The Status of Jerusalem under International Law

Executive summary

1. The City's deep historical and religious significance should not be allowed to colour the issue of the current status of the City in international law. From the legal point of view the relevant legal period commences immediately prior to the League of Nations Mandate (paragraph 3).
   
   
2. The UN Partition Resolution (General Assembly Resolution 181) proposed that Jerusalem be established as a corpus separatum under an international regime to be administered by the United Nations (paragraph 6). Despite the outbreak of hostilities in 1948-49 the United Nations made several attempts to establish the international regime before giving up in 1951. But the proposal remains "on the table" in the sense that it remains one options in future negotiations on the status of the City (paragraph 7).
   
   
3. Israel's measures to integrate West Jerusalem into Israel and the measures taken by Israel, following the 1967 conflict, to assert sovereignty over the whole City have been repeatedly condemned by the United Nations and are of no legal effect (paragraph 8).
   
   
4. Sovereignty over the former mandated territory of Palestine was not transferred to the Mandatory Power during the Mandate but remained in abeyance. Sovereignty over that part of Palestine that became the State of Israel, with the exception of West Jerusalem, passed to Israel. Sovereignty over the remaining mandated territory of Palestine remains in abeyance to be exercised by the Palestinian people once they have achieved self-determination (paragraphs 9-10).
   
   
5. Israel's occupation of West Jerusalem since 1948 has not been recognised de jure, although most states recognise Israel's de facto authority over West Jerusalem. The 1949 Israel - Jordan General Armistice Agreement endorsed the de facto division of the City but did not affect the legal status of the City (paragraph 11).
   
   
6. Israel is in belligerent occupation of East Jerusalem. Under international law belligerent occupation cannot confer title. Furthermore the principle of inadmissibility of acquisition of title through force applies and East Jerusalem is included among the territories occupied in the 1967 conflict from which Israel must withdraw in accordance with Security council Resolution 242 (paragraph 12).
   
   
7. It is accepted by the international community that Jerusalem does have a separate legal status from Israel and the rest of the Occupied Territories. The precise nature of that status remains to be settled in the context of a final peace settlement, or failing that, by the United Nations. In the meantime sovereignty over the City remains in abeyance (paragraph 14).
   
   
8. Palestine has a valid claim to sovereignty over the City based on the fact that under the Ottomans and during the Mandate Jerusalem was an integral part of the territory of Palestine and was its administrative capital. Until Jewish immigration altered the demographic structure of the City, the majority of its inhabitants were of Arab origin. Although sovereignty is in abeyance, it will be revived and vest in the Palestinian State once that state achieves recognition as a sovereign state (paragraph 17).
   
   
9. The Israeli claim to sovereignty over Jerusalem has no substance. It has no basis in Resolution 181 since the resolution never envisaged that Jerusalem would form part of the proposed Jewish State, but a corpus separatum subject to an international regime. Nor can the Israeli claim that she acted in self-defence in 1948 and 1967 form the basis for a claim to title (paragraphs 19-20).
   
   
10. Although sovereignty over the City is in abeyance, pending agreement on the legal regime that will govern the City, there is currently a difference between the status of West and East Jerusalem. In the case of West Jerusalem, Israel is recognised as having de facto administration of the City. In the case of East Jerusalem, Israel is a belligerent occupier and must withdraw from that part of the City in accordance with Security Council Resolution 242. Although Israel's title to West Jerusalem is not sound, her de facto administration of West Jerusalem for over 50 years could form the basis for an eventual consolidation of title. Provided recognition or acquiescence remains at the de facto level and pending agreement on the future status of the City, Israel will not be in a position to consolidate her title (paragraph 21).
    
    
11. A legal regime dating from the time of the Ottomans, known as the "Status Quo" governs the Holy Places located in the Old City. Successive occupiers have undertaken to uphold the regime and it can be strongly argued that the regime has acquired the status of an international legal obligation binding on existing and future administrators of that part of the City (paragraphs 23 and 24).
    
    
12. The Interim Agreement did not affect the legal status of the City (paragraph 25).
    
    

Introduction

1. This paper deals with the status of Jerusalem under international law. Its aim is to provide the Palestinian negotiators with legal argumentation in support of the Palestinian position and to enable them to rebut Israeli claims.
   
