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International Law and ReligionHistorical and Contemporary Perspectives$

Martti Koskenniemi, Mónica García-Salmones Rovira, and Paolo Amorosa

Print publication date: 2017

Print ISBN-13: 9780198805878

Published to Oxford Scholarship Online: September 2017

DOI: 10.1093/oso/9780198805878.001.0001

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‘If I forget thee, O Jerusalem’

‘If I forget thee, O Jerusalem’

Religion, International Law, and Jerusalem

Chapter:
(p.269) 12 ‘If I forget thee, O Jerusalem’
Source:
International Law and Religion
Author(s):

Reut Yael Paz

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198805878.003.0013

Abstract and Keywords

The holiness of Jerusalem—the house of the one God—is central to the three monotheistic religions: Judaism, Christianity, and Islam, and, because of this, also to global politics and international law. But Jerusalem is also where twentieth-century international law—as a civilizing, Western, and modern project intended as a counterpoise to the extremities of religious differences and passions—repeatedly fails. There is one interesting exception. During the Berlin Congress of 1878, Western European imperial powers integrated an Eastern status quo regime first legalized by the Ottoman firmans (decrees) that had governed—and still govern—the city’s holy places since the sixteenth century. This chapter examines the complex relationship between monotheism, international law, and Jerusalem by unpacking one article—Article LXII of the Berlin Treaty (1878)—that incorporated the custom of ‘Status Quo’ formulated by Jerusalem’s Ottoman, Oriental, and Muslim rulers into the predominantly Christian European Law of Nations.

Keywords:   Jerusalem, Berlin Treaty (1878), Status Quo, Tanzimat, Orientalism, Crimean War, Christian missionarism, the Concert of Europe

  • If I forget thee, O Jerusalem, let my right hand forget her cunning.
  • If I do not remember thee, let my tongue cleave to the roof of my mouth;
  • If I prefer not Jerusalem above my chief joy.1

Psalms 137.5–6.1

Introduction

It took the Vatican no less than forty-five years to come to terms with the establishment of the Jewish State in Israel. And even then it was the initiation of a peace process between the Palestinians and Israelis during the Madrid Conference (1991) that prompted the Holy See to reconsider its non-existent relationship with Israel.2 The monumental bilateral treaty entitled the Fundamental Agreement between the Holy See and the State of Israel was signed on 30 December 1993. Full diplomatic relationships followed a year later.

There are abundant reasons and possible explanations for the long postponement of the Vatican’s acceptance of Israel. It is telling that most of the conventions signed by the Holy See since Vatican II were signed with European and/or Latin American countries ‘where Catholicism, or at least Christianity, has had and continues to have considerable influence’.3 It is inevitable that matters get more complicated with regards to the Holy Land due to the convoluted history between the Jews and Catholics.4 Equally problematic were the concrete issues of the territorial (p.270) sovereignty, property rights, and tax exemptions of the Roman Catholic Church within the newly established Jewish State, and the latter’s seizure of more Christian and Muslim properties in the Old City since 1967.

Briefly put, by the early 1990s—as the Fundamental Agreement seems to suggest—the Catholic Church had re-evaluated some of its earlier goals regarding the Holy Land and chosen for all intents and purposes to accept, even if not embrace, the Jewish State as a matter of fact. That the Holy See accepted the de facto existence of the Jewish State in the Holy Land does not however mean that it has given up on the possibility of direct Catholic control of the holy places and the Holy Land, or that it has abandoned its previous aspirations to establish a protectorate of the holy places. Neither should it mean that the Holy See surrendered its hope for the internationalization of the city that would ideally keep the holy places away from both Arab and Israeli sovereignty.5 In fact, through the Fundamental Agreement, it both accepted the existence of the state of Israel and sustained its objectives about the Holy Land. The focus here is on how this was achieved. In other words, how did the Vatican manage to retain its abstract aspirations to keep a foothold in the holy places while tolerating the presence of the Jewish State there?

An understanding of how this was accomplished leads us to the double mention of the capitalized ‘Status Quo’ in Article 4 of the 1993 Fundamental Agreement,6 that in turn points to the two earlier Ottoman firmans that had orchestrated the sharing of the Holy Land’s holy places since 1757 and 1852 respectively.7 More specifically, in 1852, after yet another attempt by the European empires to internationalize the holy places in Jerusalem, Bethlehem, and Nazareth, Sultan Abdul Mejid decided to uphold without alteration the concessions made to the Christian communities living in the area since 1757.8 The sultan’s decree of 1852 was the result of a careful examination conducted by a committee of lawyers appointed by the Porte (the central government of the Ottoman Empire) and which ‘was meant to serve constantly and forever as a permanent rule’.9 This—as the 1993 (p.271) Fundamental Agreement substantiates—turned out to be the case for a very long time.

Although the Fundamental Agreement relies on this Status Quo for the first time in recent history, the emptiness of the very term ‘Status Quo’ is much as it was in the earlier versions,10 Article LXII of the Treaty of Berlin (1878) and Article IX of the Treaty of Paris that concluded the Crimean War (1856).11 The ensuing chapter examines some of the religious images that are at play in Article 4 (1) of the Fundamental Agreement by linking it to its predecessors. After discussing several theoretical/methodological issues, this chapter examines the different circumstances underlying the earlier treaties, which climaxed in Berlin when an Ottoman, Oriental, and predominantly Muslim Status Quo was first incorporated into the (Christian European) Law of Nations.

While the Fundamental Agreement confronts religious matters overtly, despite the fact that its main purpose was to settle property rights and tax-related issues,12 the Berlin Treaty, in contrast, treats religious issues with more ambivalence and contradictions. This mirrors the contemporary fin de siècle context in which religion acted as the main identifying but also identity-giving element, while at the same time the political dangers inherent in a national identity based on religious affiliation were beginning to be understood. The idiosyncrasy of this clash only increases when we consider that the roots of the Berlin Conference go back to Article IX of the Treaty of Paris (1856) that concluded the Crimean War, which was the last European religious war fought in the modern era over the Holy Land. There is a clear causal relationship between the religious grounds for the Crimean War, the Treaty of Paris, and even the Treaty of San Stefano (1878) that paved the way for the Treaty of Berlin, and the integration of the abstract and (Oriental) Status Quo regime.

The leading hypothesis here is that it could not be sheer coincidence that the Berlin Conference, which paralleled the dawn of the international legal project, remains religiously ambivalent. The more openly religious content of the past is introduced into international law via the more abstract Status Quo. The contingent relationship between Christianity, Orientalism, and international law makes it equally fascinating that an Ottoman, Eastern, Oriental, and essentially Muslim Status Quo regime has been integrated internationally. While this amalgamation was the result above all of European requirements for a balance of power, it is nonetheless nothing short of an incredible historical phenomenon that such a Status Quo regime has been reaffirmed at the end of the twentieth century through the 1993 Fundamental Agreement between the Holy See and the Jewish State.

(p.272) On Matters of Theory and Method: Christian Missionarism and International Law

This chapter builds on a recent contribution I dedicated to the relationship between the ‘supra-structures’ of ‘Religion, Secularism and International Law’.13 That chapter unravels the interwoven, albeit asymmetrical relationship between these supra-structures. Religion generates everything essential in society. As Émile Durkheim phrases it, the very idea of society is ‘the soul of religion’.14 In its Western, European, Christian version it precedes secularism, which precedes but also pervades international law, one of secularism’s many façades.15

Building on this earlier contribution’s conclusions, I argue that secularism and international law actually orbit around Christianity’s profound missionary impulse.16 This missionary character remains disconcerting, even when the differences between Western Christianities are taken out of the equation.17 After all, almost by the law of inertia, such missionarism is bound to maintain its movement in the direction of the non-Christian ‘Other’. This remains true—albeit played out in different forms—for Christianity’s secular heirs, international law included.18 Hence, there is a clear Christian bias in international law, which is still to be reconciled, if not overcome altogether.19

In this chapter I take this a step further to examine how such Western Christian monotheism—through international law meets its ‘Eastern’ Other.20 More specifically I ask how the problematic schism between ‘East’ and ‘West’ that Edward W. (p.273) Said terms ‘Orientalism’ reveals itself in the very specific instance of the Status Quo that still governs the holy places in the Holy Land today.21

It is worth bearing in mind that given the infinite sources, methodological tools, previous studies, and possible research alternatives embodied in linking religion, international law and Jerusalem, it is almost impossible to discover much that is new.22 The historically laden concept of Orientalism (and its dissenters) is not entirely helpful in narrowing the field of research, either. In fact, even the more specific focus on the Status Quo regime of Jerusalem’s holy places is not enough of a limitation. The controversies linked to contemporary Status Quo-related matters also exceed the intention of this chapter.23 Moreover, I avoid the explicit examination of the Jewish and/or Muslim complexities regarding the Temple Mount—one of the holiest places in the world—which has also been covered by the Status Quo since Moshe Dayan endorsed it in 1967. These complexities receive enough attention elsewhere.24

Bearing in mind Christianity’s close affinity to international law (as a presumably secular, rational, and modern profession),25 it remains more relevant to focus on the sites regarded as holy by the different Christian sects.26 Because this cannot exclude intra-faith intricacies, the following paper is confined to briefly unpacking the religious images that loom over the ‘internationalization’ of an essentially Eastern, non-Christian, and ‘Oriental’ Status Quo regime through one article, (p.274) Article LXII of the Berlin Treaty (1878) that then reappears, inter alia, in the Fundamental Agreement (1993).

In order to understand the dramatic aspect behind such incorporation I construct a historical paradigm through a two-fold axis (see Figure 12.1). The first axis links what could very loosely be defined the West together with the ‘its’ opposite, the Ottoman, Oriental, and Muslim East. The second axis links mid-nineteenth century European (Bismarck-led) Realpolitik and/or principle of balance of power (that includes the Berlin Conference in 1878) together with the principle of Status Quo.27

‘If I forget thee, O Jerusalem’Religion, International Law, and Jerusalem

Fig. 12.1 Balance of Power and Status Quo

More concretely, the purpose here is to recognize the historical link between the Eastern Status Quo meticulously spelled out in Article LXII of the Berlin Treaty on the one hand, and on the other, the nineteenth-century imperial internationalism rooted in the profoundly fragile European balance of power that relied on avoiding another imperial war in the West. The suggestion below is two-fold: First, Otto von Bismarck’s success in unifying Germany—by disrupting Europe—was later sustained through a foreign policy that established a relatively peaceful balance in Western Europe. Second, the ‘butterfly-effect’ consequence of this was the preservation of the holy places’ Status Quo, but also the Occidental/Oriental schism that is part and parcel of Jerusalem’s presence today.28

The holistic picture I wish to portray focuses on the Holy Land’s holy places: spaces that form a perfect meridian through which both the East/West (p.275) axis and the Status Quo/Balance of Power axis meet. Other aspects are necessarily at play here as different and important parts that sustain the powerful relationship between the East/West and Status Quo/Balance of Power axes: the differences between the three Abrahamic religions; Orientalism that ultimately encroaches on the geneses of the pseudo-neutral term of international law; the Concert of Europe; and even the Crimean War. The history of the Status Quo can hardly be told in a linear, clear-cut, or orderly fashion, even if organized along such geometrical axes. Thus, although the narrative below starts with the historical context of the Western Balance of Power and moves to that of the Eastern Status Quo, it only underlines several important fragments that exemplify the complexities that remain central to the holy places in the Holy Land today.

Western ‘Concerted’ Balance of Power Meets Eastern Status Quo

The space in question here fluctuates from the ‘Occident’ to the ‘Orient’, where the remnants of the Napoleonic Wars were experienced differently. The period under scrutiny is the second part of the nineteenth century. The question on everyone’s minds (especially imperial European minds) was how to inhibit the social unrest that caused the French Revolution and still lurked beneath Europe’s surface.29 The solution was thought to lie in widening and internationalizing the world in general and the East more specifically.

