JERUSALEM AND THE PEACE PROCESS - Jul-94

ISRAEL LAW REVIEW, Vol. 28, Nos. 2-3, Spring-Summer 1994
(For the full text with notes, see the original publication.)

Ruth Lapidot

Bessie and Michael Greenblatt Professor of international law at the Faculty of Law and at the Department of International Relations of The Hebrew University, Jerusalem. This article in based an research done under the auspices of the Jerusalem Institute for Israel Studies. The author wishes to express her thanks to the Institute and to its director,Ms. Ora Ahimeir. Special thanks are due to Ms. Tsyiona Hizkiahu and to Ms. Aliza Argov-Shirion for their help. The author is also very grateful to Mr. Joel Singer and Dr. Moshe Hirsch for their advice and suggestions.

Introduction

1. A Short Legal History of Jerusalem

2. Opinions on the Legal Status of Jerusalem

3. Jerusalem and the Peace Process:

a. A Short overview
b. Jerusalem and the 1991 Madrid Peace Conference
c. Jerusalem and the 1993 Declaration of Principles
d. Jerusalem and the 1993 Letter by Minister Peres
e. Jerusalem in the 1994 Peace Treaty between Israel and Jordan

Conclusions

Introduction

It is generally thought that Jerusalem is the most difficult problem that the peace-makers have to deal with. The centrality of the issue of Jerusalem derives neither from security considerations nor from economic interests, but from emotional and religious sensitivities. The complexity of the issue is the result of three factors: the city is holy for adherents of Christianity, Islam and Judaism, namely, it is sacred for many millions of people, most of whom do not have in the city; it is the subject of conflicting national claims of two peoples Israelis and Palestinian Arabs; and its population is very heterogeneous. A solution to the conflicts about Jerusalem is a sine qua non for the achievement of a viable and durable peace in the area.

In the following pages an attempt will be made to review the legal history of Jerusalem as well as various opinions on the legal status of the city. Against this background the provisions in the recent documents will be analyzed, and perhaps some considerations for the future may be advanced.

1. A Short Legal History of Jerusalem

Soon after the end of the Middle Ages, in 1517, the city, together with the rest of Palestine, came under Ottoman rule, which lasted four hundred years. Since 1830 the city has had a Jewish majority - at first merely a relative majority but subsequently an absolute one.

The Holy Places in the city have often been a matter for dispute. In the 19th century there was bitter controversy when certain European countries extended their protection over the various Christian churches in Palestine, and over their Holy Places. In order to regulate the status of the various churches at the Holy Places, the Ottoman government published a number of firmans, the most important one being that of 1852. This firman dealt with certain Holy Places and determined the powers and rights of the various denominations in those places. That arrangement became generally known as the status quo, and has been applied to the Church of the Holy Sepulchre and its dependencies, the Convent of Deir al-Sultan, the Sanctuary of the Ascension (on the Mount of Olives), the Tomb of the Virgin Mary (near Gethsemane) in Jerusalem, as well as the Church of the Nativity, the Milk Grotto and the Shepherds' Field near Bethlehem. The status quo received international recognition by the 1856 Treaty of Paris (after the Crimean War), and by the 1878 Treaty of Berlin. During the period of the British Mandate in Palestine, the principles of the status quo were extended also to the Western (or Wailing) Wall and to Rachel's Tomb (near Bethlehem).

Neither the Balfour Declaration of 1917, nor the Terms of the British Mandate for Palestine drafted by the Council of the League of Nations, referred to Jerusalem. However, the Terms of the Mandate did deal with the Holy Places: the Mandatory was requested to preserve existing rights; in those places and to ensure free access and worship, subject to requirements of public order and decorum. A Commission which was to "study, define and determine" the various rights and claims in connection with the Holy Places was never established due to lack of agreement among the Powers about its composition.

Shortly after the Mandate came into force, Britain adopted the Palestine (Holy Places) Order in Council of 1924 under which matters concerning the Holy Places were excluded from the jurisdiction of the courts, but had to be handled by the British High Commissioner.