   
2. Jerusalem (Al-Quds in Arabic) has a deep religious significance for Judaism, Christianity and Islam. One of the oldest cities in the world, Jerusalem has been at the crossroads of cultures and civilisations throughout history. Since antiquity, different peoples and groups have fought innumerable battles for control over it. Since the nineteenth century, the city has been the object of conflicting claims by Jews and Palestinian Arabs; those claims have acquired a political and territorial dimension in addition to the religious one, since both peoples claim that the city embodies their national identity and right to self-determination.
   
   
3. However it is important that the city's religious and historical significance should not be allowed to colour the legal arguments as to the status of the city in international law. These factors are not strictly relevant when considering the current legal status of the city or the strength (or weakness) of the respective positions of Israel or Palestine. From the legal point of view the historical period starts with the period immediately preceding League of Nations Mandate.
   
   

History

4. For four hundred years until the First World War, Palestine was a part of the Ottoman Empire. Following the defeat of that empire Palestine was placed in 1922 under a League of Nations Mandate with the United Kingdom as mandatory power. Jerusalem during the period of the Mandate was an integral part of the territory of Palestine and was the seat of administration of the territory. The Mandate gave effect to the Balfour Declaration of 1917 that had as its principal object the establishment in Palestine of a national home for the Jewish people.
   
   The Mandate did not contain any specific provisions relating to Jerusalem, although Articles 13 and 14 of the Mandate did contain provisions on the Holy Places. Under Article 13 the mandatory power assumed full responsibility for the Holy Places, including preserving "existing rights", "securing free access" and "free exercise of worship", except with regard to the management of purely Muslim sacred shrines, the immunity of which was guaranteed by the Mandate. Article 14 of the mandate provided for the establishment of a special commission "to study, define and determine the rights and claims in connection with the Holy Places and the rights and claims relating to the different religious communities in Palestine".
   
   In view of the difficulties in establishing representation by all religious communities, the commission was never established and responsibility for the Holy Places remained with the mandatory power that continued the Ottoman Status Quo governing relations among the various communities.
   
   
5. The increase in Jewish immigration to Palestine caused growing tensions between the two communities and Jerusalem became a flashpoint of conflict (in 1929 there was a serious outbreak of violence over access to the Wailing Wall). The security situation continued to deteriorate. After the Palestinian rising in 1936 that began in protest against increased Jewish immigration, the mandatory Power constituted the Palestinian Royal Commission. The Commission concluded that the Mandate was unworkable and recommended that it be terminated. It also proposed the partition of Palestine into an Arab State and a Jewish State. The Commission held the Holy Places to be "a sacred trust of civilization" and proposed that a Jerusalem-Bethlehem enclave encompassing all the Holy Places, with a corridor to the sea terminating at Jaffa, remain under British trusteeship under a new League of Nations Mandate. This first plan for partition was superseded by political and military events. After the Second World War the United Kingdom declared that it was unable to resolve the problem in Palestine and brought the problem to the United Nations.
   
   
6. When the matter came before the United Nations in 1947 the General Assembly appointed a Special Committee on Palestine. The Committee unanimously recommended that the sacred character of the Holy Places be guaranteed and that access to the Holy Places be ensured "in accordance with existing rights". The Committee submitted two alternative plans for Palestine. The minority plan envisioned the establishment of a unified federal state in Palestine with Jerusalem as its capital with separate municipalities for the Jewish and Arab sectors. It also recommended the creation of a permanent international regime for the protection and supervision of the Holy Places in Jerusalem and elsewhere. The majority plan recommended the partition of Palestine into an Arab State and a Jewish State, and the territorial internationalisation of the Jerusalem area as an enclave in the Arab State. It was the latter plan that was approved by the General Assembly in Resolution 181. The Resolution terminated the Mandate. It proposed the establishment of Arab and Jewish states in the territory of Palestine and delimited the boundaries of the two states. Jerusalem was not included within the boundaries of the two states. Instead a special regime was proposed for Jerusalem. The Resolution provided:
   
   "The City of Jerusalem shall be established as a corpus separatum under a special international regime and shall be administered by the United Nations. The Trusteeship Council shall be designated to discharge the responsibilities of the Administering Authority on behalf of the United Nations".
   
