in the discussion before the passing of those resolutions, no mention was usually made of internationalization; second, no reference whatsoever to internationalization is to be found in the language of the resolutions itself. The conclusion is accordingly drawn that the United Nations now accept that Jerusalem should be divided into two parts: one under Israeli sovereignty, the other in a sort of legal vacuum as to sovereign rights—although, in the opinion of the author under consideration, after 1967, Israel may have come lawfully to exercise the powers of a belligerent occupant over Eastern Jerusalem,64 while other authors take the view that Israel lawfully acquired sovereignty over the whole of Jerusalem.65
Admittedly, the various resolutions passed by the United Nations since 1967 only refer, in terms, to the duty of Israel to cancel the measures it has taken in Eastern Jerusalem and, consequently, to withdraw to Western Jerusalem. Taken at their face value, they seem to indicate that the United Nations has abandoned any idea of internationalization. Indeed, a few authorities66 have spoken of the ‘apparent ambiguity’ or ‘lack of clarity’ of these resolutions. Can we infer from their text that the United Nations has now come to accept a city divided into two parts, each under the sovereignty of a different state?
(p.288) The somewhat obscure character of the resolutions and their deliberate openness to various interpretations, as well as the whole context of the United Nations' stand on the question of Jerusalem, point to the following conclusions.
First, the world organization never intended to endorse the occupation of Eastern Jerusalem by Israel, much less the alleged acquisition of sovereignty by that state.
Secondly, the United Nations never proposed a definite scheme for the final settlement of the question; it has neither insisted on the idea of internationalization, nor has it favoured the splitting of the city into two parts, each under the sovereignty of a different state. The organization has preferred to take a very cautious stand by leaving either solution open. In particular, it has avoided pronouncing both on the legal title required for either solution, and on which state would have a better title to sovereignty over all or part of Jerusalem.
Thirdly, the organization has clearly shown its intention of retaining full power of disposition over the territory or, to put it in more accurate terms, to maintain its right to authorize, or consent to, any legal change in the status of Jerusalem.
This stand, which at first sight might appear ambiguous, hence open to criticism, is instead realistic and flexible. By not crystallizing its position in one rigid formula, the United Nations has left all the options open, thus showing its desire to take account of the evolving political and military realities in the area. It has adopted a wise and balanced course of action, by only insisting on one crucial point—the principle of United Nations authority over any final settlement.
It should be noted that the United Nations' attitude ultimately represents a syn thesis of the differing views of some of its members. A number of Member States still believe that the idea of a corpus separatum should be revived; suffice it to mention the statements made in Parliament by the Belgian Government in 196967 and again in 197168 and by the Philippines in 1980 in the Security (p.289) Council.69 The same stand had already been taken in 1967 within the United Nations, following the Israeli occupation of Eastern Jerusalem, by 20 Latin American States, as well as by Spain.70 A different view was expressed in 1979 by the British Foreign Minister, who proposed that ‘there should be an Arab Jerusalem and an Israeli Jerusalem, each exercising full sovereignty within its own territory, but with no barriers between them and no impediment in freedom of movement between them’.71 A looser formula was suggested by the EEC members. On 13 June 1980 the European Council, meeting in Venice, stated that the Nine (as they then were) did not accept any unilateral initiative aimed at changing the status of Jerusalem, and that any agreement on the status of the city should guarantee free access for all to the Holy Places.72 The apparent implication is that the EEC members do not intend to recognize the alleged sovereignty of Israel over Eastern Jerusalem, and take the view that only through an international agreement can a final settlement be reached. It should he added that in 1980, in the Security Council, Cuba, Jordan and Turkey loosely referred to an international regime for Jerusalem under the aegis of the United Nations. Clearly, the existence of disparate or even opposed viewpoints among the member states of the United Nations helps to explain why the organization has deemed it advisable since 1967 to shun any clear-cut scheme for the city, as long as the political situation remains fraught with danger and no solution acceptable to all the parties concerned is in sight.73
(p.290) 7. Final Remarks
A. Conclusions of the Foregoing Analysis