In 1947, after the Second World War, Britain requested the U.N. General Assembly to consider the Palestinian question, and on the 29th November, 1947, the General Assembly adopted the famous resolution on the future government of Palestine. Part III of that resolution dealt with Jerusalem. The General Assembly recommended the establishment of a "corpus separatum under a special international regime" to be administered by the United Nations through the Trusteeship Council and a Governor to be appointed by it. In the economic sphere, the city was to have been united with the Jewish and Arab States which the General Assembly had recommended to set up in Palestine.

The resolution of the General Assembly received the consent of the national leadership of the Jewish Community of Palestine," but was categorically rejected by the Arabs, who immediately started attacking Jewish towns and villages, including the Jewish neighbourhoods of Jerusalem.

On 14th May 1948, when the British Mandate over Palestine drew to its end, representatives of the Jewish Community in Palestine proclaimed the establishment of the State of Israel. The declaration does not mention Jerusalem, but it foresees that Israel "will safeguard the Holy Places of all religions". Immediately after the establishment of the State, the armies of five Arab States invaded Israel. In the Jerusalem region the armies of Jordan (or Transjordan as it was then called) and Egypt were operating. The battle for Jerusalem was a fierce one, partly because at a certain stage the Jewish areas were cut off from the coastal plain. The battle for the Old City ended with the surrender of the Jewish Quarter to the forces of the Jordanian Arab Legion.

Even before the fighting had died down, a special agreement was concluded under the auspices of the U.N. between Jordan and Israel regarding the Jewish enclave on Mount Scopus.12 The parties agreed to neutralize this area as well as the adjoining area of the Augusta Victoria hospital which was under Jordanian control, and to assign these areas to U.N. protection. When the fighting ended, Jordanian forces were in control of the eastern parts of the city, whereas the western sector was under Israeli control. In November of 1948 a truce came into force throughout the city, and at the beginning of 1949 an armistice agreement was concluded between Israel and Jordan. This agreement gave rise to various practical as well as legal questions.

The application of Israeli law to the western sector of Jerusalem was ensured by proclamations made by the Minister of Defence in 1948, and by the Area of Jurisdiction and Powers Ordinance of 1948. That ordinance provided that the law in force in the State of Israel should also apply to any part of Palestine which the Minister of Defence would designate by Proclamation to be under occupation of the Israel Defence Forces.

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

In 1950 a conference of dignitaries from the areas conquered by Jordan in 1948 was convened in Jericho, and following their resolution the King of Jordan proclaimed the annexation of the West Bank (including Jerusalem) to his Kingdom.

A number of debates on the future of Jerusalem took place in the U.N. during the years 1948-1952, and the Trusteeship Council drew up a draft statute for the city, but from 1952 until the Six-Day War in 1967 no significant discussions took place on the subject.

When the Six-Day War broke out, Jordan attacked west Jerusalem, despite a promise by Israel that if Jordan refrained from attacking Israel, Israel would not attack Jordan. A few days later, Israel Defence Forces recovered the area which had been taken by the Jordanian army ("Government House"), and dislocated that army from east Jerusalem and the West Bank. Until this very day, opinions differ between Israeli (and most western) lawyers on the one hand, and Arab lawyers on the other hand, on the question of who was the aggressor in the Six-Day War.

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

It should be pointed out, however, that in several respects Israeli law granted east Jerusalemites certain facilities, by laying down special arrangements for them, as embodied in the Legal and Administrative Matters (Regulation) Law [Consolidated Version] of 1970. The most conspicuous examples of the differences between the law as applied to Israel, on the one hand, and to east Jerusalem, on the other hand, are the system of education, and rules on foreign currency: in the eastern neighbourhoods the Jordanian school curriculum is taught, and the Jordanian dinar is used in parallel with the Israeli shekel.

A special arrangement has also been followed in matters of nationality. Israel nationality was not imposed on residents of east Jerusalem, but it can be acquired by application on their part. So far, however, only a small number of residents of the eastern sector of the city have applied for Israeli citizenship, although apparently the numbers have risen considerably recently.