   The boundaries of the city were defined as including "the present municipality of Jerusalem plus the surrounding villages and towns, the most eastern of which shall be Abu Dis; the most southern, Bethlehem; the most western, Ein Karim (including also the built-up area of Motsa); and the most northern Shu'fat". The Assembly requested the Council to elaborate a statute for the city providing for the appointment of a Governor and administrative staff, a Legislature, an independent judiciary, citizenship, and a regime governing the Holy Places and religious buildings and sites.
   
   As is well known the Partition Plan and the international regime for Jerusalem never materialised. Although the Jewish Agency accepted the Partition Plan, the Arabs did not accept it and hostilities broke out in 1948-49. Israel occupied West Jerusalem in the hostilities and in 1950 Jordan occupied East Jerusalem. The Israel-Jordan General Armistice Agreement of 3 April 1949 effectively formalised the de facto division of the city.
   
   
7. Despite the hostilities, the United Nations did not give up the objective of internationalisation of the Jerusalem area. In April 1948 the Trusteeship Council prepared a draft statute for the planned separate international entity. The General Assembly in Resolution 194 established a three-member Conciliation Commission for Palestine. The Commission resolved inter alia that "the Jerusalem area, including the present municipality of Jerusalem plus the surrounding villages and towns...should be accorded special and separate treatment from the rest of Palestine and should be placed under effective United Nations control". The General Assembly instructed the Commission to come up with detailed proposals for a permanent international regime for the Jerusalem area and recommendations concerning the Holy Places. In its periodic reports to the General Assembly, the Commission reported that the Arab delegations were in general prepared to accept the principle of an international regime for Jerusalem, subject to United Nations guarantees regarding its stability and permanence. Israel was unable to accept this, although it accepted without reservation an international regime for, or international control of, the Holy Places. Nevertheless in April 1950, the Council adopted a detailed Statute for the City of Jerusalem based on the provisions contained in Resolution 181. Neither side indicated that they were prepared to accept the proposed Statute. Following a final effort to mediate between the parties in 1951 the Commission concluded that the parties' unwillingness to implement the relevant resolutions and the changes that had taken place on the ground made it impossible to proceed towards a settlement. Nevertheless, the proposal remains "on the table", in the sense that the proposal, or something like it, remains an option for the negotiations on the future status of the City.
   
   
8. In the meantime Israel took a number of measures designed to integrate West Jerusalem into Israel. In September 1948 the Supreme Court was established in Jerusalem and in February 1949 the Knesset met in the city. This was followed by the establishment of a number of Ministries and public services in the City. In 1950 Jerusalem was proclaimed as the capital of Israel. East Jerusalem was occupied by Israel in the 1967 conflict and Israel has adopted a number of measures to unite the two parts of the city, including the enactment of a law in 1967 applying Israeli civilian law to East Jerusalem. In 1980 Israel enacted a 'basic law', which while not formally annexing East Jerusalem, in practice amounted to annexation by declaring the united city to be the capital of Israel and the seat of the major institutions of state. This action was firmly condemned by the Security Council and General Assembly. The Security Council in Resolution 478 censured in the strongest terms the enactment of the Israeli legislation and affirmed that it "constitutes a violation of international law and does not affect the continued application of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, in the Palestinian and other Arab territories occupied since 1967, including Jerusalem". The Council decided "not to recognise the 'basic law' and such other actions by Israel that, as a result of this law, seek to alter the character and status of Jerusalem", and called upon all Member States to accept its decision and upon Member States that had established diplomatic missions at Jerusalem to withdraw them. This resolution, subsequently reaffirmed with similar wording, continues to embody the position of the United Nations and of most Governments on the status of Jerusalem.
   