But the meaning of this internationalism remained an exclusively Western, imperial, and European question. The conservatives sought closer imperial networking that would restore the European balance of power necessary for the survival of the existing dynasties,30 while the liberals hoped to change that which ‘had been a sovereign’s club’ into ‘a family of independent nations’.31 Eventually, the conservatives took the lead and formed the European Concert. This was essentially the first union ‘of the European great powers, founded on their shared willingness to engage in systematic consultation and cooperation’.32 This does not mean (p.276) that the liberal critique evaporated. Instead, a certain ‘marriage of convenience’ between the liberals and the conservatives developed. This marriage guaranteed an ever-growing gap between imperial Europe—where the Concert maintained its fragile balance of power—and everywhere else that was granted, whether they wanted it or not, the liberal notion of self-determination. This opened the non-European Other to both nationalism and international agendas.

In effect, by founding the Concert of Europe, the four powers—Austria, Prussia, the United Kingdom, and Russia—only augmented their importance. Swiftly, the Concert became the first exclusive club of sovereign powers. Significantly, the geopolitical shift in ex-Napoleonic Europe from the ‘centre’ (France and Austria) to its ‘margins’ (Britain and Russia) heightened the importance of the expansion to the East, which was now being further appropriated through the materiality of texts, languages, and civilization.33 Thus, from being a geographical location adjacent to Europe, the Orient conveniently became the Near East, and later, from the American perspective, the Middle East. After all, it was most useful that from a Western European perspective there is always another, more distant East for the West to find. In its wake came the consequent oppressive imperial regulations necessary to ensure that the Orient, the Levant and the ‘East’ by and large fitted this picture.34

Here Edward Said’s notion of Orientalism is enlightening, even if some of the justified critique of his approach is kept in mind.35 By now, Said’s argument—that Orientalism as a complete governing structure was dictated by the European hegemons—is scarcely in dispute. Accordingly, European supremacy works through a two-fold construction: First, the Orient remained ‘the place of Europe’s greatest and richest and oldest colonies, the source of its civilization and languages, its cultural contestant, and one of its deepest and most recurring images of the Other’. Second, Orientalism is something that ‘can be discussed and analysed as the corporate institution for dealing with the Orient—dealing with it by making statements about it, settling it, ruling over it. This way, Orientalism as a Western (p.277) style for dominating and restructuring sustains authority over the Orient.’36 From our perspective it is significant to acknowledge how both Orientalism and international law, or in its original name the Law of European Nations, were interchangeably sought in order to Orientalize (through a Westernizing pretext) the rest of world.

The East as an international (missionary and/or legal) career

It is essential to note that exchanges between Orientalism and international law are inherent to both projects. According to Jean Allain, the nexus between the Orientalist thesis and international law is easily ‘found in the use of “facts” propagated by Orientalists which allowed for the great divide to emerge in international law between “civilized nations” and “backward territories” ’.37 This is perfectly exemplified by the scholarship of John Westlake (1828–1913). Together with the other ten founding members of the first institute of international law, the Institut de Droit International (1874), Westlake appropriates ‘the juridical conscience of the civilized world’.38 Later he argues in Chapters on Principles of International Law (1894) ‘that regions of the earth designated as “uncivilized” … ought to be annexed or occupied by advanced powers’.39

Benjamin Disraeli was the first to note in his renowned novel Tancred (1847) that ‘the East is a career’. While ostensibly this is still the case, during the second half of the nineteenth century, university faculties opened oriental and international legal studies faculties with a fully developed curriculum across Europe. Fortunately, the exchanges between both projects (and careers) receive sufficient attention elsewhere.40 What remains interesting and relevant here is how both these essentially imperial projects dialectically interacted with European Christianities in order to cement the Western ‘civilization’ across the globe.

As mentioned above, the missionary nature of Christianity was inherited by its succeeding supra-structures: imperialism, Orientalism, and international law. Edward Said formulates this with much precision when he argues that what was (p.278) perceived to be religion’s ‘existential paradigms’ was ‘reconstituted, redeployed, redistributed’ in modern secularism.41 In fact, Said’s entire thesis is structured on the argument that

Essential aspects of modern Orientalist theory and praxis (from which present-day Orientalism derives) can be understood, not as a sudden access of objective knowledge about the Orient, but as a set of structures inherited from the past, secularized, redisposed, and re-formed by such disciplines as philology, which in turn were naturalized, and laicized substitutes for (or versions of) Christian supernaturalism.42

This reached a new peak when it was argued that the Crimean ‘World War’ began when several European powers came to rescue ‘their’ corresponding Christian communities in the Holy Land. But just as this religious aspect looms in this war’s background, so does its Easternness: lest we forget, in Russian historiography the Crimean War is referred to as ‘the Eastern War’.43 Arguably, it was only after Russia lost to an alliance made of Britain together with France, the Ottoman Empire, and Sardinia—in the bloodiest war to date—that it was understood that the Christian religious issues should be forced into the closet.

The Concert of Europe and its East (a.k.a. Crimea and the Holy Land)

Clearly, the Eastern and/or the Crimean War prompted new worries. The force of modern-day technology (and the medical failures that then forced the professionalization of modern nursing of the wounded à la Florence Nightingale) hardly escaped anyone.44 Neither could its relationship to religion and/or the East. Cardinal John Henry Newman (1801–90)—one of the leading religious figures of the nineteenth century—made, for instance, a specific reference in 1853 to Oriental Islam to justify Britain’s intervention in the Crimean War, although this had very little to do with Islam itself.45

The uncomfortable aspect that Cardinal Newman—an Evangelical priest of the Church of England who later converted into the Roman Catholic Church—wished to ignore, was that Christianity was fragmented to begin with.46 Such fragmentation was made too visible by the inability of the diverging Christianities to agree over issues of the custodial rights of the holy place.47 (p.279) After all, Christianity’s universal/missionary agenda makes any internal conflicts and ruptures more difficult to accept and/or explicate on philosophical and/religious grounds. Adding Orientalism and Islam, the predominant religion of the East, to the equation became a handy ‘solution’.48 This way the differences within European Christianities got a new and larger perspective, which helped in sustaining a certain level of peace within the European context.

In actuality, the Ottomans—after centuries of experience—had actually sustained their Christian populations in the Holy Land mostly peacefully. This changed only when the local Christian communities begin to mirror the socio-political destabilization of Europe’s balance of power, together with the nineteenth-century Oriental agenda.49 Such parallelism meant that it got harder and harder for the Ottoman bureaucracy to satisfy all of its Christian subjects.

Irrespective of the religious issues, the real burning issue was—as spelled out in the Treaty of Paris (1856) that concluded the Crimean War—the need to reduce Russia’s imperial power in the Black Sea.50 This in turn meant the need to ensure that the Ottomans kept their Empire’s gates open to the Europeans. Ergo, ‘the Ottoman Empire became an area in which “the Concert of Europe” was working out its manoeuvres to preserve the balance of power’.51

This is not to imply that the Concert followed a clear strategy in its dealing with its Orientalist-constructed Other, the Ottoman Muslims. But a clear strategy was redundant. It was enough to remain within the guidelines set by the Oriental and/or the European Law of Nations, which provided the necessary flexibility and all-inclusiveness required. Such an ‘approach’ enabled the rapid transformation of the Ottoman Empire, known until recently as ‘the terror of the world’, into the ‘sick man of Europe’ that needed to be healed by the big powers.52 Its price—the official acceptance of the Ottoman Empire as an equal member to the Concert of (p.280) Europe—was made affordable by the legal flexibility of the Concert itself. It did not, as discussed further below, entitle the Ottomans to substantial equality.

The Ottoman East enters the West through the Holy Land

It is essential to pause here to appreciate the domino effect that started with the Crimean War and concluded with Article VII of the Treaty of Paris, which ‘declares the Sublime Porte admitted to participate in the advantages of the Public Law and System (Concert) of Europe’.53 The message is loud and clear: The Ottoman Empire’s help in containing the Russian aggressor during the Crimean War is rewarded with an entry ticket to the sovereign equal Concert of Europe ‘club’, and all that it entails. Thus, by opening the Concert of Europe to the Ottoman Empire, the Treaty of Paris unsealed the legal language reserved for the European Christian nations just wide enough to include its Muslim Other. This barely implied equal participation. In fact, it is as if the Concert almost forgave the Ottomans their Islam, Orientalism, Eastern Otherness, and/or ‘in-between’ chair in the European geopolitical map.54

Article VII of the Treaty of Paris admitted the Ottomans into the European Concert. It needs to be read together with Article IX of the Treaty in order to understand an important condition for the Ottoman entry to the Concert of Europe that remains mostly forgotten: namely the sultan’s commitment to the protection of religious freedom and racial discrimination, in particular towards ‘the Christian populations of his Empire’.55 The full article reads as follows:

His Imperial Majesty the Sultan, having, in his constant solicitude for the welfare of his subjects, issued a Firman which, while ameliorating their conditions without distinction of religion or race, records his generous intentions towards the Christian populations of his Empire, and wishing to give a further proof of his sentiments in that respect, has resolved to communicate to the Contracting Parties the said Firman emanating from his sovereign will. The Contracting Parties recognize the high value of this communication. It is clearly understood that it cannot, in any case, give to the said powers the right to interfere, either collectively or separately, in the relations of His Majesty the Sultan with his subjects, nor in the internal administration of his Empire.

While it may be argued that Article IX is almost a requirement given that the Crimean War was officially sparked by religious conflicts, the interest here lies in how it singles out the Christian subjects under the Sultan’s rule. Not only does the Treaty of Paris ignore all other religious minorities that composed the multi-cultural mosaic of the Empire by referring only to Christianity, it also overlooks the need to impose the principle of religious freedom equally on all signatories’ parties. All (p.281) other national and/or religious minorities in the East and/or West are mentioned only as the background for the Christian population. Furthermore, the Treaty of Paris does not unpack the divergent claims of the different Christianities—claims which were responsible for the strife that supposedly sparked the Crimean War.56

Once Article IX is viewed as complimentary to Article VII, it is clear that the acceptance of the Ottoman Empire as a member of the Concert of Europe depended on a binary circumstance: Whereas it was essential that the Ottoman ‘terror of the world’ was weakened, it was equally beneficial that the ‘sick man in Europe’ could nonetheless help the ‘real’ Western powers sort out their imperial issues in the face of another threat from the East. Russia, although predominantly Christian, European, and a member of the Concert since its birth, was cast as another Eastern Other when convenient.57 This proves the flexible hierarchical relationship between Eastern and Western Christianities just as it shows how Western powers resorted to the technique of ‘divide and conquer’ for the ‘elastic’ East. Arguably such a strategy still maintains both Eastern regions, the Crimea and the Holy Land, that are somewhat linked in their contemporary instabilities. However, the bottom line here is that the acceptance of the Ottoman Muslim Empire into the Concert of Europe was preconditioned by the sultan’s commitment to the religious freedom of the Christian populations. This substantiates the inequity of the religious question of both the East and West.

Unpacking these and similar religious biases, discrepancies and hypocrisies that are attached to the Paris Treaty—the document that actually sought to secure both religious freedoms and imperial inclusion—has immense implications. Such dialectics essentially personify the way both Orientalism and international law as Western European civilizing projects have cemented a specifically Christian but also Western bias even when their doors were quasi-opened to their Others.