Israel has increased the municipal boundaries of Jerusalem, and they were fixed as extending from Atarot in the north to Rachel's Tomb in the south, and from Ein Kerem in the west to the eastern slopes of Mount Scopus. The above measures were met with fierce criticism from various U.N. bodies.

The question arose at the time as to whether these acts constituted annexation of the eastern parts of Jerusalem. The then Minister of Foreign Affairs, Abba Eban, informed the U.N. Secretary General in writing in July 1967 that they did not constitute annexation, but administrative and municipal integration. On the other hand, as we shall see in the next section, from the point of view of Israeli law, it was held in a number of decisions of the Supreme Court that the eastern sectors of Jerusalem had become a part of the State of Israel.

Immediately after the fighting ended in Jerusalem in June 1967, Prime Minister Levi Eshkol convened the spiritual leaders of the various communities and reassured them about Israel's intention to protect all the Holy Places and to permit free worship. The Knesset soon passed the Protection of the Holy Places Law, 1967, which ensures protection of the Holy Places against desecration as well as freedom of access thereto.

Jerusalem was not mentioned in Security Council Resolutions 242 and 338 of 22 November 1967 and 22 October 1973 respectively." In the 1978 Camp David accords between Israel and Egypt Jerusalem was not dealt with due to fundamental differences of opinion between the parties on this issue. However, each of the participants in the Conference stated its position in a letter sent to the other party via the President of the United States.38 Israel's Prime Minister, Menachem Begin, stated that in accordance with legislation of 1967, "Jerusalem is one city, indivisible, the Capital of the State of Israel", whereas Egypt's President, Anwar el-Sadat, stated that "Arab Jerusalem is an integral part of the West Bank", and "should be under Arab sovereignty". At the same time he determined that "essential functions in the City should be undivided", and that "a joint municipal council composed of an equal number of Arab and Israeli members can supervise the carrying out of those functions". He added that "in this way, the city shall be undivided".

In 1980 the Knesset adopted a new law concerning Jerusalem - the Basic Law: Jerusalem Capital of Israel. This law states that "Jerusalem, complete and united, is the capital of Israel", that it is "the seat of the President of the State, the Knesset, the Government and the Supreme Court", that the Holy Places shall be protected, and that the Government has to provide for the development and prosperity of Jerusalem. Actually, the law does not contain any innovation. As to the designation of this statute as a Basic Law, it is uncertain what are the consequences of such a designation, in particular since none of its provisions has been entrenched. Nevertheless, its adoption aroused resentment in the international community and was considered by the Security Council to be a violation of international law. The Council called upon member states with embassies situated in Jerusalem to withdraw them from the city, and, indeed, the embassies, thirteen in number, left the city following the resolution. In 1982 the Embassy of Costa Rica returned to west Jerusalem, and was followed by that of El Salvador.

In his 1982 peace initiative, President Reagan declared, inter alia, that the status of Jerusalem should be determined through negotiations, that the Palestinian inhabitants of the eastern part of the city should be permitted to take part in the elections for the autonomy institutions, and that the city should remain undivided.

King Hussein of Jordan, who had declared in 1950 that he annexed the West Bank including Jerusalem, announced in 1988 that he intended to disengage the West Bank from Jordan in the sphere of law and administration. In the same year, the Palestine National Council of the PLO proclaimed the establishment of the State of Palestine with Jerusalem as its capital. The proclamation was recognized by many states. However, a mere proclamation, even if followed by large-scale recognition, is not sufficient for the establishment of a State, unless the four prerequisites for the existence of a State are present: territory, population, effective government, and the ability to conduct international relations."

2. Opinions on the Legal Status of Jerusalem

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

With regard to west Jerusalem, there are four basic opinions. According to the first, Israel lawfully acquired sovereignty in 1948. When Britain left the area, a vacuum of sovereignty ensued. This vacuum could validly be filled only by a lawful action. Since Israel acquired control of west Jerusalem in 1948 by a lawful act of self-defence, she was entitled to fill that vacuum and thus became the lawful sovereigns Crown Prince Hassan bin Talal of Jordan has expressed the opinion that sovereignty over Jerusalem is suspended until a comprehensive settlement is agreed upon.