   
9. Consideration of the legal status of Jerusalem cannot be divorced from consideration of the status of Palestine as a whole. Prior to the Mandate sovereignty over Palestine, including Jerusalem, vested in the Ottomans. The Mandate did not transfer sovereignty to the Mandatory Power, nor was sovereignty transferred to the League of Nations. During the time of the Mandate sovereignty was in effect in abeyance. That situation remained until the establishment of the State of Israel and her recognition as a state by the international community and her admission to the United Nations in 1949. Although recognition of Israel implied recognition of Israeli sovereignty over some area of territory in the former mandated territory of Palestine, since possession of territory is one of the criteria for statehood, it did not imply recognition of Israeli sovereignty over all the territory claimed by her. In particular it did not imply recognition of the 1949 Armistice boundary lines or sovereignty over West Jerusalem. With the passage of time and acquiescence on the part of the international community, it can now be said that Israel's title to the territories occupied by her in the 1948-49 conflict, with the exception of West Jerusalem, has consolidated. Accordingly, sovereignty over that part of the former mandated territory of Palestine occupied by Israel in1948-49, with the exception of West Jerusalem, has passed to the State of Israel. This is subject to possible minor adjustments to the 1949 boundary on a reciprocal basis as envisaged in Security Council Resolution 242. By its recognition of Israel in 1993, the PLO also implicitly accepted Israeli sovereignty over these areas. As regards the remainder of the former mandated territory of Palestine, namely, the whole of Jerusalem, the West Bank and Gaza, sovereignty remains in abeyance, since these areas have not been recognised as falling under Israeli sovereignty.
   
   
10. The fact that sovereignty is in abeyance over the remainder of the former mandated territory of Palestine does not of course mean that there is no one entitled to that sovereignty. Since Palestine's provisional independence was recognised in the League of Nations Mandate and the right of self-determination of the Palestinian people has been recognised, the "unit of self-determination" comprises that area of territory. Sovereignty therefore vests in the Palestinian people to be exercised when they achieve their independence. In the Western Sahara case Judge McNair in his separate opinion said: "Sovereignty over a mandated territory is in abeyance; if and when the inhabitants of the Territory obtain recognition as an independent state...sovereignty will revive and rest in the new state".
    
    
11. With regard to Jerusalem, Israel's occupation of West Jerusalem in 1948 has not been recognised de jure. The reason for this is that to do so would be inconsistent with the concept of Jerusalem as a corpus separatum. Thus at present there are no states that maintain embassies in Jerusalem. The UK and some other states maintain consular posts in Jerusalem; the UK's consular post is based on the city's international status, and no exequatur or other authority for its establishment is sought or obtained from Israel. Most states, including the United Kingdom, regard Israel as exercising only de facto authority over West Jerusalem. Although the 1949 Israel-Jordan General Armistice Agreement endorsed the de facto division of the City, it did not affect the legal status of Jerusalem. In particular Article II expressly provided that the Agreement should not confer any political or military advantage, that it should not prejudice the rights, claims or positions of either party and that it was dictated exclusively by military considerations.
    
    
12. As regards East Jerusalem, prior to the 1967 conflict, that part of the City was generally recognised as under the de facto administration of Jordan. Israel's occupation of East Jerusalem in the 1967 conflict did not confer any title. This is firstly, because of the well-established rule of international law that belligerent occupation cannot confer title and secondly, because of the principle of the inadmissibility of acquisition of territory by force and the requirement that Israel should withdraw from (the) territories occupied by her in the 1967 conflict as laid down in Security Council Resolution 242. Accordingly sovereignty over East Jerusalem, like the remainder of Palestine, remains in abeyance.
    
    
13. The next question that needs to be considered is whether Jerusalem has a status different from that of the Occupied Territories and Israel. Although the UN Partition Plan proposed that Jerusalem should have the status of a corpus separatum under a special regime to be administered by the UN, that regime never came into effect for reasons that are well known. However it is clear from the history of United Nations' efforts to internationalise the City following the rejection of the Partition Plan that the concept of a corpus separatum under an international regime for the City lived on. (It should also be noted that, prior to the de facto occupation of East Jerusalem by Jordan in 1950, the Arabs also accepted the principle of an international regime for Jerusalem). Although the proposals for Jerusalem in the UN Partition Plan were recommendations only and are therefore not legally binding, there does appear to be a wide measure of agreement that Jerusalem should continue to be regarded as a corpus separatum (i.e. territory that is legally distinct from Israel and the rest of the Occupied Territories), even though the precise nature of the regime that will apply to the City has not been agreed. It is for this reason that states have not recognised Israel's claim to sovereignty over West Jerusalem and have not established embassies there. The UN General Assembly and Security Council Resolutions subsequent to General Assembly Resolution 181 speak rather vaguely of the "status of Jerusalem" without defining precisely what that status is. In most cases the term is used in the context of condemning Israeli actions tending to assert Israeli sovereignty over the city and the intention is to ensure that the status quo (whatever that may be) is not altered. Nevertheless the phrase must be interpreted in the historical context, in particular the efforts of the United Nations to establish an international regime for the City and the widespread acceptance of the corpus separatum concept.
    