Under current international law it is ultimately for the United Nations, Israel and Jordan to make arrangements for the international status of Jerusalem.74 However, by virtue of the general principle on the self-determination of people, these arrangements cannot be validly made without the participation of the legitimate representatives of the Palestinian people, who must be allowed to take part in the decision-making process, and express the aspirations of the Palestinians. Until such time as a general agreement is reached with the United Nations on the matter, Israel's present claim to sovereignty cannot produce any legal effects. Under international law, Israel only exercises de facto control over Jerusalem. And, as for her control over Eastern Jerusalem, it is clearly a breach of the international rules on military occupation, because it goes far beyond the limits assigned to the powers of a military occupant.75
In concluding this study, one may try to advance a few general remarks on the role of law. It is submitted that current international law does not ‘freeze’ the existing de facto situation in Jerusalem; it does not give it its ‘blessing’. In the case of Jerusalem, we come face to face with a striking phenomenon: a de facto situation, brought about by force of arms and now solidly implanted in the daily life of the city, is not recognized by any other member of the world community, and consequently is not validated either under general international law or conventional law.76 The principle of effectiveness is overriden by that of legality, although the United Nations—creator of and spokesman for international legality—is unable to enforce it. This schizophrenic state of affairs forces international (p.291) law to confine itself to an essentially negative stand, that is to withholding its endorsement of the de facto situation. Subject to what shall be suggested later, by and large international law does not seem to provide a solution in positive terms. Although a huge gap separates law from reality, law at least accomplishes the useful function of indicating how a solution can be reached. Under international law a definitive settlement can only be achieved by dint of agreement between the parties concerned and subject to the consent of the United Nations. In other words, although international law does not furnish a fully-fledged substantive settlement, at least it enjoins the procedure to be followed. It calls for a process of negotiation involving the two states of the area, the legitimate representatives of the Palestinian people, as well as the other members of the world community. It is a process that will necessarily require a number of mutual concessions by the parties concerned. It will also have to take account of the keen interest of the whole international community in the safeguarding of the holy places in Jerusalem. It seems that only on these conditions can a solution acceptable to the world community be achieved.
B. Substantive Guidelines for a Possible Settlement, Stemming From International Law and Practice
One could object that a peaceful settlement along the procedural lines suggested above is a chimera, like that house mentioned by Swift: so perfectly built in accordance with all the rules of symmetry and equilibrium that if a sparrow were to alight on it, it would immediately collapse. Indeed, considering the present rift between Israel and most Arab States, the tensions or dissensions both among the Arab countries and within the Palestine Liberation Organization, the deadlock at the U.N., the political inability of the organization to smooth out the conflicts, a prompt solution through mutual concessions and trade-offs becomes highly problematical. This being so, it would seem all the more urgent to delve among the legal norms to see if one could at least postulate a general scheme. This, of course, could not impose itself by legal fiat until it had been embodied in an agreement. Nevertheless, its mere existence would provide a substantive blueprint for action, thereby facilitating the achievement of a compromise.
It is submitted that international law and practice tend to suggest the following solution. In the first place, international practice seems to regard as feasible the possible granting to Israel of sovereign rights over Western Jerusalem. Indications to this effect can be drawn from three sets of circumstances. First, at the end of hostilities in 1948 the armistice line dividing Jerusalem corresponded more or less to the demographic situation of Arabs and Jews in Jerusalem: the Western sector of the city included the highest number of Jewish inhabitants. Second, after 1967, the U.N. has repeatedly called upon Israel to withdraw from the ‘occupied territories’; this expression could be taken to cover only those territories occupied in 1967. By implication, one might infer that since Western Jerusalem is not (p.292) among such territories, the U.N. might be ready to accept that de facto control over the Western sector be turned into sovereign rights proper. Third, when concluding the Camp David Agreement,77 Egypt made a unilateral declaration on Jerusalem, whereby it implicitly accepted Israeli control over Western Jerusalem while rejecting any acquisition by Israel of rights over the Old City.
One could object that foreign embassies have been withdrawn from Western Jerusalem with ever-increasing frequency after 1967, and particulary after 1980, when the whole of Jerusalem was annexed by Israel. However, this was primarily done in protest at the illegal incorporation of Jerusalem into the Israeli political, administrative and legal system. This seems to he the best way of accounting for the seeming contradiction between the probably implicit acceptance of Israeli control over the Western sector of the city after 1967 and the withdrawal of foreign embassies.