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

Others maintain that the status of Jerusalem is subject to the U.N. General Assembly resolution of 1947 which - as mentioned earlier - recommended the establishment of a corpus separatum under a special international regime and administered by the United Nations.

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

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

Moving now to east Jerusalem, well start by studying its status during the period 1949-1967 (the time it was under Jordanian rule). According to a first opinion, during that time the area was under a vacuum of sovereignty: Britain had abandoned sovereignty, but Jordan could not fill this gap because it had occupied east Jerusalem by an illegal act of aggression.

Under another theory - similar to the parallel one concerning west Jerusalem - the Palestinian Arab people has had and still has title to "legal sovereignty" over the whole of Palestine, including east and west Jerusalem.

A third opinion recognized Jordanian sovereignty over east Jerusalem, derived from the exercise of the right of self-determination by the inhabitants, i.e., the resolution adopted by the notables in Jericho in 1950.

Last but not least, with regard to east Jerusalem, like the western parts, certain writers claim that the corpus separatum solution is still valid.

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

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

The expert who recognized Jordanian sovereignty in east Jerusalem expressed the opinion that this sovereignty survived the war, but Israel is a lawful occupant of those areas since she occupied them war of self-defence. The corpus separatum theory, of course, was not affected by the w As to the practical attitude of the international community: as mentioned, neither before nor after 1967 did the foreign consuls request exequatur from Jordan or from Israel, which means that neither sovereignty of the one nor of the other was recognized. Moreover, s 1967 the U.N. organs, including the Security Council, have repeatedly stated that east Jerusalem is occupied territory subject to the Fourth 1949 Geneva Convention.

The attitude of the United States has been expressed, inter alia a letter sent by President Carter to Egypt and Israel in the context the 1978 Camp David accords. The President wrote that the position of the U.S. remained as stated by Ambassador Goldberg at the General Assembly in 1967, and subsequently by Ambassador Yost in Security Council in 1969. There is, however, a difference between speeches of the two Ambassadors. While they both stressed that actions of Israel in the city were merely provisional and that the problem of Jerusalem's future should be settled by negotiations, Ambassador Yost added that east Jerusalem was occupied territory to which Fourth 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War applied. This attitude, however, did prevent the U.S. from requesting Israel to extradite to the U.S. a person who lived in the eastern sector of the city.

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

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

The Israeli courts, on the other hand, have held the view that the eastern sectors of Jerusalem had become a part of the State of Israel. Perhaps the most famous case on this question is Ruidi and Maches v. Military Court of Hebron. This case involved an antiquities dealer from Hebron who transferred antiquities from Hebron to east Jerusalem, without first obtaining an export licence as required by the Jordanian antiquities law which applied on the West Bank. The dealer pleaded in his defence that east Jerusalem was not foreign territory in relation to the West Bank, so that he could not be charged with exporting without a licence. However, the Supreme Court did not accept this argument since it considered that the eastern sectors of Jerusalem had become part of Israel.

Against this background of Jerusalem's turbulent legal history, and the conflicting opinions on its status, it may be easier to understand the hard bargaining over the city in the peace process.

3. Jerusalem and the Peace Process

a. A Short Overview

One could argue over the question, when did the present peace process start. For practical purposes, we will choose as starting point the adoption of Security Council Resolution 242 of November 1967, since this text is referred to in many of the agreements which have so far been reached. As already mentioned, Resolution 242 does not include any express reference to Jerusalem. As will be remembered, this Resolution, adopted in the wake of the Six-Day War, laid down the basic principles upon which peace should be founded. Similarly, Security Council Resolution 338 adopted after the 1973 October War does not deal with Jerusalem. Neither do the Camp David accords of 1978 include provisions on Jerusalem, but the parties expressed their differing opinions on the subject in accompanying letters, as detailed above. There was no reference to Jerusalem in the Peace Treaty concluded in 1979 by Egypt and Israel.