    
14. What can be distilled from the foregoing is the following. The international community decisively rejects Israeli claims to sovereignty over the City (East and West). Nor is it accepted that there is currently any other Power that has sovereignty over the city. Sovereignty is in abeyance. There also appears to be a consensus that Jerusalem does have a status separate from Israel and the rest of the Occupied Territories. The unsuccessful efforts of the United Nations to broker a solution specific to Jerusalem, the widespread acceptance of the corpus separatum concept, and the references in successive UN Resolutions to the "status of Jerusalem" and to the "Palestinian and Arab territories occupied by Israel since 1967, including Jerusalem" testify to that. The precise nature of that status is undetermined. The legal regime that will apply to Jerusalem is a matter that will need to be settled in the context of the final peace settlement, as agreed between the two sides in the Declaration of Principles and in the Interim Agreement. Whether the regime will take the form of a divided city with each side having sovereignty over its respective half, a condominium, an international regime as envisaged in the original Partition Plan, or some other solution, is a matter for negotiation. The Palestinian position regarding sovereignty over the City
    
    
15. The Palestinian position is that Jerusalem should be the capital of the State of Palestine. The Declaration of Independence adopted by the Palestine National Council in 1988 declared "the establishment of the State of Palestine in the land of Palestine with its capital at Jerusalem". In the Palestinian view that claim necessarily involved an assertion of sovereignty over the City. The Palestinian position has received overwhelming support from the Arab and Non-Aligned countries. The Sixth Conference of Heads of State or Government of Non-Aligned countries affirmed a number of basic principles for a comprehensive solution of the Arab-Israeli conflict, including that "the City of Jerusalem is an integral part of occupied Palestine. It must be evacuated in its entirety and restored unconditionally to Arab sovereignty". The Third Islamic summit conference "the Palestine and Al-Quds al-Sharif session" held in Mecca in January 1981, stressed "the determination of the Palestinian people to maintain their eternal right to the Holy City of Al-Quds as the capital of their homeland Palestine, and the insistence of Muslim Governments and peoples alike on their eternal right to the Holy City of Al-Quds, in view of the permanent political, religious, cultural and historical importance of Al-Quds to all Muslims", and affirmed " the commitment of Islamic States to liberate Al-Quds to become the capital of the independent Palestinian State, and to reject any situation which might infringe on the Arab right to full sovereignty over Al-Quds". In their declaration adopted at Fez, Morocco, in September 1982, the heads of State or Government of the League of Arab States also called for the establishment of an independent Palestinian State with Al-Quds as its capital.
    
    
16. It should be pointed out that the claim of the Palestinians for Jerusalem to be the capital of the State of Palestine does not necessarily mean that Palestine has to have sovereignty over the whole of the City. It would be possible legally for the solutions that have been canvassed to resolve the Jerusalem problem, such as the internationalisation proposal in Resolution 181, a condominium, or a divided city with Israel and Palestine having sovereignty over their respective halves, to be implemented with Jerusalem as the capital of the Palestinian State. There is a precedent for a state having as its capital a city over which it did not have sovereignty. Prior to the unification of Germany, the City of Berlin was under the quadripartite administration of the USSR, USA, UK and France. When the USSR withdrew from the quadripartite administration of the City, the German Democratic Republic (GDR) was established with the Eastern Sector of Berlin as its capital. The three Western Allies did not recognise the GDR and regarded the City as remaining under quadripartite administration. They continued to regard the City as retaining that status even after they recognised the GDR and opened diplomatic relations with the GDR with embassies in East Berlin.
    
    
17. The basis for any Palestinian claim to sovereignty over Jerusalem is that under the Ottomans Jerusalem was an integral part of the territory of Palestine. Prior to, and during the period of, the Mandate, Jerusalem was the administrative capital of Palestine. Until Jewish immigration altered the demographic structure of the City, the vast majority of the inhabitants of the City were of Arab origin. Although sovereignty over Palestine did not pass to the Mandatory Power, sovereignty was not extinguished by the Mandate and remains in abeyance. Sovereignty vests in the Palestinian people and will be revived once Palestine has obtained general recognition as an independent state. Accordingly the State of Palestine is entitled to sovereignty over those parts of the mandated territory of Palestine, including Jerusalem, that are not under the sovereignty of any other state (Israel).
    