Despite all efforts, neither the religious nor the ‘Eastern Question’ were resolved in Paris. Escalations in the East, arguably also caused by the Western need to divide and conquer its constructed East, led to the Russo-Turkish Wars and were readdressed in the San Stefano Treaty (1878). This treaty changed very little. Although, as A. J. P. Taylor argues: ‘If the treaty of San Stefano had been maintained, both the Ottoman Empire and Austria-Hungary might have survived to the present day.’58 Perhaps the San Stefano Treaty was more promising than its predecessor, the Treaty of Paris (1856), because it remained silent on minority issues? Be that as it may, in 1878 Otto von Bismarck seized the opportunity to introduce himself as the ‘honest broker’ coming to rescue imperial Europe from ‘the Eastern Question’.59 He was determined to do whatever it took to avoid any unanticipated (p.282) developments—above all another Balkan conflict—that might threaten Europe’s balance of powers.60

In retrospect, Bismarck failed with the East just as he would in the subsequent and more famous conference in Berlin that regulated the Scramble for Africa (1884–85). Despite the similarities between these two conferences, as Eric D. Weitz argues, historians ‘almost never consider the two Berlin meetings together. Diplomatic histories of Europe refer to the Berlin West Africa Conference only in passing, if at all. Historians of Africa almost never discuss the Berlin Congress. Studies in international legal history reproduce this division.’61 Arguably, it was not until the First World War that the imperial powers realized the inherent limitations in maintaining the European balance of power by outsourcing conflicts elsewhere,62 but despite this, Article LXII of the Treaty of Berlin has clearly been a success. Not only does this Status Quo stay more or less intact today, it has also borrowed and integrated an originally Eastern regime into the Christian Law of Nations.

The Integration of the Status Quo from the East by the West

The detail above necessarily sets the stage for the second last sentence of the three paragraphs that compose Article LXII of the Berlin Congress, which reads as follows:

The Sublime Porte having expressed the intention to maintain the principle of religious liberty, and give it the widest scope, the Contracting Parties take note of this spontaneous declaration. In no part of the Ottoman Empire shall difference of religion be alleged against any person as a ground for exclusion or incapacity in matters relating to the enjoyment of civil or political rights, admission to public employments, functions, and honors, or the exercise of the various professions and industries, in any locality whatsoever. The freedom and outward exercise of all forms of worship shall be assured to all, and no hindrance shall be offered either to the hierarchical organization of the different communions, or to their relations with their spiritual chiefs.

Ecclesiastics, pilgrims, and monks of all nationalities traveling in Turkey in Europe, or in Turkey in Asia, shall enjoy the same rights, advantages, and privileges.

The right of official protection by the Diplomatic and Consular Agents of the Powers in Turkey is recognized both as regards the above-mentioned persons and their religious, charitable, and other establishments in the Holy Places and elsewhere. The rights possessed by (p.283) France are expressly reserved, and it is well understood that no alterations can be made in the status quo in the Holy Places. The monks of Mount Athos, of whatever country they may be natives, shall be maintained in their former possessions and advantages, and shall enjoy, without any exception, complete equality of rights and prerogatives.63

At first glance, this is a beautifully written article, particularly if one remains oblivious to the article’s historical context. It is ‘A chorus of affirmation for the principle of religious freedom’ by the six signatories, the United Kingdom, Austria-Hungary, France, Italy, Russia, and the Ottoman Empire.64 Such precise religious, civil, and political freedoms and economic rights are the embodiment of nineteenth-century liberal hopes and dreams.

It is strategically helpful that the formulation remains rather neutral (i.e., the Contracting Parties ‘take note’ of the ‘spontaneous declaration’ by the Ottomans). This ensures the intactness of the sovereign equality of the contracting parties. It also diverts attention from the one-sidedness of Article LXII. After all, while the focus here is the ‘spontaneous declaration’ by the Ottoman Empire, which almost suddenly commits itself to protect and uphold the human rights of all of its national minorities, such a commitment was hardly the common practice of the other contracting parties.

Or, in the words of William Gladstone:

It is … a little amusing to observe with what edifying zeal all the great States of Europe united to force religious liberty upon those new-fledged bantlings of politics, on their very first light of day; and yet these great States have hardly in any case learnt … to adopt it at home.65

Because this partiality may suggest the Treaty’s inadequacy and a general insincerity on the part of the contracting parties,66 it was crucial that the Ottomans were going through their own independent process of reorganization, the Tanzimat period of Westernization (1839–1876).67 These reforms are monumental particularly with reference to religion because it was since 1839 that the subjects of Sultan (p.284) Abdülmecid—Muslim and non-Muslim alike—became instantaneously equal before the law.68

These reforms intended ‘to satisfy European demands for the protection of the Christian communities and to inculcate a notion of national and secular subjecthood’. But the Tanzimat’s agenda69 could hardly be reconciled with the region’s demographics and traditional relationships between majorities and minorities.70 Neither was it easy to accommodate the ‘new laws’ of the Tanzimat with the age-old local customs that the Ottomans pledged to uphold, particularly because such customs and also identities ‘were at once private and public, communal and national, elite and subaltern, modern and traditional’.71

The consequence was not only unprecedented confusion, it soon—as the 1860s Druze-Maronite conflict illustrates—turned extremely violent. As Ussama Samir Makdisi terms it:

On its own terrain, Europeans, Ottomans, and locals were locked in a war over the meaning and direction of the Tanzimat which itself several overlapping discourses, of religious equality, Islamic tradition, political legitimacy, past glory, and present sovereignty, all framed implicitly by Europe-dominated modernity.72

From a Western perspective, it nonetheless made perfect sense that the Ottomans, who first became ‘the sick man of Europe’, now aspired to recover by establishing a more ambitious version of European-style form of government. It was a plus that this includes ‘a spontaneous’ declaration of their dedication to religious, political and economic freedoms and rights even if those remained an abstract aspiration for imperial Europe itself.

European inter-nationalism versus Ottoman international imperialism

Clearly, much is left to be desired when it comes to the concisely mentioned and negatively described Status Quo. All that we are left with is that ‘it is well understood that no alterations can be made in the Status Quo in the Holy Places’. Considering the first sentences of Article LXII—‘ the Sublime Porte having expressed the intention to maintain the principle of religious liberty … ‘—one can assume that the objective of the Status Quo is related to the religious practices of different believers, of whatever nationality, ethnicity and/or specific role. However, the lack of any legal and/or political description of the Status Quo remains both enchanting and challenging, particularly because of all the differences that are mentioned in Article LXII (i.e., Sublime Port, Ottoman Empire, ecclesiastics, pilgrims, and monks of all nationalities, Turkey, Europe, Holy Places, France, and Mount Athos). Nowhere is it explained what this Status Quo means. Where does it come from? How is it to be (p.285) recognized and/or appropriated? By whom? Furthermore, given the reference to all nationalities, what could this mean from an international legal perspective today? In contrast, what did it mean when international law openly conceded its origins as the Christian European Law of Nations?

These questions only become harder to answer when we consider that the term ‘status quo’ poses a consistent difficulty in international law. Susanne Wasum-Rainer—in her attempt to define the ‘status quo’ for The Max Planck Encyclopedia of Public International Law—argues that: ‘In many cases where the term [status quo] is used, it refers to a purely factual and political state of affairs, not a legal one …’ while claiming however that ‘one can talk of international law—of its nature as a decentralized normative order with no single fount—as having a status quo “orientation” ’.73 While this remains a troublesome approach to positive international law, it is hardly surprising that political realists embrace it. Hans J. Morgenthau (1904–80), one of the founding fathers of the realist school in the twentieth century, believed that the principle of status quo is more efficient in limiting the powers of the state than international law (and/or international morality for that matter).74 Interestingly, the similarities between the status quo principle and that of the balance of power—that, as discussed above, were contingent to one another during the nineteenth century—do not escape Morgenthau. For Morgenthau both principles are vital to the international realist,75 even though both notions expose international law’s ‘Achilles’s heels’.76

This professional Achilles heel only enhances the importance of the Status Quo that still describes the prevailing modus operandi in the Holy Land, in its religious, legal and/or political sense, at least since the seventeenth century. Even Wasum-Rainer singles out this Status Quo. In her words, the Holy Land’s Status Quo ‘describes the preservation of the situation created by the Ottoman decrees of 1757 and 1852, and confirmed in Art. LXII of the Berlin Treaty of 13 July 1878 (“and it is well understood that no alterations can be made in the Holy Places”; Berlin Congress [1878])’.77 Ostensibly, the term Status Quo ‘has had the special technical meaning of the normative regime or set of binding arrangements concerning possession, usage, and ceremony at the holy places’78 since at least 1878. At best, the Status Quo allows the different communities to sustain their religious worship (p.286) peacefully. At worst, contentious issues were said to fall ‘ “under the Status Quo” and no change was permitted’.79

Whatever the ‘original’ flaws of the Status Quo,80 it seems to have been within the interest of both local and global communities to strictly maintain it.81 It is, in other words, impossible to exaggerate the importance of this regime’s success, its imperfections included. Not only is Article LXII borrowed from the Ottoman Empire, which was essentially non-Christian and had an only partially modernized legal system,82 it also manages to do something that remains contested and complex to this day. In fact, today even the very classification of a holy place has no generally recognized definition; although the United Nations made a list of holy places, it remains non-binding.83 As Winnifred Fallers Sullivan terms it: ‘in order to enforce laws guaranteeing religious freedom you must first have religion…. Defining religion is very difficult, particularly at the beginning of the twenty-first century’.84

Conclusion: The Unforgettable Jerusalem

The Status Quo, as mentioned in Article LXII of the Treaty of Berlin and/or its more recent mention in Article 4 (1) of the Fundamental Agreement between the Holy See and Israel (1993), demonstrates a specific presence from an almost forgotten past. This past links the city of God to a once powerful and Muslim Empire that becomes the newest member of a European ‘Western’ union with all its deficiencies (e.g., Christianites, Orientalism, international law, and nineteenth century Realpolitik).

The Status Quo originated in a nineteenth century international legal treaty (which otherwise had mostly expired)—survived the fall of its Ottoman ‘founders’ through the British Mandate (1923–48) and the Jordanian Rule (1948–67), and is still used by the Israeli government. Its persistence remains a historical riddle with many alternative answers. It would be an Orientalist prejudice to discard this history by claiming that the Ottomans succeeded in this, inter alia, because the East is and always was more emotional, passionate, sentimental, zealous, warm, and (p.287) altogether more religious than the rational, sensible, objective, scientific, progressive, cold, and enlightened West.

Instead, the Eastern and non-Christian Ottomans accomplished much through the Status Quo mainly because of their realist approach, which was in its turn based on considerable experience as an international and multicultural Empire. Furthermore, the Ottoman Empire—particularly during the nineteenth century—was predisposed to accommodate Western demands. Such demands, as the Crimean example shows, were not necessarily religious per se. The Ottoman readiness to make such concessions and Western adjustments (i.e., Tanzimat) was not only due to its diminishing power; it was also because it was ‘made’ to understand itself as the foreign and Eastern Other that is doomed to live in the confines of an eternal tension that Orhan Pamuk formulates as ‘Why am I the way I am?’85 This meant that the Ottomans were made to wait by the gate before the West, Europe, and consequently also international law. The Ottoman Empire’s rationalism struck a more balanced and human balance of power for its subjects because but also in spite of these experiences, which encapsulated diversity rather than the idealized national/religious homogeneity alternative promoted in Christian Europe.

After the explosive costs of the Crimean War, which was less about religion and more about the need to reduce Russia’s imperial power in the Black Sea, it was clear—particularly because of Bismarck’s foreign policy approach—that any mention of religious grounds ought to be excluded. Moreover, the Eastern crisis clarified the way that the balance of power at home depended on a certain Status Quo in the East, and, vice versa, that an Eastern Status Quo depended on a Western balance of power. Such mutual dependency was now verbalized through Christianity’s ‘other means’—namely Orientalism and international law. The specific Status Quo ‘offered’ by the Ottomans corresponded well to local religious issues and was smoothly integrated. Not only did it help the balance of power in the West, it demanded relatively little from Western powers. Whether it was entirely coincidental that the needs of the West were simply ‘found’ in the East remains an open question.