In the course of the negotiations regarding autonomy for the Arab inhabitants; of the West Bank and Gaza, which took place during 1979-1982 in the wake of the Camp David accords, fundamental differences of opinion emerged over Jerusalem; while the Israeli delegation took the view that Jerusalem and its inhabitants were not included in the autonomy plan outlined in the Camp David accord since they were part of Israel, Egypt argued that east Jerusalem was part of the West Bank and as such the autonomy regime was supposed to apply to it. As will be remembered, these negotiations did not lead to any agreement.

As mentioned above, in his peace initiative of 1 September 1982, President Reagan stated that he was "convinced that Jerusalem must remain undivided, but its final status should be decided through negotiations". Moreover, he expressed his support for "participation by the Palestinian inhabitants of East Jerusalem in the election of the West Bank-Gaza authority. This proposal was rejected expressly by Israel, and implicitly by the Arab Summit Conference at Fez.

A similar disagreement emerged when Israel launched its May 1989 peace initiative, which proposed the establishment of peace between Israel and her neighbors; an international endeavor to resolve the problem of the residents of the Arab refugee camps; and the holding of elections among the Palestinians of the West Bank and the Gaza Strip in order that the elected representatives negotiate with Israel on a transitional period of self-rule, to be followed later by negotiations for a permanent solution. In the negotiations preceding those elections, the various parties disagreed on the question whether the Palestinians who lived in the eastern parts of Jerusalem should be authorized to participate in the vote. Eventually those negotiations merged with the preparations for the 1991 Madrid conference.

In October 1991 the Madrid Conference for Peace in the Middle East was convened by the United States and the Soviet Union. After the Conference, bilateral and multi-lateral negotiations took place. The question of Jerusalem was especially relevant to the negotiations between Israel and the Palestinians who attended the Conference as part of a joint Jordanian-Palestinian delegation. According to the invitation from the U.S. and the Soviet Union, the negotiations with the Palestinians were to deal at the first stage with the establishment of interim self-government arrangements in the West Bank and Gaza for a period of five years, while in the third year after the setting up of that regime, negotiations on the permanent status of these areas would start. Although the text of the invitation to the Conference does not refer to Jerusalem, the city played an important role in the negotiations that preceded the Conference and in the letters of assurances from the United States to the Palestinians. The details will be discussed below.

While the post-Madrid bilateral meetings took place between Israel and a Palestinian delegation which, upon Israel's demand, formally did not include representatives of the PLO, the latter and Israel conducted secret negotiations in Oslo with the good offices of Norway's Minister of Foreign Affairs. As a result, a Declaration of Principles was initialled in Oslo and signed in Washington D.C. on 13 September 1993.

This text was no doubt a turning point in the attitude of the two parties on the question of Jerusalem: it was agreed that Jerusalem would not be included in the interim self-government arrangements to be agreed upon - a concession by the Palestinians, and, on the other hand, Israel conceded that Jerusalem would be one of the subjects to be dealt with in the framework of the negotiations on the "permanent status" to start in 1996. In addition, it was agreed that "Palestinians of Jerusalem who live there will have the right to participate in the election process" for the Interim Self-Government Authority for the West Bank and Gaza. These provisions will be analyzed in detail later.

About a month after the signing of the Declaration of Principles, Israel's Foreign Minister Shimon Peres; sent a letter concerning Palestinian institutions in east Jerusalem to the Foreign Minister of Norway, Johan Jurgen Holst. The letter was kept secret for some time, and its discovery aroused much criticism in Israel. So far the latest reference to Jerusalem in the peace process are included in the Washington Declaration of 25 July 1994 and in the Peace Treaty of 26 October 1994, both concluded by Israel and Jordan. These texts refer to Jordan's special role at the Muslim Holy Shrines in Jerusalem. This provision has aroused criticism on the part of the Palestinians. The competition between Jordan and the Palestinians has led to the appointment of two new Muftis for the Muslim Waqf in Jerusalem, one appointed by Jordan and the other by the Palestinians. However, according to some press reports, Jordan intends to transfer the custody of the Holy Places to the Palestinians once the latter acquire control of the city in the framework of the permanent status to be negotiated later. One should remember, however, that the status of the Muslim Holy Shrines in Jerusalem is of interest and concern not only to Jordan and the Palestinians.

b. Jerusalem and the 1991 Madrid Conference for Peace in the Middle East

As mentioned, Jerusalem was a source of disagreement in the negotiations that preceded the convening of the Conference. In order to avoid any infringement of the rights of Israel in Jerusalem, the Government of Israel demanded that Jerusalem should not be discussed in the negotiations,and that no representative are siding in Jerusalem should participate in the Palestinian delegation. On the other hand, the Palestinian delegation demanded the participation of east Jerusalem delegates in the negotiations, the application to east Jerusalem of the regime of self-government to be negotiated, and complete Israeli withdrawal from the eastern part of the city.