In the second place, international law seems to point in a different direction as far as sovereign rights over Eastern Jerusalem are concerned. They should be granted to the legitimate representative of the Palestinian people for three reasons. First, in 1948 the ethnic majority in Eastern Jerusalem was Arab. Second, Jordanian control over Eastern Jerusalem in the period 1948–67 was never accepted as definitive by the world community, nor, indeed, by the Arab League which, as early as 12 April 1948, stated that Jordanian control in Palestine was temporary and that the country ‘should be handed [over] to its owners so that they may rule as they please’.78 Third, the right of people to self-determination requires that a home be granted to the Palestinian people,79 and this could be brought about, amongst other things, by entrusting the Palestinians with full authority over Eastern Jerusalem. Of course, such authority should be made conditional on full enjoyment by everyone of the rights of access and worship in the Holy Places.
This substantive settlement may, or may not, be considered realistic. Be that as it may, one can say, in conclusion, that international law, faced with this highly complex political problem, can allow a flexible and constructive ‘response’; a response which is neither preposterous and overbearing nor blind to political realities. It points to one of the few paths that can lead to peaceful settlement. It is incumbent upon the parties concerned, and the international community at large, to tread one of these paths and, through a process requiring patience and reasonable trade-offs, bring about a compromise acceptable to all.
(*) Originally published in 3 The Palestine Yearbook of International Law (1986) 13.
(1) See, e.g. E. Lauterpacht, Jerusalem and the Holy-Places (1968), (hereinafter ‘Lauterpacht’); Stone, No Peace No War in the Middle East (1969); Schwebel, What Weight to Conquest?, 64 Am. J. Int'l L. 344 (1970), (hereinafter ‘Schwebel’); Blum, The Juridical Status of Jerusalem (1974), (hereinafter ‘Blum’); Stone, Israel, the United Nations and International Law—Memorandum of Law, UN doc. A/35/316 (1980).
(2) See, e.g., Cattan, Palestine and International Law (1973), (hereinafter ‘Cattan’); Hassan Bil Talal, A Study on Jerusalem (1979) (This study was written with the collaboration of G.I.A.D. Draper), (hereinafter ‘Hassan Bin Talal’); Mallison & Mallison, The Palestine Problem in International Law and World Order (1986), 207–275, (hereinafter cited as ‘Mallison & Mallison’).
(3) See, e.g., Akehurst, The Arab Israeli Conflict and International Law, 5 New Zealand Univ. L. Rev. 231 (1973); Draper, The Status of Jerusalem as a Question of International Law, in Kochler (ed.), The Legal Aspects of the Palestine Problem with Special Regard to the Question of Jerusalem (1980), 154.
As for scholarly contributions which, although they do not specifically deal with the question of Jerusalem, take an original and unbiased stand, I shall mention, by way of illustration, Gerson, Trustee—Occupant: The Legal Status of Israel's Presence in the West Bank, 14 Hary. Int'l L. J. (1973); Weiler, Israel and the Creation of a Palestinian State—A European Perspective (1985).
(4) On these principles, see Cassese, International Law in a Divided World, (1986), at 126–165.
(5) As used by H. Lauterpacht, The Problem of the Revision of the Law of War, 29 Brit Y. B. Int'l. (1952), at 360.
(6) See e.g., I. Oppenheim–Lauterpacht, International Law, a Treatise at 222, note 5. (Eighth ed., 1955).
(7) Lauterpacht, at 13–14.
(8) After the demise of the League of Nations, the question of Palestine was discussed by the U.N. General Assembly on the question of initiative of the United Kingdom which, in a letter dated April 2, 1947, had requested the convening of a special session of the Assembly; this body was called upon to make recommendations under Article 10 of the Charter. In operative para. 3 of Resolution 181 (II) A, containing the Partition Plan, adopted on November 29, 1947, the General Assembly recommended ‘to the United Kingdom, as the Mandatory Power for Palestine, and to all other Mambers of the United Nations the adoption and implementation, with regard to the future Government of Palestine, of the Plan of Partition with Economic Union’, 2 U.N. GAOR, Resolutions, 131–132, U.N. Doc. A/519 (16 Sept.–29 Nov. 1947). Part III of the Partition Plan related to the City of Jerusalem provided that: ‘The City of Jerusalem shall be established as a corpus separatum under a Special International Regime and shall be administered by the United Nations. The Trusteeship Council shall be designated to discharge the responsibilities of the Administering Authority on behalf of the United Nations’.