There is a big discrepancy between the success of this Status Quo, which is linked to Western nineteenth century Realpolitik enshrined in international law with all its potentialities and limitations, and the shortcomings of twentieth and even twenty-first century attempts to internationalize Jerusalem. As Nathaniel Berman argues, Jerusalem is the perfect example of the inadequacies, weaknesses, and debatable nature of such internationalization to begin with.86 The (p.288) 1993 Fundamental Agreement between the Jewish State of Israel and the Vatican exemplifies this perfectly. As discussed, the Fundamental Agreement cannot be read as implying that the Holy See has given up its aspiration to control, or at the very least internationalize, the holy places in the Holy Land.87 Neither should it be forgotten that the Israeli Knesset has yet to ratify the Agreement altogether!88 Eloquently, Article 4 (1) of the Agreement secures Israel’s de facto ‘commitment to maintain and respect the Status Quo in the Christian Holy Places’ and ‘guarantee of the freedom of Catholic worship’ on the one hand, while on the other it simultaneously safeguards the Vatican’s concrete needs and allows the Church to sustain its future, hypothetical aspirations for more control over the sites.

To sum up, if one of the main achievements of Jerusalem’s Status Quo was, as Raymond Cohen argues, ‘to remove the holy places from the scope of international conflict and so prevent a repetition of the diplomatic crisis that preceded the Crimean War (1853–1856),’89 then the fact that it is still in use is revolutionary. In contrast to today’s overbearing idealistic international law, the Status Quo captures both the realistic need for and the guidelines necessary to a continuing and functioning governance of a holy city that in any case exists twice already—in heaven and on Earth.90

The real elegance of the Status Quo stems from its legal imperfection, because it accomplishes such an incredible undertaking with so little. It does not define what the Status Quo actually means or to which religious communities it refers to; no specific references to ownership/possession are made; in fact, there is no mention to the city of Jerusalem or even the Holy Land. Significantly, the required legal knowledge here is almost taken for granted. Somewhat biblically, it is assumed that when it comes to Jerusalem, it is as if the Abrahamic religions simply know ‘that which has been is that which will be’.91 Arguably, it is for this reason that the Status Quo—together with endless other aspects—helps enshrine our inability but also our unwillingness to forget the City of God.

(p.289) Epilogue

Be it the Status Quo’s Eastern ‘birth’ and/or its Western adoption, one ought to mention another explanation for this unprecedented success: namely its ability to mirror and accommodate the tension intrinsic to monotheism itself. Although the above article mostly focuses on the religious images looming in the background of the interaction between Western Christian balance of power and the Eastern Status Quo, it shows how such an interface facilitates the ‘ancestral relationship’ between the three monotheistic religions in the smallest place provided to it in the Holy Land.

Similarly to most biblical families, the monotheistic family—composed of Judaism, Christianity, and Islam, upon their oversized religious loyalties, subsects, and ethnic groupings—is destined to share the need for parental love and God’s singularity just as it needs to share the same space. Just as Jacob fought Esau to receive the first-born birthright/blessing from Isaac, so do the monotheistic religions struggle for God’s individual love. Such a construct of mutual commitment between God and his monotheistic believer is as serious as the ‘sibling competition’ that ensues. The tension here originates from the fact that both the commitment and the competition are contingent to the existence of a singular God but also the monotheistic family. After all, without Esau, Isaac’s blessing of Jacob would be less prestigious. So without any Other-yet-insider observers and/or competitors the monotheistic idea would lose much of the centrality of God but also of the importance of the traditional/hierarchical social/family structure.

Arguably, it is less difficult to accept the existence of minor differences between sibling religious communities, than the need to share God’s love and his holy places. It remains impossible to overemphasize the radicalism behind the Oneness of God—or Jerusalem.92 It is here that the most significant of monotheism’s psycho-historical consequences takes its shape.

The worship of a one parental and paternal God means that humanity, at least its masculine part, is ‘entitled’ to act in a Godly manner. The contingent hierarchical schism this created has, among other things, formed the relationship between God/humanity, man/woman but also true and false religions. In other words, man’s self-entitlement transformed the world on so many levels but also into so many levels.

(p.290) The need to create hierarchies is exactly where the importance of the differences, however minor, between the monotheistic religions grows. As Sigmund Freud argues of the narcissism of small differences, ‘minor’ differences are not really small. The minor differences that can be detected in the different monotheistic faiths describe ‘communities with adjoining territories, and related to each other in other ways as well, who are engaged in constant feuds and ridiculing each other’.93 One can share much, in other words, without necessarily having more acceptance or understanding. As the monotheistic family shows, it is actually the other way around.94 As Pierre Bourdieu, who took Freud’s point further, explains: ‘Social identity lies in difference, and difference is asserted against what is closest, which represents the greatest threat.’95

The real radicalism and energizing agendas inherent to the monotheistic ‘way-of-thinking’ is therefore the initiation of a competitive relationship between the monotheistic religions: A struggle that almost instantly turned into a deadly clash about ‘who are the real chosen people?’96 While this explains why international law that originated from Christian secularism is inter alia criticized for its attempt to subjugate, civilize, and Westernize the non-Christian Other, it also explains the intransigent attempts by the different monotheistic religions to take possession of ‘their’ holy places in Jerusalem.97

Whatever its imperfections, the awe-inspiring quality of the originally Ottoman Status Quo lies in its ability to permit the diverging monotheistic family members to exist side-by-side while each sustains its individuality. This works more or less well as long as each of the monotheistic religions worships the singularity of a paternal God differently. This difference can only be maintained through a challenging discourse with one another about the centrality of a shared abstract God. That this works in the God’s small and very concrete holy places, is as close as humanity can get to love a singular divinity. Evidently, such love is ‘not a victory march, it is a cold and it is a broken Hallelujah’.98

(p.291) Appendix I Convention: Inter Apostolicam Sedem Atque Israelis Statum

  • Fundamental Agreement between the Holy See and the State of Israel99

  • Signed in Jerusalem, this thirtieth day of the month of December, in the year 1993, which corresponds to the sixteenth day of the month of Tevet, in the year 5754.

Preamble

  • The Holy See and the State of Israel,

  • Mindful of the singular character and universal significance of the Holy Land;

  • Aware of the unique nature of the relationship between the Catholic Church and the Jewish people, and of the historic process of reconciliation and growth in mutual understanding and friendship between Catholics and Jews;

  • Having decided on 29 July 1992 to establish a ‘Bilateral Permanent Working Commission’, in order to study and define together issues of common interest, and in view of normalizing their relations;

  • Recognizing that the work of the aforementioned Commission has produced sufficient material for a first and Fundamental Agreement;

  • Realizing that such Agreement will provide a sound and lasting basis for the continued development of their present and future relations and for the furtherance of the Commission’s task,

  • Agree upon the following Articles:

Article 1

  1. § 1. The State of Israel, recalling its Declaration of Independence, affirms its continuing commitment to uphold and observe the human right to freedom of religion and conscience, as set forth in the Universal Declaration of Human Rights and in other international instruments to which it is a party.

  2. § 2. The Holy See, recalling the Declaration on Religious Freedom of the Second Vatican Ecumenical Council, Dignitatis humanae, affirms the Catholic Church’s commitment to uphold the human right to freedom of religion and conscience, as set forth in the Universal Declaration of Hu-man Rights and in other international instruments to which it is a party. The Holy See wishes to affirm as well the Catholic Church’s respect for other religions and their followers as solemnly stated (p.292) by the Second Vatican Ecumenical Council in its Declaration on the Relation of the Church to Non-Christian Religions, Nostra aetate.

Article 2

  1. § 1. The Holy See and the State of Israel are committed to appropriate cooperation in combatting all forms of antisemitism and all kinds of racism and of religious intolerance, and in promoting mutual understanding among nations, tolerance among communities and respect for human life and dignity.

  2. § 2. The Holy See takes this occasion to reiterate its condemnation of hatred, persecution and all other manifestations of antisemitism directed against the Jewish people and individual Jews anywhere, at any time and by anyone. In particular, the Holy See deplores attacks on Jews and desecration of Jewish synagogues and cemeteries, acts which offend the memory of the victims of the Holocaust, especially when they occur in the same places which witnessed it.

Article 3

  1. § 1. The Holy See and the State of Israel recognize that both are free in the exercise of their respective rights and powers, and commit themselves to respect this principle in their mutual relations and in their cooperation for the good of the people.

  2. § 2. The State of Israel recognizes the right of the Catholic Church to carry out its religious, moral, educational and charitable functions, and to have its own institutions, and to train, appoint and deploy its own personnel in the said institutions or for the said functions to these ends. The Church recognizes the right of the State to carry out its functions, such as promoting and protecting the welfare and the safety of the people. Both the State and the Church recognize the need for dialogue and cooperation in such matters as by their nature call for it.

  3. § 3. Concerning Catholic legal personality at canon law the Holy See and the State of Israel will negotiate on giving it full effect in Israeli law, following a report from a joint subcommission of experts.

Article 4

  1. § 1. The State of Israel affirms its continuing commitment to maintain and respect the ‘Status quo’ in the Christian Holy Places to which it applies and the respective rights of the Christian communities thereunder. The Holy See affirms the Catholic Church’s continuing commitment to respect the aforementioned ‘Status quo’ and the said rights.

  2. § 2. The above shall apply notwithstanding an interpretation to the contrary of any Article in this Fundamental Agreement.

  3. (p.293) § 3. The State of Israel agrees with the Holy See on the obligation of continuing respect for and protection of the character proper to Catholic sacred places, such as churches, monasteries, convents, cemeteries and their like.

  4. § 4. The State of Israel agrees with the Holy See on the continuing guarantee of the freedom of Catholic worship.

Article 5

  1. § 1. The Holy See and the State of Israel recognize that both have an interest in favouring Christian pilgrimages to the Holy Land. Whenever the need for coordination arises, the proper agencies of the Church and of the State will consult and cooperate as required.

  2. § 2. The State of Israel and the Holy See express the hope that such pilgrimages will provide an occasion for better understanding between the pilgrims and the people and religions in Israel.

Article 6

The Holy See and the State of Israel jointly reaffirm the right of the Catholic Church to establish, maintain and direct schools and institutes of study at all levels; this right being exercised in harmony with the rights of the State in the field of education.

Article 7

The Holy See and the State of Israel recognize a common interest in promoting and encouraging cultural exchanges between Catholic institutions worldwide, and educational, cultural and research institutions in Israel, and in facilitating access to manuscripts, historical documents and similar source materials, in conformity with applicable laws and regulations.

Article 8

The State of Israel recognizes that the right of the Catholic Church to freedom of expression in the carrying out of its functions is exercised also through the Church’s own communications media; this right being exercised in harmony with the rights of the State in the field of communications media.

Article 9

The Holy See and the State of Israel jointly reaffirm the right of the Catholic Church to carry out its charitable functions through its health care and social welfare institutions; this right being exercised in harmony with the rights of the State in this field.

(p.294) Article 10

  1. § 1. The Holy See and the State of Israel jointly reaffirm the right of the Catholic Church to property.

  2. § 2. Without prejudice to rights relied upon by the Parties:

    1. a) The Holy See and the State of Israel will negotiate in good faith a comprehensive agreement, containing solutions acceptable to both Parties, on unclear, unsettled and disputed issues, concerning property, economic and fiscal matters relating to the Catholic Church generally, or to specific Catholic Communities or institutions.

    2. b) For the purpose of the said negotiations, the Permanent Bilateral Working Commission will appoint one or more bilateral subcommissions of experts to study the issues and make proposals.

    3. c) The Parties intend to commence the aforementioned negotiations within three months of entry into force of the present Agreement, and aim to reach agreement within two years from the beginning of the negotiations.