The invitation to the Conference did not refer to Jerusalem at all, nor was the city mentioned in the U.S. letter of assurances to Israel. It was, however, stated in the letter that "no party in the process will have to sit [at the negotiations) with anyone it does not want to sit with". On the other hand, in the letter of assurances sent to the Palestinians, the question of Jerusalem was discussed extensively. The U.S. promised that the composition of the delegation would not affect the claims of the Palestinians to Jerusalem. It expressed the view that the city should never again be divided, and that its final status should be determined by negotiations. The U.S. also stated that it did not recognize the annexation of east Jerusalem by Israel nor the extension of the municipal boundaries. It was the view of the U.S. that "Palestinians of east Jerusalem should be able to participate by voting in the elections for an interim self-governing authority", and that the Palestinians have the right "to bring any issue, including east Jerusalem, to the table". The U.S. did not specify whether Jerusalem could be brought "to the table" of the negotiations on the interim arrangements, or of the later permanent status negotiations. As will be remembered, the letters of assurances were issued by the United States in order to prod the parties to participate in the Conference.

These various texts raise some interesting legal questions, in particular Are they binding? Do they create rights and obligations? One could perhaps argue that the letters of invitation created an implied agreement on the agenda by the participants since the parties came to the Conference on the basis of that letter. As to the letters of assurances, different texts were sent to the various parties, and the question is, whether they constituted binding bilateral agreements between the U.S. and the respective addressees or perhaps binding unilateral declarations by the U.S. The text of those letters sounds more like a political statement of intentions, rather than like a binding legal commitment.

In the framework of the bi-lateral negotiations that followed the Madrid Conference, Israel made a concession to the Palestinians in May 1993: Israel agreed that Feisal al-Husseini, a resident of Jerusalem, participate in the Palestinian delegation, and that the Palestinian residents of east Jerusalem vote in the elections to the self-governing authority on whose establishment the parties were negotiating.

c. Jerusalem and the 1993 Declaration of Principles

As already mentioned, Israel agreed to the inclusion of Jerusalem in the agenda of the negotiations on the permanent status: "It is understood that these [permanent status] negotiations shall cover remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest" (Article V, para. 3). The PLO, on the other hand, agreed to the exclusion of the city from the jurisdiction of the Palestinian Interim Self-Government Authority (the "Council"): "Jurisdiction of the Council will cover West Bank and Gaza strip territory, except for issues that will be negotiated in the permanent status negotiations..." (Article IV).

These provisions raise a few legal issues. First and foremost, what is "Jerusalem"? One may assume that the parties had east Jerusalem in mind, since it seems that nowadays the dispute concerns only east Jerusalem. However, there may also be some matters of interest to the Palestinians about west Jerusalem, e.g., the rights of the refugees who left those areas. If the parties agree to change the status of east Jerusalem, the question of freedom of access between the two parts could also come up.

A more burning question will concern the confines of "Jerusalem": does the provision in the Declaration of Principles envision the city in the limits that existed under the British Mandate? or within the lines recommended in 1947 by the U.N. General Assembly? or those established by Israel and Jordan in the wake of the 1949 Armistice Agreement? or those adopted by Israel after the unification of the city in 1967. This question has no great bearing on the problem of the Holy Places since most of those are situated in the Old City which, under any definition, is included in "Jerusalem". But the matter is crucial with regard to the new Jewish neighborhoods established after 1967, since most of them are included only in the town limits established in 1967. Will these neighborhoods be considered to be a part of the West Bank or of Jerusalem? It may be assumed that when Israel concludes an agreement, terms are used by her with the meaning that they have in her internal legislation, and therefore, according to Israel's intention, the term Jerusalem relates to the area included in the municipal jurisdiction of the city under Israeli law, as described in the historical introduction.