The Resolution was substantially accepted by the United Kingdom, but rejected by the Arab States. The U.K., although it abstained from voting, declared that it would not obstruct the implementation of the Partition Plan, while Saudi Arabia, Pakistan, Iraq, Syria and Yemen denounced the Plan as being against the Charter, illegal and immoral, and stated that they did not feel bound by the Resolution.
What was the legal value of the Resolution? I submit that, since the General Assembly had special powers on mandated territories, its recommendations on the matter bore more weight that any ordinary resolution. In actual fact, they were proposals concerning the legal status of a territory. If accepted by the parties concerned, they would have given rise to an international agreement binding on the parties.
(9) 42 U.N.T.S. 303 No. 656, Apr. 4,1949.
(10) U.N.Y.B., 1946–47, at 575.
The resolution, adopted unanimously (with Egypt abstaining) stated among other things the following:
3. [The Assembly] Recognizes that, on the termination of the League's existence, its functions with respect to the mandated territories will come to an end, but notes that Chs XI, XII and XIII of the Charter of the United Nations embody principles corresponding to those declared in Art.22 of the Covenant of the League;
4. Takes note of the expressed intentions of the Members of the League now administering territories under mandate to continue to administer them for the well-being and development of the peoples concerned in accordance with the obligations contained in the respective mandates, until other arrangements have been agreed between the United Nations and the respective mandatory Powers.
(11) 11. See, e.g., Castaneda, Valeur juridique des resolutions des Nations Unies, 129 Hague Recueil (1970-I), at 302–312; Conforti, Le rôle de l'accord dans le système des Nations Unies, 142 Hague Recueil (1974-II), at 271–288.
(12) U.N. Doc. S/747.
(13) 3 U.N. GAOR, Ad Hoc Political Committee, Summary Records, 45th Meeting, at 235.
(14) Idem. at 236.
(15) Idem. at 232.
(16) Idem. at 233.
(17) Idem. at 236.
(18) Idem. at 234.
(19) It should however be pointed out that Israel somewhat hardened its stand in November 1949. See for instance the statement made on Nov. 2, 1949, in the General Assembly Ad Hoc Political Committee by the Israeli representative, Mr. Sharelt, GAOR Ad Hoc Political Committee, Forty-Fourth Meeting, at 261–264, and by Mr. Eban, Idem. Forty-Ninth Meeting, Nov. 29, 1949 at 293–300. Nevertheless, Israel still upheld the U.N. authority to consent to any definitive settlement. Thus, for instance, Mr. Sharett stated the following: ‘As to the function of supervision in the area controlled by Israel, his delegation believed that the best way to ensure its effective discharge was through an agreement solemnly to be concluded, by virtue of a special resolution of the General Assembly, between the United Nations and the Government of Israel, providing for the obligations of that Government and for the prerogatives of the United Nations in that regard’ Idem. at 264, para. 72. As for the statement by Mr. Eban, see for example, Idem. paras 41 at 297; 54 at 299; and 56.
(20) International Status of South Africa, Advisory Opinion of 11 July 1950,  I.C.J. 128 at 143.
(22) For an examination of Jordan's stand see Safaer, The Political Status of Jerusalem in the Hashemite Kingdom of Jordan, 1948–1967, Middle Eastern Studies (1978–79) at 75–77.
(23) The Jordanian representative stated among other things that ‘The Government of the Hashemite Kingdom of the Jordan…had the greatest respect for the wishes for the international community represented in the United Nations’ GAOR Ad Hoc Political Committee, 46th Meeting, November 26, 1949, para. 73, at 276. He also stated, while insisting on the fact that ‘the existing system of control and protection in Jerusalem could [not] be modified in any way’, that his Government ‘hoped that the Committee would duly consider and appreciate the arguments it had submitted’. Idem. para. 77, at 277.
(24) Lauterpacht, at 23. See also at 23–36.
(25) Idem. at 36.
(26) To this effect see also Blum, The Missing Reversioner, Reflections on the Status of Judea and Samaria, 3 Isr. L. Rev. 279, (1968); Schwebel.
(27) Lauterpacht, at 41, 45.
(28) Jennings, The Acquisition of Territory in International Law, 55 (1963).