    4. d) During the period of these negotiations, actions incompatible with these commitments shall be avoided.

Article 11

  1. § 1. The Holy See and the State of Israel declare their respective commitment to the promotion of the peaceful resolution of conflicts among States and nations, excluding violence and terror from international life.

  2. § 2. The Holy See, while maintaining in every case the right to exercise its moral and spiritual teaching-office, deems it opportune to recall that, owing to its own character, it is solemnly committed to remaining a stranger to all merely temporal conflicts, which principle applies specifically to disputed territories and unsettled borders.

Article 12

The Holy See and the State of Israel will continue to negotiate in good faith in pursuance of the Agenda agreed upon in Jerusalem, on 15 July 1992, and confirmed at the Vatican, on 29 July 1992; likewise on issues arising from Articles of the present Agreement, as well as on other issues bilaterally agreed upon as objects of negotiation.

Article 13

  1. § 1. In this Agreement the Parties use these terms in the following sense:

    1. a) ‘The Catholic Church’ and ‘the Church’—including, inter alia, its Communities and institutions;

    2. b) ‘Communities’ of the Catholic Church—meaning the Catholic religious entities considered by the Holy See as Churches sui iuris and by the State of Israel as Recognized Religious Communities;

    3. (p.295) c) ‘The State of Israel’ and ‘the State’—including, inter alia, its authorities established by law.

  2. § 2. Notwithstanding the validity of this Agreement as between the Parties, and without detracting from the generality of any applicable rule of law with reference to treaties, the Parties agree that this Agreement does not prejudice rights and obligations arising from existing treaties between either Party and a State or States, which are known and in fact available to both Parties at the time of the signature of this Agreement.

Article 14

  1. § 1. Upon signature of the present Fundamental Agreement and in preparation for the establishment of full diplomatic relations, the Holy See and the State of Israel exchange Special Representatives, whose rank and privileges are specified in an Additional Protocol.

  2. § 2. Following the entry into force and immediately upon the beginning of the implementation of the present Fundamental Agreement, the Holy See and the State of Israel will establish full diplomatic relations at the level of Apostolic Nunciature, on the part of the Holy See, and Embassy, on the part of the State of Israel.

Article 15

  • This Agreement shall enter into force on the date of the latter notification of ratification by a Party.

  • Done in two original copies in the English and Hebrew languages, both texts being equally authentic. In case of divergency, the English text shall prevail.

Additional Protocol

  1. 1. In relation to Art. 14 § 1 of the Fundamental Agreement, signed by the Holy See and the State of Israel, the ‘Special Representatives’ shall have, respectively, the personal rank of Apostolic Nuncio and Ambassador.

  2. 2. These Special Representatives shall enjoy all the rights, privileges and immunities granted to Heads of Diplomatic Missions under international law and common usage, on the basis of reciprocity.

  3. 3. The Special Representative of the State of Israel to the Holy See, while residing in Italy, shall enjoy all the rights, privileges and immunities defined by Art. 12 of the Treaty of 1929 between the Holy See and Italy, regarding Envoys of Foreign Governments to the Holy See residing in Italy. The rights, privileges and immunities extended to the personnel of a Diplomatic Mission shall likewise be granted to the personnel of the Israeli Special Representative’s Mission. According to an established custom, neither the Special Representative, nor the official members of his Mission, can at the same time be members of Israel’s Diplomatic Mission to Italy.

  4. (p.296) 4. The Special Representative of the Holy See to the State of Israel may at the same time exercise other representative functions of the Holy See and be accredited to other States. He and the personnel of his Mission shall enjoy all the rights, privileges and immunities granted by Israel to Diplomatic Agents and Missions.

  5. 5. The names, rank and functions of the Special Representatives will appear, in an appropriate way, in the official lists of Foreign Missions accredited to each Party.

Appendix II Treaty of Paris

  • Peace Treaty between Great Britain, France, the Ottoman Empire, Sardinia and Russia

  • March 30, 1856.100

Article I

From the day of the exchange of the Ratifications of the present Treaty there shall be Peace and Friendship between Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, His Majesty the Emperor of the French, His Majesty the King of Sardinia, His Imperial Majesty the Sultan, on the one part, and His Majesty the Emperor of All the Russias, on the other part; as well as between their heirs and successors, their respective dominions and subjects, in perpetuity.

Article II

Peace being happily re-established between their said Majesties, the Territories conquered or occupied by their armies during the War shall be reciprocally evacuated. Special arrangements shall regulate the mode of the Evacuation, which shall be as prompt as possible.

Article III

His Majesty the Emperor of All the Russias engages to restore to His Majesty the Sultan the Town and Citadel of Kars, as well as the other parts of the Ottoman Territory of which the Russian troops are in possession.

Article IV

Their Majesties the Queen of the United Kingdom of Great Britain and Ireland, the Emperor of the French, the King of Sardinia, and the Sultan, engage to restore to His (p.297) Majesty the Emperor of All the Russias, the Towns and Ports of Sebastopol, Balaklava, Kamiesch, Eupatoria, Kertch, Jenikale, Kinburn, as well as all other Territories occupied by the Allied Troops.

Article V

Their Majesties the Queen of the United Kingdom of Great Britain and Ireland, the Emperor of the French, the Emperor of All the Russias, the King of Sardinia, and the Sultan, grant a full and entire Amnesty to those of their subjects who may have been compromised by any participation whatsoever in the events of the War in favour of the cause of the enemy.

It is expressly understood that such Amnesty shall extend to the subjects of each of the Belligerent Parties who may have continued, during the War, to be employed in the service of one of the other Belligerents.

Article VI

Prisoners of War shall be immediately given up on either side.

Article VII

Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, His Majesty the Emperor of Austria, His Majesty the Emperor of the French, His Majesty the King of Prussia, His Majesty the Emperor of All the Russias, and His Majesty the King of Sardinia, declare the Sublime Porte admitted to participate in the advantages of the Public Law and System (Concert) of Europe. Their Majesties engage, each on his part, to respect the Independence and the Territorial Integrity of the Ottoman Empire; Guarantee in common the strict observance of that engagement; and will, in consequence, consider any act tending to its violation as a question of general interest.

Article VIII

If there should arise between the Sublime Porte and one or more of the other Signing Powers, any misunderstanding which might endanger the maintenance of their relations, the Sublime Porte, and each of such Powers, before having recourse to the use of force, shall afford the other Contracting Parties the opportunity of preventing such an extremity by means of their Mediation.

Article IX

His Imperial Majesty the Sultan having, in his constant solicitude for the welfare of his subjects, issued a Firman, which, while ameliorating their condition without distinction of (p.298) Religion or of Race, records his generous intentions towards the Christian population of his Empire, and wishing to give a further proof of his sentiments in that respect, has resolved to communicate to the Contracting Parties the said Firman, emanating spontaneously from his Sovereign will.

The Contracting Powers recognise the high value of this communication. It is clearly understood that it cannot, in any case, give to the said Powers the right to interfere, either collectively or separately, in the relations of His Majesty the Sultan with his subjects, nor in the Internal Administration of his Empire.

Article X

The Convention of 13th of July, 1841, which maintains the ancient rule of the Ottoman Empire relative to the Closing of the Straits of the Bosphorus and of Dardanelles, has been revised by common consent.

The Act concluded for that purpose, and in conformity with that principle, between the High Contracting Parties, is and remains annexed to the present Treaty, and shall have the same force and validity as if it formed an integral part thereof.

Article XI

The Black Sea is Neutralised; its Waters and its Ports, thrown to the Mercantile Marine of every Nation, are formally and in perpetuity interdicted to the Flag of War, either of the Powers possessing its Coasts, or of any other Power, with the exceptions mentioned in Articles XIV and XIX of the present Treaty.

Article XII

Free from any impediment, the Commerce in the Ports and Waters of the Black Sea shall be subject only to Regulations of Health, Customs, and Police, framed in a spirit favourable to the development of Commercial transactions.

In order to afford to the Commercial and Maritime interests of every Nation the security which is desired, Russia and the Sublime Porte will admit Consuls into their Ports situated upon the Coast of the Black Sea, in conformity with the principles of International Law.

Article XIII

The Black Sea being neutralised according to the terms of Article XI, the maintenance or establishment upon its Coast of Military-Maritime Arsenals becomes alike unnecessary and purposeless- in consequence, His Majesty the Emperor of All the Russias, and His Imperial Majesty the Sultan, engage not to establish or to maintain upon that Coast any Military-Maritime Arsenal.

(p.299) Article XIV

Their Majesties the Emperor of All the Russias and the Sultan having concluded a Convention for the purpose of settling the Force and the Number of Light Vessels, necessary for the service of their Coasts, which they reserve to themselves to maintain in the Black Sea, that Convention is annexed to the present Treaty, and shall have the same force and validity as if it formed an integral part thereof. It cannot be either annulled or modified without the assent of the Powers signing the present Treaty.

Article XV

The Act of the Congress of Vienna, having established the principles intended to regulate the Navigation of Rivers which separate or traverse different States, the Contracting Powers stipulate among themselves that those principles shall in future be equally applied to the Danube and its Mouths. They declare that its arrangement henceforth forms a part of the Public Law of Europe, and take it under their Guarantee.

The Navigation of the Danube cannot be subjected to any impediment or charge not expressly provided for by the Stipulations contained in the following Articles: in consequence, there shall not be levied any Toll founded solely upon the fact of the Navigation of the River, nor any Duty upon the Goods which may be on board of Vessels. The Regulations of Police and of Quarantine to be established for the safety of the States separated or traversed by that River, shall be so framed as to facilitate, as much as possible, the passage of Vessels. With the exception of such Regulations, no obstacle whatever shall be opposed to Free Navigation.

Article XVI

With a view to carry out the arrangements of the preceding Article, a Commission, in which Great Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey, shall each be represented by one delegate, shall be charged to designate and to cause to be executed the Works necessary below Isatcba, to clear the Mouths of the Danube, as well as the neighbouring parts of the Sea, from the sands and other impediments which obstruct them, in order to put that part of the River and the said parts of the Sea in the best possible state for Navigation.

In order to cover the Expenses of such Works, as well as of the establishments intended to secure and to facilitate the Navigation at the Mouths of the Danube, fixed Duties, of a suitable rate, settled by the Commission by a majority of votes, may be levied, on the express condition that, in this respect as in every other, the Flags of all Nations shall be treated on the footing of perfect equality.

Article XVII

A Commission shall be established, and shall be composed of delegates of Austria, Bavaria, the Sublime Porte, and Wurtemberg (one for each of those Powers), to whom shall be added (p.300) Commissioners from the Three Danubian Principalities, whose nomination Shall have been approved by the Porte. This Commission, which shall be permanent: 1. Shall prepare Regulations of Navigation and River Police; 2. Shall remove the impediments, of whatever nature they may be, which still prevent the application to the Danube of the Arrangements of the Treaty of Vienna- 3. Shall order and cause to be executed the necessary Works throughout the whole course of the River; and 4. Shall, after the dissolution of the European Commission, see to maintaining the Mouths of the Danube and the neighbouring parts of the Sea in a navigable state.

Article XVIII

It is understood that the European Commission shall have completed its task, and that the River Commission shall have finished the Works described in the preceding Article, under Nos. I and 2, within the period of two years. The signing Powers assembled in Conference having been informed of that fact, shall, after having placed it on record, pronounce the Dissolution of the European Commission, and from that time the permanent River Commission shall enjoy the same powers as those with which the European Commission shall have until then been invested.

Article XIX

In order to insure the execution of the Regulations which shall have been established by common agreement, in conformity with the principles above declared, each of the Contracting Powers shall have the right to station, at all times, Two Light Vessels at the Mouths of the Danube.