    
18. It should be pointed out that a distinction should be drawn between a claim to sovereignty and the question as to who has sovereignty over the City at the present time. As pointed out in paragraph 9 above, sovereignty over the City is currently in abeyance. Nevertheless, it is clear from the preceding paragraph that the Palestinian claim has legal substance. Accordingly, the Palestinian side has the right to expect that it will be taken fully into account the negotiations that will determine the future status of the City. The fact that the Palestinian side has in the past been, and may in the future be, willing to accept a solution for the future of the City that does not involve full sovereignty, such as internationalisation, condominium, or a divided City, does not mean that the claim as such is weakened.
    
    

The Israeli claim to sovereignty

19. As mentioned in the introduction to this paper, the religious and historical claims of Judaism to the City are irrelevant when it comes to considering the question of title to the City today. In so far as it is possible to ascertain any legal arguments by Israel to justify their claim to sovereignty they appear to be these. Israel is entitled to enjoy sovereignty over the territory it took militarily in 1948 because UN General Assembly Resolution 181 proposed that there should be two states in Palestine, an Arab and a Jewish state, and the international community accepted Israel's title by virtue of Israel's recognition and entry into the United Nations. This argument is of doubtful validity. Resolution 181 contemplated a Jewish state of smaller dimensions than the territory Israel captured in 1948 and recognition and UN membership do not necessarily imply recognition sovereignty over territory in dispute. But in any event these arguments cannot apply to sovereignty over Jerusalem since Resolution 181 did not contemplate Jerusalem forming part of the proposed Jewish State and Israel's claim to sovereignty over Jerusalem has not been generally recognised. An alternative argument has also been put, namely, that Israel is entitled to sovereignty over territories occupied in 1948 and 1967 since she acted in self-defence and the territories in question were not under the sovereignty of any other Power. But it is a well-established principle of international law that the exercise of self-defence cannot of itself form the basis for the acquisition of title. Nor is the fact that the territories in question were not under the sovereignty of any other power relevant. Israel would only be able to acquire title if the territories were res nullius (which they clearly were not), or Israel can demonstrate that her claim is superior to the claim of any other state in the region. And in so far as East Jerusalem is concerned, Israel's claim to title is further flawed by the fact that belligerent occupation cannot confer title and that the principle of inadmissibility of acquisition of title by force applies to the Occupied Territories, including Jerusalem.
    
    
20. It is apparent from an examination of the respective merits of the Palestinian and Israeli claims that the Palestinian claim is by far the stronger of the two. Is there a difference between the status of the New City and the Old City?
    
    
21. So far as the current situation on the ground is concerned, there is a legal difference between West Jerusalem (the New City) and East Jerusalem (the Old City). Israel has been generally regarded since 1948 as being in de facto occupation of West Jerusalem and not in belligerent occupation of that part of the City. As regards East Jerusalem, Israel is regarded as a belligerent occupant (which cannot confer title), the Fourth Geneva Convention and the other rules of International Humanitarian Law apply to that part of the City, and it is included among the territories from which Israel must withdraw in accordance with Resolution 242. Although Israeli title to the City has not consolidated sufficiently to be considered legitimate, it can be argued that their claim to West Jerusalem is less fragile than that to East Jerusalem. West Jerusalem has been under the de facto administration of Israel since 1948 and this situation has achieved general acquiescence on the international plane. To put it another way, over 50 years of de facto administration would provide a far firmer base for an eventual consolidation of title than 33 years of belligerent occupation. However it is important to note that de facto recognition is no more than recognition of Israeli administration of West Jerusalem as a fact (which is undeniable). Provided recognition or acquiescence remains at this level and until such time as there is a negotiated settlement of the Jerusalem question, Israel would not be in a position to consolidate her title.
    
    
22. Leaving aside the situation on the ground, there is in fact no distinction as to the status of the territory of the two parts of the City. No power currently has sovereignty over the city and sovereignty remains in abeyance, pending agreement on the legal regime that will apply to the City.
    