(29) See Articles 42–56 of the Regulations annexed to the Hague Convention IV Respecting the Laws and Customs of War on Land, 1907, 36 US Stat. 2227.
(30) Article 2(4) of the U.N. Charter.
(31) Schwebel, at 345, has argued that the notion that ‘defensive conquest’ and ‘the taking of territory which the prior holder held [unlawfully]’ legitimize the acquisition of sovereign rights over a territory ‘must be read in particular cases together with other general principles, among them the still more general principle of which it is an application, namely, that no legal right shall spring from a wrong, and the Charter principle that the Members of the United Nations shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state’. With all due respect, it is submitted that this view is unsound. In the case at issue, the fact that Jordan unlawfully attacked Israel in 1948 and then in 1967 and that after the first conflict Jordan acquired control over Eastern Jerusalem, simply means that its resort to force was in breach of Article 2(4) of the Charter as well the corresponding general principle and that it did not acquire any sovereign rights over that territory. It does not follow at all from that premise that ‘Israel has better title in the territory’ in hand. I cannot see why the fact that Jordan violated international Law and only gained de facto control over a territory could result in Israel acquiring a right over the same territory simply because of her acting in self-defence. The only logical and sound inference from the aforementioned premise is that neither Jordan nor Israel ever acquired sovereignty over Jerusalem.
(32) Jennings, at 56, and see generally at 52–68.
(33) Principle I, para. 10 of the Declaration (adopted on October 24, 1970 by consensus), provides that ‘No territorial acquisition resulting from the threat or use of force shall be recognized as legal’. For the full text of the Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation among States in Accordance with the Charter of the United Nations, see U.N. General Assembly, 25th Sess., Doc. ARES/2625(XXV).
(34) See Arab Bank v. Barclays Bank, L.R.  A.C. 495, 498, reported in I. Whiteman, Digest of International Law, at 699 (hereinafter ‘Whiteman’). See also the statement made in 1950 by Lord Hendersen in the House of Lords and reported in Hassan Bin Talal, at 25 and n. 41.
(35) Whiteman, at 595 (emphasis added).
(36) Id. at 594.
(37) Id. (emphasis added).
(38) Dep't. St. Bull., July 17, 1967, at 60.
(39) On the authority of the Custodian under Israeli law, see 4 Laws of the State of Israel, (LSI) at 68 (1950), in particular, see Art. 2. See also Israel Government Yearbook (1958) at 235.
(40) Text (in Italian) in Rivista di diritto internazionale, at 321–322 (1960).
(41) On the advisory opinion of the Consiglio di Stato see Sereni, La situazione giuridica di Gerusalemme, Foro italiano, 1960, IV, 205 ff (who, however, takes a different view from this writer).
(42) For the stand of Italian authorities on the question of the Middle East, see the statement quoted infra, note 54 as well as the various statements adopted by the Foreign Ministers or the Head of State of the EEC countries (see for example the one quoted infra, note 72).
(43) On this issue, see Malawer, Anticipatory Self Defence Under Article 51 of the United Nations Charter and the Arab–Israeli War, 1967 in Problems, vol. VIII, no. 1–2 at 14 (June 1970). For the general legal criteria of anticipatory self defence, see McDougal & Feliciano, Law and Minimum World Orders at 231 (1961).
(44) See text of the Law and Administrative Ordinance (Amendment No-11) Law, 21 LSI at 75 (1967). Other Israeli Legislation affecting Jerusalem are Municipalities Ordinance (Amendment No.6) Law, Id. Protection of Holy Places Law, Id. at 76.
(45) See, e.g., the judgment delivered on March 10, 1969 by the Supreme Court of Israel in the Hanzalis' case (French translation in 98 Journal de Droit International, 1971 at 345). See also the comments by Shaki, Id. at 356–357.
(46) Basic Law: Jerusalem, Capital of Israel in 34 LSI at 209 (1980).
(48) For a survey of these resolutions, see Jones, The Status of Jerusalem: Some National and International Aspects in Moore (ed.), The Arab–Israeli Conflict Readings and Documents at 223 (1973); Cattan; at 202 and passim; Plaff, Jerusalem: a Keystone of an Arab–Israeli Settlement; Id. at 273 and passim; Mallison & Mallison, at 211–228; Reddaway, Jerusalem and International Organizations (reneotyped), at 7 and passim (1979); Rostow, Palestinian Self-Determination: Possible Futures of the Unallocated Territories of the Palestine Mandate, Yale Studies in World Public Law, at 162 and passim (1980).