Article XX

In exchange for the Towns, Ports, and Territories enumerated in Article IV of the present Treaty, and in order more fully to secure the Freedom of the Navigation of the Danube, His Majesty the Emperor of All the Russias consents to the rectification of his Frontier in Bessarabia.

The new Frontier shall begin from the Black Sea, one kilometre to the east of the Lake Bourna Sola, shall run perpendicularly to the Ackerman Road, shall follow that road to the Val de Trajan, pass to the south of Bolgrad, ascend the course of the River Yalpuck to the Height of Saratsika, and terminate at Katamori on the Pruth. Above that point the old Frontier between the Two Empires shall not undergo any modification.

Delegates of the Contracting Powers shall fix, in its details, the Line of the new Frontier.

Article XXI

The Territory ceded by Russia shall be Annexed to the Principality of Moldavia, under the Suzerainty of the Sublime Porte.

The Inhabitants of that Territory shall enjoy the Rights and Privileges secured to the Principalities; and during the space of 3 years, they shall be permitted to transfer their domicile elsewhere, disposing freely of their Property.

(p.301) Article XXII

The Principalities of Wallachia and Moldavia shall continue to enjoy under the Suzerainty of the Porte, and under the Guarantee of the Contracting Powers, the Privileges and Immunities of which they are in possession. No exclusive Protection shall be exercised over them by any of the guaranteeing Powers.

There shall be no separate right of interference in their Internal Affairs.

Article XXIII

The Sublime Porte engages to preserve to the said Principalities an Independent and National Administration, as well as full liberty of Worship, of Legislation, of Commerce, and of Navigation.

The Laws and Statutes at present in force shall be revised. In order to establish a complete agreement in regard to such revision, a Special Commission, as to the composition of which the High Contracting Powers will come to an understanding among themselves, shall assemble, without delay, at Bucharest, together with a Commissioner of the Sublime Porte.

The business of this Commission shall be to investigate the present state of the Principalities, and to propose bases for their future organization.

Article XXIV

His Majesty the Sultan promises to convoke immediately in each of the two Provinces a Divan ad hoc, composed in such a manner as to represent most closely the interests of all classes of society. These Divans shall be called upon to express the wishes of the people in regard to the definitive organization of the Principalities.

An Instruction from the Congress shall regulate the relations between the Commission and these Divans.

Article XXV

Taking into consideration the opinion expressed by the two Divans, the Commission shall transmit, without delay, to the present seat of the Conferences, the result of its own labours.

The Final Agreement with the Suzerain Power shall be recorded in a Convention to be concluded at Paris between the High Contracting Parties; and a hatti-sché rif, in conformity with the stipulations of the Convention, shall constitute definitively the organization of those Provinces, placed thenceforward under the Collective Guarantee of all the signing Powers.

Article XXVI

It is agreed that there shall be in the Principalities a National Armed Force, organized with the view to maintain the security of the interior, and to ensure that of the Frontiers. No impediment shall be opposed to the extraordinary measures of defence which, by agreement with the Sublime Porte, they may be called upon to take in order to repel any external aggression.

(p.302) Article XXVII

If the Internal tranquillity of the Principalities should be menaced or compromised, the Sublime Porte shall come to an understanding with the other Contracting Powers in regard to the measures to be taken for maintaining or re-establishing legal order.

No armed Intervention can take place without previous agreement between those Powers.

Article XXVIII

The Principality of Servia shall continue to hold of the Sublime Porte, in conformity with the Imperial Hats which fix and determine its Rights and Immunities, placed henceforward under the Collective Guarantee of the Contracting Powers.

In consequence, the said Principality shall preserve its Independent and National Administration, as well as full Liberty of Worship, of Legislation, of Commerce, and of Navigation.

Article XXIX

The right of garrison of the Sublime Porte, as stipulated by anterior regulations, is maintained. No armed Intervention can take place in Servia without previous agreement between the High Contracting Powers.

Article XXX

His Majesty the Emperor of All the Russias and His Majesty the Sultan maintain in its Integrity the state of their possessions in Asia such as it legally existed before the rupture.

In order to prevent all local dispute the Line of Frontier shall be verified, and, if necessary, rectified, without any prejudice as regards Territory being sustained by either Party.

For this purpose a Mixed Commission, composed of two Russian Commissioners, two Ottoman Commissioners, one English Commissioner, and one French Commissioner, shall be sent to the spot immediately after the re-establishment of diplomatic relations between the Court of Russia and the Sublime Porte. Its labours shall be completed within the period of 8 months after the exchange of the Ratifications of the present Treaty.

Article XXXI

The Territories occupied during the War by the troops of their Majesties the Queen of the United Kingdom of Great Britain and Ireland, the Emperor of Austria, the Emperor of the French, and the King of Sardinia, according to the terms of the Conventions signed at Constantinople on the 12th of March, 1854, between Great Britain, France, and the Sublime Porte; on the 14th of June of the same year, between Austria and the Sublime Porte and on the 15th of March, 1855, between Sardinia and the Sublime Porte; shall be evacuated as soon as possible after the exchange of the Ratifications of the present Treaty. (p.303) The periods and the means of execution shall form the object of an arrangement between the Sublime Porte and the Powers whose troops have occupied its Territory.

Article XXXII

Until the Treaties or Conventions which existed before the War between the Belligerent Powers have been either renewed or replaced by new Acts, Commerce of importation or of exportation shall take place reciprocally on the footing of the regulations in force before the War; and in all other matters their subjects shall be respectively treated upon the footing of the Most Favoured Nation.

Article XXXIII

The Convention concluded this day between their Majesties the Queen of the United Kingdom of Great Britain and Ireland, the Emperor of the French, on the one part, and His Majesty the Emperor of All the Russias on the other part, respecting the Aland Islands, is and remains annexed to the present Treaty, and shall have the same force and validity as if it formed a part thereof

Article XXXIV

The present Treaty shall be ratified, and the Ratifications shall be exchanged at Paris in the space of 4 weeks, or sooner if possible.

In witness whereof the respective Plenipotentiaries have signed the same, and have affixed thereto the Seal of their Arms. Done at Paris, the 30th day of the month of March, in the year 1856.

Appendix III The Treaty of Berlin

  • Treaty Between Great Britain, Austria-Hungary, France, Germany, Italy, Russia and Turkey.

  • July 13, 1878.101

Article I

Bulgaria is constituted an autonomous and tributary Principality under the suzerainty of His Imperial Majesty the Sultan. It will have a Christian government and a national militia.

(p.304) Article XXIII

The Sublime Porte undertakes scrupulously to apply in the Island of Crete the Organic Law of 1868 with such modifications as may be considered equitable. Similar laws adapted to local requirements, excepting as regards the exemption from taxation granted to Crete, shall also be introduced into the other parts of Turkey in Europe for which no special organization has been provided by the present treaty. The Sublime Porte shall depute special commissions, in which the native element shall be largely represented, to settle the details of the new laws in each province. The schemes of organization resulting from these labors shall be submitted for examination to the Sublime Porte, which, before promulgating the Acts for putting them into force, shall consult the European Commission instituted for Easter Roumelia.

Article XXV

The provinces of Bosnia and Herzegovina shall be occupied and administered by Austria-Hungary. The government of Austria-Hungary, not desiring to undertake the administration of the Sanjak of Novi-Pazar [modern Kosovo Province], which extends between Serbia and Montenegro in a South-Easterly direction to the other side of Mitrovitza, the Ottoman administration will continue to exercise its functions there. Nevertheless, in order to assure the maintenance of the new political state of affairs, as well as freedom and security of communications, Austria-Hungary reserves the right of keeping garrisons and having military and commercial roads in the whole of this part of the ancient vilayet of Bosnia. To this end the governments of Austria-Hungary and Turkey reserve to themselves to come to an understanding on the details.

Article XXVI

The independence of Montenegro is recognized by the Sublime Porte and by all those of the High Contracting Parties who had not hitherto admitted it.

Article XXXIV

The High Contracting Parties recognize the independence of the Principality of Serbia, subject to the conditions set forth in the following Article.

Article XXXV

In Serbia the difference of religious creeds and confessions shall not be alleged against any person as a ground for exclusion or incapacity in matters relating to the enjoyment of civil or political rights, admission to public employments, functions, and honors, or the exercise of the various professions and industries, in any locality whatsoever. The freedom and outward exercise of all forms of worship shall be assured to all persons belonging to Serbia, as well as to foreigners, and no hindrance shall be offered either to the hierarchical organization of the different communions, or to their relations with their spiritual chiefs.

(p.305) Article XLIII

The High Contracting Parties recognize the independence of Romania, subject to the conditions set forth in the two following Articles.

Article XLIV

In Romania the difference of religious creeds and confessions shall not be alleged against any person as a ground for exclusion or incapacity in matters relating to the enjoyment of civil or political rights, admission to public employments, functions, and honors, or the exercise of the various professions and industries, in any locality whatsoever. The freedom and outward exercise of all forms of worship shall be assured to all persons belonging to Romania, as well as to foreigners, and no hindrance shall be offered either to the hierarchical organization of the different communions, or to their relations with their spiritual chiefs. The subjects and citizens of all the Powers, traders or others, shall be treated in Romania without distinction of creed, on a footing of perfect equality.

Article XLV

The Principality of Romania restores to His Majesty the Emperor of Russia that portion of the Bessarabian territory detached from Russia by the Treaty of Paris of 1856, bounded on the West by the mid-channel of the Pruth [River], and on the South by the mid-channel of the Kilia Branch and the Stary-Stamboul mouth [now the modern state of Moldova].

Article LVIII

The Sublime Porte cedes to the Russian Empire in Asia the territories of Ardahan, Kars, and Batum [modern Armenia and Georgia, with a bit of Northeastern Turkey], together with the latter port.

Article LIX

His Majesty the Emperor of Russia declares that it is his intention to constitute Batum a free port, essentially commercial.

Article LXII

The Sublime Porte having expressed the intention to maintain the principle of religious liberty, and give it the widest scope, the Contracting Parties take note of this spontaneous declaration. In no part of the Ottoman Empire shall difference of religion be alleged against any person as a ground for exclusion or incapacity in matters relating to the enjoyment of (p.306) civil or political rights, admission to public employments, functions, and honors, or the exercise of the various professions and industries, in any locality whatsoever. The freedom and outward exercise of all forms of worship shall be assured to all, and no hindrance shall be offered either to the hierarchical organization of the different communions, or to their relations with their spiritual chiefs.

Ecclesiastics, pilgrims, and monks of all nationalities traveling in Turkey in Europe, or in Turkey in Asia, shall enjoy the same rights, advantages, and privileges.

The right of official protection by the Diplomatic and Consular Agents of the Powers in Turkey is recognized both as regards the above-mentioned persons and their religious, charitable, and other establishments in the Holy Places and elsewhere. The rights possessed by France are expressly reserved, and it is well understood that no alterations can be made in the status quo in the Holy Places. The monks of Mount Athos, of whatever country they may be natives, shall be maintained in their former possessions and advantages, and shall enjoy, without any exception, complete equality of rights and prerogatives.

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Notes:

(1) In commemoration of the destruction of the Temple of Jerusalem, this is recited at Jewish weddings before a glass is broken.

(2) Marshal J. Berger, ‘Jerusalem’s Holy Sites in Israeli Law’, in Between Cultural Diversity and Common Heritage: Legal and Religious Perspectives on the Sacred Places in the Mediterranean, edited by Silvio Ferrari and Andrea Benzo (Burlington, Vt.: Ashgate Publishers, 2014), pp. 119–54, 133.

(3) See more in Silvio Ferrari, ‘The Holy See and Israel and the Conventions between States and the Church since the Vatican II Council’, Catholic University Law Review 47, no. 2 (Winter, 1998): p. 385.