    
23. It may be argued that there is a difference in the status of the two parts of the City because of the location of many of the Holy Places in the Old City. Although, as mentioned, there is no legal distinction regarding the question of sovereignty, there does appear to be a specific legal regime that applies to the Holy Places. The history of the legal regime is long and complex and it would overburden this paper to go into the question in any great detail. Nevertheless an understanding of the situation does require some knowledge of what is known as the "Status Quo" arrangements. These were arrangements that originated in a Firman (Imperial Decree) of 1852 that imposed a truce over the disputes on the respective rights and interests of the different Christian communities with regard to several important Christian sites, by freezing the situation. The Status Quo thus embodied a legal regime regulating the use and possession of the Holy Places of importance to the different Christian communities. Implicit in the regime was also the understanding that any change in the Status Quo could only take place with the agreement of the religious communities affected. Following the end of Ottoman rule over Jerusalem the Status Quo principles were taken over by the Mandatory Power (as it was obliged to do in accordance with Article 13 of the Mandate) and extended, by analogy, to the Jewish and Muslim Holy Places. Following termination of the Mandate the continuation of the Status Quo was proposed in Resolution181. "Existing rights" with regard to the Holy Places were not to be denied or impaired: liberty of access and freedom of worship were to be guaranteed in accordance with "existing rights". By and large, the Status Quo continued under the de facto Jordanian administration of East Jerusalem, at least as regards the Christian and Muslim Holy Places, and continued under the Israeli occupation. Israel has also committed herself internationally to preserve the Status Quo (at least as regards the Christian communities) in the Fundamental Agreement with the Holy See of 13 December 1993. In Article 9 of the Peace Treaty with Jordan of 25 October 1994 both sides agreed to provide freedom of access to places of religious and historical significance. Israel also undertook to respect the "special role of the Hashemite Kingdom of Jordan in the Muslim Holy Shrines in Jerusalem" and to give high priority to Jordan's "historic role" in these shrines.
    
    
24. From an examination of the history, it is apparent that the regime applicable to the Holy Places is not simply a matter of custom and practice, or even a matter of municipal law, but has hardened into an international legal norm. However, it is difficult to characterise the nature of the international legal regime that applies to the Holy Places in Jerusalem. To apply a municipal law analogy, the regime is in the nature of an easement or servitude over the land. Although the regime is sui generis the municipal law analogy is probably the closest one gets to describe it. Applying the analogy to the international plane, it means that the obligation to maintain the Status Quo with regard to the Holy Places "runs with the land". Thus whoever is occupier of the territory on which a Holy Place is situated is under an international legal obligation to maintain the Status Quo in relation to it and any change in the Status Quo arrangements can only take place with the agreement of the religious communities concerned. When one examines the history of the matter there appears to be a consistent practice in this regard, starting from the time of the first change of "occupier" at the time of the Mandate. Israel as the most recent "occupier" appears to have accepted the obligation and entered into international agreements with third powers to uphold it (see the Fundamental agreement with the Holy See and the Peace Treaty with Jordan referred to above). And in relation to the Holy Places outside of Jerusalem both Israel and the PLO have accepted a similar obligation (see Article 32 of Annex III of the Interim Agreement). In relation to East Jerusalem, it can be argued therefore that whoever assumes responsibility for the administration of that part of the City in an eventual peace settlement will be obliged to continue the Status Quo with regard to the Holy Places situated within it.
    
    

Has the Interim Agreement affected the position on Jerusalem?

25. This question can be answered in the negative. Article XXXI (5) of the Interim Agreement makes it clear that the question of Jerusalem is one of the remaining questions reserved for the negotiations on permanent status. Furthermore, Article XXXI (6) provides: "Nothing in this Agreement shall prejudice or preempt the outcome of the negotiations on permanent status to be conducted pursuant to the DOP. Neither Party shall be deemed, by virtue of having entered into this Agreement, to have renounced or waived any of its existing rights, claims or positions". Jerusalem is in fact rarely mentioned in the Interim Agreement but if the Israelis were ever to argue that some provision of the Agreement in some way supported their position on Jerusalem, the Palestinian side could point to Article XXXI (6) to argue that their legal position on Jerusalem has in no way been affected.

26 April 2000