(49) See, for example, 57 Dep't St. Bull. July 31, 1967 at 148; Id. July 28, 1969, at 76; Digest of United States Practice in International Law 1976, at 634–635; 1977, at 922–925; 1978, at 1557, 1579–1580; 1979 at 258.
(50) See Brit, Y.B. Int'l. L. at 481 (1980); Id. at 514–517, (1981); Id. at 366, 531–534 (1982); Id. at 459, 538–539, (1983).
(51) See, e.g., 26 Annuaire francais de droit international, at 919–920, (1980), Id. at 256, (1983).
(52) See 44 Zeitschrift fur auslandisches offentliches Recht and Volkerrecht, at 503 (1984).
(53) See 15 Revue Belge de droit international, at 616 (1980).
(54) See 3 The Italian Y.B. Int'l L. at 418 (1977); 4 at 224–227, (1978–79); 5 at 301, (1980–81).
(55) See, e.g., Netherlands Y.B. Int'l L. at 151, (1970) as well as The Times, Feb. 11, 1981.
(56) See 15 The Canadian Y.B. Int'l. L. at 346 (1977); 17 at 340–341 (1979).
(57) See Oda and Owada (eds) 1982, The Practice of Japan in International Law 1961–1970, at 6–7 (1982).
(58) See the Island of Palmas case (U.N., Reports of International Arbitral Awards, II, 838–856) the Clipperton Island case (Id. at 1108–111), and the Eastern Greenland case (P.C.I.J., Ser. A/B, no.53. In general, on this subject see the classical work by R. Ago, Il requisito dell'effetività dell'occupazione in diritto internazionale (Roma, 1934)).
(59) In addition, as I have already pointed out above (Section 2), the undertaking of Israel and Jordan serves to exclude the possibility of their acquiring sovereignty without U.N. assent, should the mistaken theory of Jerusalem as terra nullius be upheld. Indeed, assuming that Jerusalem became a ‘territory without sovereign’ after the British authorities relinquished it, Israel and Jordan could not acquire sovereignty simply by meeting the requirements of general international law. For they had both assumed the conventional obligation vis-à-vis the United Nations and its Member States to refrain from changing the legal status of Jerusalem without the U.N. assent. This obligation would of necessity overrides customary international law to their advantage.
(60) See, for instance, the works by Schwebel and Blum.
(62) It stands to reason that this recognition cannot be granted at whim, but should be motivated by special circumstances fully warranting an exception to the ban on acquisition of sovereignty by force.
(63) Lautetpacht, at 34–36.
(64) Id. at 47–51.
(65) See, for example, the works by Schwebel and Blum.
(66) Mallison and Mallison, at 228; Reddaway at 8–13.
(67) In 1969, during the discussion on the Foreign Ministry's budget which took place in the Belgian Senate, the official position of the Belgian Government on the question of Jerusalem was set out as follows: ‘Dans son discours prononce lors de la session extraordinaire de l'Assemblée générale des Nations Unies en 1967, le ministre des Affaires étrangères a exprimé la préoccupation du governement belge quant au sort de Jerusalem. Il demeure favorable à l'établissement d'un statut international des lieux saints qui en garantirait le libre accès aux fidèles de toutes les religions’. Report in Revue Belge de Droit International, at 278 (1971).
(68) In 1971, replying to a question from a Senator, the Belgian Foreign Minister declared in the Senate the following; ‘Je voudrais rappeler au Senat que la Belgique demeure fidèle à la décision du 29 novembre 1947 de l'Assemblée générale des Nations Unies qui prévoyait un territoire international pour Jerusalem corpus separatum. L'Assemblée générale des Nations Unies, en juillet 1967, c'est-à-dire après la reprise des conflits, et le Conseil de sécurité, le 21 mai et le 23 juillet 1969, ont invite l'Etat d'Israel à renoncer à l'annexion de Jerusalem et à s'abstenir de toute disposition visant à modifier le statut de la ville. La Belgique a approuvé ces dispositions du Conseil de sécurité et de l'Assemblée générale des Nations Unies.