(4) It would be an understatement to say that the relationship of the Catholic Church to the Jewish people is long, convoluted and problematic. After all, until the 1960s the Church taught the doctrine called ‘Supersession’ (or ‘Replacement’) which in brief terms claims that the ‘Church is the heir to all promises that God made to Abraham.’ (See Paul Charles Merkley, Christian Attitudes towards the State of Israel (Montreal: McGill University Press, 2001), p. 146. It was only in 1965, together with the Pope Paul VI Nostra Aetate proclamation, at Vatican II, that the Church relationship with non-Christian religions was revolutionized. See more in Nostra Aetate: Origins, Promulgation, Impact on Jewish–Catholic Relations, edited by Uri Bialer et al. (New Brunswick, N.J.: Transaction Publishers, 2007.)

(5) See Raymond Cohen, Saving the Holy Sepulchre: How Rival Christians Came Together to Rescue their Holiest Shrine (Oxford: Oxford University Press, 2008).

(6) See for instance Article 4 (1) in Appendix I.

(7) Following this lead, this chapter capitalizes Jerusalem’s Status Quo as to avoid possible confusion with any other status quo.

(8) See more in Enrico Molinaro, The Holy Places of Jerusalem in Middle East Peace Agreements: The Conflict between Global and State Identities (Sussex: Sussex Academic Press, 2009), p. 36.

(9) ‘Having defined the disputed places and investigated the conflicting claims, the firman determined that “all these places must be left in their present state.” … The 1852 firman represented a confirmation and clarification of the shared rights of the various communities in the Holy Places, demarcating which areas were under whose control and maintaining the time schedules to officiate in areas shared with more than one community.’ Molinaro, The Holy Places of Jerusalem in Middle East Peace Agreements: The Conflict between Global and State Identities, pp. 36–7.

(10) As Enrico Molinaro discusses, neither the repetitive use of the term nor its capitalization intended ‘to introduce any new regime or to create any norm’. Nor should the Status Quo be explained ‘in relation to the legal principles that such a regime would imply, nor does the interpreter have any hint as to their specific contents or scope derived from an analysis of the Fundamental Agreement’s provisions’. (Molinaro, The Holy Places of Jerusalem in Middle East Peace Agreements: The Conflict between Global and State Identities, p. 22.)

(11) See Appendix II and III.

(12) See for instance, Article 1 (2) and Article 2 (2) of the Fundamental Agreement, Appendix I.

(13) See more in Reut Yael Paz, ‘Religion, Secularism and International Law,’ in The Oxford Handbook of International Legal Theory, edited by Anne Orford and Florian Hofmann (Oxford: Oxford University Press, 2016).

(14) Émile Durkheim, Elementary Forms of Religious life (London: G Allen & Unwin, 1912), p. 314.

(15) As Martti Koskenniemi phrased it: ‘Modern international law was born as liberal empires turned to formal annexation. But the ideological base lay in its religious critique of the Spanish empire.’ Martti Koskenniemi, ‘Empire and International Law: The real Spanish Contribution’, The University of Toronto Law Journal 61, no. 1 (2011): pp. 1–36, 4.

(16) Christianity is a universal, inclusive and a ‘sending’ religion as the term missionarism itself indicates. (See more in David Marshall, Communicating the Word: Revelation, Translation, and Interpretation in Christianity and Islam (Georgetown, D.C.: Georgetown University Press, 2011), p. 42.

(17) See more in Reut Yael Paz, A Gateway Between a Distant God and a Cruel World: The Contribution of Jewish German-Speaking Scholars to International Law (Leiden: Brill Martinus Nijhoff Publishers, 2012).

(18) For more on the process of secularization see Mark Somos, Secularisation and the Leiden Circle (Leiden: Brill, 2011).

(19) For how this works from the School of Salamanca onwards see Paz, ‘Religion, Secularism and International Law’.

(20) The construction of the Other here relies on the Freudian and Lacanian projection thesis for the relationship between the Western, European, masculine, Christian, and white to ‘their Others’. (See, for instance, Franz Fanon, Black Skin, White Masks (New York: Grove Press 1967.) This suggests that the former people, at least since the age of Enlightenment, projected everything their culture considered unacceptable onto the latter. Once the intolerable cultural needs, desires and urges were disposed of, the superiority of the ‘civilized, Western, European, white and Christian men’ could be imagined to be sustained. (See more in Paz, A Gateway Between a Distant God and a Cruel World).

(21) Edward W. Said, Orientalism (London: Penguin Books, 2003).

(22) See for instance Nathaniel Berman, ‘Legalizing Jerusalem or, of Law, Fantasy, and Faith’, Catholic University Law Review 45 (1996): pp. 823–35; Henry Cattan, ‘The Status of Jerusalem under International Law and United Nations Resolutions’, Journal of Palestine Studies 10, no. 3 (1981): pp. 3–15; Chad F. Emmett, ‘The Capital Cities of Jerusalem’, Geographical Review 86, no. 2 (1996): pp. 233–58.

(23) There is plenty of research on Jerusalem’s Status Quo. To mention but a few, see Cohen, Saving the Holy Sepulchre: How Rival Christians Came Together to Rescue their Holiest Shrine; Chad F. Emmett, ‘The Status Quo Solution for Jerusalem’, Journal of Palestine Studies 26, no. 2 (Winter, 1997): pp. 16–28; S. Shepard Jones, ‘The Status of Jerusalem: Some National and International Aspects’, Law and Contemporary Problems 33, no. 1, The Middle East Crisis: Test of International Law (Winter, 1968): pp. 169–82; and Enrico Molinaro, The Holy Places of Jerusalem in Middle East Peace Agreements: The Conflict between Global and State Identities (Sussex: Sussex Academic Press, 2009).

(24) See for instance Meron Benvenisti, City of Stone: The Hidden History of Jerusalem, (California: University of California Press, 1996).

(25) As discussed in more detail below, here I follow Martti Koskenniemi’s argument, which states that the establishment of modern international law as a profession occurred after the creation of international legal associations and institutions during the last third of the nineteenth century (For the whole argument see Martti Koskenniemi, The Gentle Civilizer of Nations (Cambridge: Cambridge University Press, 2001)).

(26) At least since Saladin’s time, the keys to the Church of the Holy Sepulchre have been kept by a Muslim family, the Nusseibehs, in order to avoid excessive brawling over but also in the church. While such Muslim custodianship was and still is essential to contain Christianities’ struggles over the ownership of holiness in the Old City, these struggles by the different strands of Christianity both go beyond and deeper into the church per se. For instance, the Greeks argued with the Armenians over the division of the Virgin’s Tomb; the Armenians struggled with the Syriac Jacobites over the cemetery of Mount Zion; the Orthodox fought with the Catholic over the ownership of the St Nicodemus Chapel in the church; while the Armenians competed with the Orthodox over the ownership of the churches east of the main entrance staircases; and the Copts disputed with the Ethiopians over ownership of the rooftop monasteries (Simon Sebag Montefiore, Jerusalem (London: Phoenix, 2012), pp. 315, 509).

(27) Note that in Figure 12.1 Jerusalem stands as an abridged version of the Holy Land’s holy places.

(28) According to Eric Hobsbawm, Bismarck ‘remained undisputed world champion at the game of multilateral diplomatic chess for almost twenty years after 1871, [when he] devoted himself exclusively, and successfully, to maintaining peace between the powers’. (Eric Hobsbawm, The Age of Empire: 1875–1914 (London: Weidenfeld & Nicolson, 1987)), p. 312.

(29) It is of course impossible (and unnecessary) to define Europe here. It suffices to keep in mind the somewhat vague conceptualization of what it was understood to be Europe at the end of the nineteenth century: Europe is the physical and spiritual space that can be traced back to Greece and Rome. It was consolidated at Westphalia and then extended to other spheres of influence. In international legal terms prevalent in the nineteenth century, Europe consisted of a few Christian nations mainly in Europe and in America that made up a family of advanced nations with particular habits and ideas (See further Koskenniemi, The Gentle Civilizer of Nations, p. 49).

(30) As Edward Keene phrases it: ‘The conservatives were quite happy with the notion that international society should take an interest in how domestic societies and political systems were organized; they had an illiberal view of what the outcome of that process should be.’ (Edward Keene, International Political Thought: An Historical Introduction (Cambridge: Polity Press, 2005), p. 172).

(31) Adam Watson, The Evolution of International Society (New York: Routledge, 1992), p. 245.

(32) Watson, The Evolution of International Society, p. 173. Importantly, alongside the Concert securing the balance of power—or rather suppressing revolutionary and nationalist movements—was the Holy Alliance or Dreikaiserbund of 1873 in which Otto von Bismarck attempted to revive the traditional cooperation between Russia, Austria, and Prussia from 1815–54. And the Dual Alliance (1879) originally between Austria and Germany that intended to keep Austria from further provocation of Russia, was extended later to include Italy in the Triple Alliance (1882) that included Italy. (See more in Stephen J. Lee, Imperial Germany 1871–1918 (New York: Routledge, 2005), pp. 37–8). For more on the European Concert, see Martin Schultz, Normen und Praxis: Das Europäische Konzert der Großmächte als Sicherheit, 1815–1860 (Munich: Oldenburg Wissenschaftsverlag, 2009).)

(33) The almost obsessive need to cement the power relationship between the Orient and Occident was made more obvious with Russia’s systematic expansion of its Trans-Caspian Railroad, which encompassed Samarkand and Bokhara in 1868; the focus of Britain’s foreign policy on the region following the Treaty of Chanak (1806); and Napoleon’s hope of intercepting Britain’s Oriental Empire in Egypt at the beginning of the nineteenth century. Said, Orientalism, pp. 17, 77–9.

(34) Ibid., p. 191.

(35) According to Ibn Warraq, it is problematic to accept Said’s claim as it takes away any agency whatsoever from Europe’s oriental Others. For more on the inherent complexities in assuming that the ‘Orient East’ passively accepted the heavily biased colonialist attitudes, racism, and political exploitation for over two millennia see Ibn Warraq, Defending the West: A Critique of Edward Said’s Orientalism (Amherst, N.Y.: Prometheus Books, 2007).

(36) Elsewhere Said adds that ‘Orientalism is not an airy European fantasy about the Orient, but a created body of theory and practice in which, for many generations there has been a considerable material investment.’ Said, Orientalism, pp. 1, 3, 6.

(37) Jean Allain, ‘Orientalism and International Law: The Middle East as the Underclass of the International Legal Order’, Leiden Journal of International Law 17 (2004): pp. 391–404.

(38) See more in Koskenniemi, The Gentle Civilizer of Nations, pp. 113–24.

(39) See Said’s discussion of this in Orientalism, pp. 217–19.

(40) Be it through Edward Said’s methodological approach or the ‘New Historiography’ movement in Israel (see for instance Benny Morris, ‘The New Historiography: Israel and its Past’, in 1948 and After: Israel and the Palestinians (Oxford: Clarendon Press, 1994). But most importantly the contemporary post-colonial international legal research, also known as Third World Approaches to International Law (TWAIL). Apart from the previously mentioned article by Jean Allain, ‘Orientalism and International Law’, see for instance Karin Mickleson, ‘Rhetoric and Rage: Third World Voices in International Legal Discourse’, Wisconsin International Law Journal 16 (1998): pp. 361–2; Nathaniel Berman, ‘The Grotius Lecture Series’, American University International Law Review 14 (1999): pp. 1516–69; and Antony Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in the Nineteenth-Century International Law’, Harvard International Law Journal 40 (1999): pp. 1–80.

(42) Ibid., p.122.

(43) See more in Candan Badem, ‘The’ Ottoman Crimean War: (1853–1856) (Leiden: Kroninklijke Brill, 2010), p. 3.

(44) Ibid., p. 3.

(45) John Henry Newman’s book The Turks in their Relation to Europe (London: 1853) is mentioned by Said, Orientalism, on p. 153.

(46) See more in George Herring, What was the Oxford Movement? (London: Continuum, 2002).

(47) The general reference here is to the Church of the Nativity and several other significant early Christian sites in Jerusalem and its vicinity. More specifically, however, the matter revolved around the pseudo-trivial question of whether ‘Latin or Greek clergy would possess the key to the Great Church of Bethlehem and which of them would have priority of holding services in the Church of the Holy Sepulchre.’ Candan Badem, ‘The’ Ottoman Crimean War: (1853–1856) (2010), p. 64.

(48) Islam’s universalism/missionarism made these interactions more complex because it resembles that of Christianity’s. The existence of its diverging Da’wa movements proves that its missionary agenda exists although not in the institutionally organized form in which missionarism is present in most Western Christianities. In the words of Bassam Tibi, ‘The Da’wa call to Islam, like Christian evangelism, is supposed to be peaceful. But if the peoples to whom Muslims bring the message of Islam do not submit to it voluntarily (“Islam” means “submission to God”), Muslims are entitled to use force in defending the Da’wa against the resistance of the unbelievers.’ Bassam Tibi, Fundamentalism: Political Islam and the New World Order (California: University of California Press, 1998), p. 55. See more also in Travellers in Faith: Studies of Tagblighi Jama’at as a Transnational Islamic Movement for Faith Renewal, edited by Muhammad Khalid Masud (Leiden: Brill, 2000).

(50) Significantly, ‘the Crimean War was the only occasion between 1815 and 1914 when Britain sent a military expedition to Europe to fight another great power …’ See more in The Cambridge Historical Encyclopedia of Great Britain and Ireland, edited by Christopher Haigh (Cambridge: Cambridge University Press, 2000), p. 266.

(51) Malcolm D. Evans, Religious Liberty and International Law in Europe (Cambridge: Cambridge University Press, 1997), p. 68.

(52) Indeed ‘it was during this time that the image of the Ottoman Empire gradually descended from being perceived as “the terror of the world” to being “the sick man of Europe” ’. (Aslı Çırakman, From the ‘Terror of the World’ to the ‘Sick Man of Europe’: European Images of Ottoman Empire from the 16th century to the 19th (New York: Peter Lang Publishing 2005), p. 1).

(53) For the full Article VII reads as follows: see the full Treaty of Paris in Appendix II.

(54) Heinz Duchhardt, ‘From Westphalia to the Revolutionary Era’, in Peace Treaties and International Law in European History: From the Late Middle Ages to World War One, edited by Randall Lesaffer (Cambridge: Cambridge University Press, 2004), p. 50.

(56) Note that the only reference that is made to any difference within Christianity is the plural form that is used: ‘Christian populations’.

(57) For more on Russia’s religious history in relationship to Europe and/or Asia, see Ernst Benz, The Eastern Orthodox Church: Its Thought and Life (USA: Rowohld Taschenbuch Verlag, 2009).

(58) See A. J. P. Taylor, The Struggle for Mastery in Europe 1914–1918 (Oxford: Oxford University Press, 1954), p. 253.

(59) See exact quote in Edgar Feuchtwanger, Bismarck: A Political History (New York: Routledge, 2014), p. 202.

(60) The so-called ‘big powers’ were convinced of his sincerity, partly due to his famous statement—that the Balkans ‘were not worth the healthy bones of a single Pomeranian musketeer’. (Edgar Feuchtwanger, Bismarck: A Political History (2014), p.198).

(61) See more in Eric D. Weitz, ‘From the Vienna to the Paris System: International Politics and the Entangled Histories of Human Rights, Forced Deportations and Civilizing Missions’, The American Historical Review 113, no. 5 (December 2008): pp. 1313–43, 1319.

(62) In fact, it was the fears of the ‘war in sight’ instigated by ‘the oriental crisis of 1875–1878 that eventually provided a fuse for the future explosion’ of the first Great War in 1914 (See more in Imaneul Geiss, German Foreign Policy 1871–1914 (London: Routledge Press, 1976), p. 32).

(63) Emphasis added. See the Treaty of Berlin (1878) in Appendix III.

(64) Carole Finke, Defending the Rights of Others: The Great Powers, the Jews, and International Minority Protection 1878–1938 (Cambridge: Cambridge University Press, 2004), p. 28.

(65) William Ewart Gladstone, The Berlin Treaty and the Anglo-Turkish Convention (1878, revised version of speech in the House of Commons, 30 July 1878. Quoted in Evans, Religious Liberty and International Law in Europe, p. 73).

(66) For more on the big powers lacking interest to sustain an enforceable agreement see Finke, Defending the Rights of Others, p. 8.

(67) In general the intention of the Tanzimat (which is often divided into two parts from 1839–56 and 1856–76) was to bring the Ottoman Empire form of government closer to European-style structures. It is often compared with the French Revolution mainly because of the era but also because it too attempted to eliminate the landholding class and the corrupt pashas. However, the Ottoman changes came from the top and were encouraged and closely monitored by British, who viewed them very positively, given the clear economic stakes involved. Just these stakes and also more general geographic dominance by the United Kingdom was not seen so positively by the Russians and Austrians (See more in details in The Ottoman Empire and the World-Economy, edited by Huri Islamogu-Inan (Cambridge: Cambridge University Press, 2004).

(68) Ussama Samir Makdisi, The Culture of Sectarianism: Community, History, and Violence in Nineteenth-Century Ottoman Lebanon (Berkeley: University of California Press, 2000), p. 3.

(69) Ibid., p. 3 and 57.

(70) Ibid., 57.

(71) Ibid., p. 60.

(72) Ibid., 57.

(73) Susanne Wasum-Rainer, ‘Status Quo’, in Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2013). Available at http://opil.ouplaw.com .

(74) See more in Hans J. Morgenthau, Politics among Nation: The Struggle for Power and Peace (New York: Alfred A. Knopf, 1960).

(76) The reference here is to what Martti Koskenniemi calls international law’s insoluble ‘ascending/descending’ liberal dyad structured between theory and practice, concreteness and normativity, law and politics, and so on. (See more in Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005), pp. 46–7.)

(79) Change was permitted only if the communities involved reached an amicable agreement. Ibid., p. 9.

(80) Inter alia, the most blatant loophole in the Status Quo regime is the absence of a satisfactory way to manage the necessary repairs/renovations of the holy places. Ibid., p. 11.

(81) In 1909 Father Ferdinando Diotallevi wrote in his memorandum that ‘since the sixteenth century there had been ‘almost continual war there’ and only the firm maintenance of the Status Quo had kept the peace’. (Ferdinando Diotallevi quoted in Cohen, Saving the Holy Sepulchre, p. 16.)

(82) For more on legal borrowing see for instance Alan Watson, ‘Legal Transplants and European Private Law’, Electronic Journal of Comparative Law 4.4 (2000): http://www.ejcl.org/44/art44-2.html .

(83) See more in Whither Jerusalem?: Proposals and Positions Concerning the Future of Jerusalem, edited by Moshe Hirsch, Deborah Housen-Couriel, and Ruth Lapidot (The Hague: Martinus Nijhoff, 1995), p. 157.

(84) Winnifred Fallers Sullivan, The Impossibility of Religious Freedom (Princeton: Princeton University Press, 2005), pp. 1–2.

(85) Orhan Pamuk, The White Castle, translated by Victoria Holbrook (Manchester: Carcanet Press, 1990).

(86) Significantly Nathaniel Berman’s article was written in 1996, shortly after the assassination of Yitzhak Rabin, which arguably shattered all previous hopes for a peaceful settlement of Jerusalem, but he correctly points out that it was Resolution 181 (II), 1947, that ‘followed in a long tradition and has remained a model for international legal plans for nationalist conflicts. One can draw a direct chain of influence and evolution from the 1878 Treaty of Berlin for the settlements of nationalist conflicts in the Balkans, to the 1923 Geneva Convention for Upper Silesia for the settlement of a German-Polish territorial dispute, to the 1947 Palestine Partition Resolution, to the Dayton Agreement on Bosnia.’ (See more in Nathaniel Berman, ‘Legalizing Jerusalem or, of Law, Fantasy, and Faith’, Catholic University Law Review 45 (1996): pp. 825–6.)

(87) Nathaniel Berman’s argument explicates that this type of internationalism, like the others, attempts to ‘participate in two other characteristic international fantasies: the universality and rationality of international authority … (These) ‘may take many forms; the ‘universality’ of any particular form, its claim to stand above the partisan fray, must be justified in substantive terms’. (Nathaniel Berman, ‘Legalizing Jerusalem or, of Law, Fantasy, and Faith’, p. 826.)

(88) See for instance Lisa Palmieri-Billig, ‘Vatican upset at non-finalized agreement with Israel’, The Jerusalem Post, 12 December 2007. Available at http://www.jpost.com/Israel/Vatican-upset-at-non-finalized-agreement-with-Israel .

(90) Montefiore, Jerusalem: The Biography, p. xxvi.

(91) Ecclesiastes 1:9. This is very similar to Romans 4:18, which refers to Abraham as he ‘Who against hope believed in hope, that he might become the father of many nations, according to was spoken, So shall your descendants be.’

(92) At the heart of monotheism stands the believer who worships a single God. The monotheistic believer acquires much freedom but also responsibilities from the notion of a ‘detached deity’ that watches over the cosmos. (See more in William Scott Green, ‘Approaching Distinctiveness’, in Monotheism & Ethics: Historical and Contemporary Intersections Among Judaism, Christianity and Islam, edited by Tzvi Langermann (Leiden: Brill, 2011), pp. 25–45, 40.)

(93) Sigmund Freud, Civilization, Society and Religion (London: Penguin, 1991), p. 131.

(94) Freud’s ‘softer’ approach that eventually turns ambivalent develops further in the hands of Georg Simmel, Emile Durkheim, Claude Levi-Straus, Pierre Bourdieu, and others who have continued this line of thought to explain why ‘violent confrontations usually take place in close circles, that is, within the limits of the tribe, between neighbours, friends or relatives—in short, between people who share many social and cultural features’. (See more in Anton Blok, ‘The Narcissism of Minor Differences’, European Journal of Social Theory 1, no. 1 (1998): pp. 33–56, 37.)

(95) Pierre Bourdieu, Distinction: A Social Critique of the Judgment of Taste (Harvard: Harvard University Press, 1984), p. 479.

(96) See more on this in Reuven Firestone, Who are the Real Chosen People? The Meaning of Chosenness in Judaism, Christianity and Islam (Woodstock, Vt.: SkyLight Publishing, 2008).

(97) Indeed the presence of God’s Oneness—even if only in the form of a universal ‘metaphysical fixed idea’—is traceable in both Orientalism and international law (For more on the universal ‘metaphysical fixed idea’ as the core of both monotheism and international law see Reut Yael Paz, A Gateway between a Distant God and a Cruel World: The Contribution of Jewish German-Speaking Scholars to International Law (2012), p. 24.)

(98) Leonard Cohen, ‘Hallelujah’, Originally released in his album Various Positions, 1984. Text available at http://www.songtexte.com/songtext/leonard-cohen/hallelujah-7bdb72c0.html .

(99) See the ‘Fundamental Agreement’, A.A.S., vol. LXXXVI (1994), n. 9, pp. 716–28. Also available at http://www.vatican.va/roman_curia/secretariat_state/archivio/documents/rc_seg-st_19931230_santa-sede-israele_en.html.

(100) See Treaty of Paris, The Crimean Crisis, http://www.amitm.com/thecon/lesson5.html.

(101) See Modern History Sourcebook: The Treaty of Berlin, 1878 Excerpts on the Balkans, Fordham University: The Jesuit University New York, available at http://www.fordham.edu/halsall/mod/1878berlin.asp.