Des lors, les principaux pays occidentaux: les Etats-Unis, la Grande-Bretagne, la France, I'Italie, l'Espagne, la Grèce et la Turquie maintiennent à Jerusalem des consuls généraux.
Respectant le principe du corpus separatum, l'exequatur n'est demandé ni aux Israeliens, ni aux Jordaniens. Les autorités israeliennes ne sont guere favorables au maintien de ces consuls dans cette situation, mais qui est conforme à l'attitude que la plupart des gouvernements occidentaux, y compris le gouvernement belge, ont prise. Cette situation particulière explique le caractère délicat des fonctions de consul général à Jerusalem, puisque le titulaire doit entretenir des relations avec les autorités locales, qui sont israeliennes, sans pour autant reconnaître l'annexion de la villeʼ Report in Revue Belge de Droit International, at 266 (1973).
(69) See U.N.Y.B at 40 (1980).
(70) On the occasion of the debate in the U.N. on the occupation of Eastern Jerusalem resulting from the June War, several States suggested that Jerusalem should be placed under permanent international administration, as a corpus separatum, with special guarantees for the protection of the Holy Places. This stand was taken by Argentina, Brazil and Spain (U.N.Y.B. at 210 (1967), which explicitly referred to G.A. Resolution 181 (II) of 29 November 1947, as well as by Uruguay and Venezuela, Id. Furthermore, 20 countries (Argentina, Barbados, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Guyana, Honduras, Jamaica, Mexico, Nicaragua, Panama, Trinidad and Tobago and Venezuela) put forward a proposal (draft resolution A/L. 523 Rev. 1) which among other things reaffirmed, as in earlier recommendations, the desirability of establishing an international regime for the City of Jerusalem, for the consideration of the Assembly at its next session. True, this draft was not adopted because it failed to obtain the required two-thirds majority (it received 57 votes in favour, 43 against with 20 abstentions: Id., at 220). Although it did not acquire the status of a General Assembly Resolution, that draft is of great importance at least in the following respect: it shows that the 20 co-sponsors, as well as other states which voted in favour of it, clung to the idea of the internationalization of Jerusalem.
(71) See The Guardian, 27 August 1979 as quoted by Hassan Bin Talal, at 49 and n. 86.
(72) See EEC Bulletin, 1980, no. 6, para. 1.1.6 sub-para. 8.
(73) See U.N.Y.B. at 401 (1980).
(74) It seems that this position was to some extent adumbrated by the U.S. representative to the U.N. in the statement he made on September 25, 1971, in the U.N. Security Council. He said the following: ‘…In our view, the ultimate status of Jerusalem should be determined through negotiation and agreement between the Governments of Israel and Jordan in the context of an overall peace settlement, taking into account the interests of its inhabitants, of the international religious communities who hold it sacred, and of other countries in the area’. Dept. St. Bull at 469 (1971).
(75) The legal consequences of the illegality of the Israeli annexation of Eastern Jerusalem were also drawn on the domestic plane. Thus, for instance, a Dutch Bill on naturalization was changed in the Netherlands Parliament to take account of the legal situation existing in Jerusalem. The Bill mentioned the place and date of birth of an applicant for naturalization as follows: ‘Jerusalem (Israel), June 20, 1923’ (it actually concerned Eastern Jerusalem).
In this connection the following observation was made in Parliament, ‘Since this annexation has never been formally recognized, it is hardly possible to state that, under international law, this zone belongs to Israel. In connection with this application for naturalization the Bill mentions that Jerusalem is situated in Israel. How this is to tally with the Minister's statement that these indications are based upon the present status under international law of the area concerned?’ The Government shared this view and the Bill was changed to the effect that ‘Jerusalem (Israel)’ was replaced by ‘Jerusalem (old city, Jordan), presently under Israeli administration’. See Netherland Y.B. Int'l. L. at 151, (1970).
(77) See text of the Agreements in The Camp David Summit, U.S. Dept. St. Pub. 8954, Sept. 1978).
(78) See M. Khalil (ed.), (1962) The Arab States and the Arab League—A Documentary Record, at 166.
(79) There are many U.N. Resolutions confirming this right. See, e.g., Resolution 2672 C on Dec. 8, 1970 in U.N. GAOR. Supp. 28 at 73–74; Res. 39/17, November 23, 1984.