In this respect it may be interesting to make a comparison with the case dealt with in the Advisory Opinion of the Permanent Court of International Justice concerning the Exchange of Greek and Turkish Populations (1925) Greece and Turkey died on the interpretation of the term "established (or "etablis" in the original French text) in the provision of the 1923 Convention on the Exchange of Greek and Turkish Populations, which exempted from the compulsory exchange "All Greeks who were already established ("etablis") before the 30th October, 1918, within the areas under the Prefecture of the City of Constantinople..." Turkey argued that the term "established" should be interpreted to be equivalent to the term "domiciled" as that term was understood according to Turkish legislation. In other words, the Court had to decide, inter alia, on "the value of local legislation as a factor for the interpretation of the word 'established'" in the Convention.

The Court was of the opinion that "... if an expression, not in itself of a legal nature, is used in a convention which derives legal consequences from it, it does not in the least follow that this criterion must be sought in the legislation of the respective contracting States."

This passage could by analogy justify the conclusion that the term Jerusalem should not be interpreted by reference to Israeli law. However, a closer look at that Advisory Opinion reveals, that there is no general rule on the matter, that each case depends on the specific references in the Convention and on the intention of the parties:

"The question whether a provision refers to a mere situation of fact or to domicile in the legal sense of the term is a question of interpretation...

"Whereas the national status of a person belonging to a State can only be based on the law of that State, and whereas, therefore, any convention dealing with this status must implicitly refer to the national legislation, there is no reason why the local tie indicated by the word "established" should be determined by the application of some particular law. It may very well be that the Convention contemplated a mere situation of fact, sufficiently defined by the Convention itself without any reference to national legislation...

"It is hardly likely that the intention was to fix this; criterion by means of a reference to national legislation...

Taking into consideration the nature of the term Jerusalem and the intention of at least one of the parties, it can hardly be claimed that "the Convention contemplated a mere situation of fact, sufficiently defined by the Convention itself without any reference to national legislation". It is not known what are the confines of Jerusalem which the PLO had in mind when the Declaration of Principles was signed. There may, however, be a strong presumption in favor of the borders which have been practically in place for the last 26 years, in particular since the PLO did not express a different opinion when the Declaration was signed.

However, with the agreement of the parties, the negotiations on Jerusalem could also encompass a larger area. This enlargement could serve two purposes. First, the inclusion of some of the metropolitan area of Jerusalem could be helpful for demographic, technical and economic purposes as well as for the planning in the spheres of communication and transportation. Second, the enlargement could perhaps facilitate the achievement of a compromise with regard to the national aspirations of the parties: in such a larger Jerusalem there could perhaps co-exist national institutions of both parties.

Another question concerns the possible substantive scope of negotiations on Jerusalem. Probably, the three main subjects in dispute are: national aspirations, Holy Places, and municipal government. Will the Israeli negotiators be restricted by the 1980 Basic Law: Jerusalem, Capital of Israel discussed above? It would seem that this law does not prevent the government from negotiating on the status of the Holy Places, nor on municipal arrangements. Even in the political sphere, the law leaves considerable leeway to the negotiators, since the law only provides that Jerusalem is Israel's capital and that it has to be united. It goes without saying that the government could initiate a proposal to amend the Basic Law, but probably future negotiations will not require such a change.

The second provision in the Declaration of Principles related to Jerusalem concerns the elections for the "Council" - the Palestinian Self-Government Authority. As mentioned earlier, it was agreed that "Palestinians of Jerusalem who live there will have the right to participate in the election process, according to an agreement between the two sides". In mid-November 1994 Israel's Prime Minister announced that these negotiations are supposed to start on 21 November 1994 and it is possible that by the time this article is published, an agreement will have been reached on the following questions.

The above provision on the election process raises several legal questions. Who are Palestinians? Will a person's declaration of being Palestinian be accepted as binding, or will ethnic or religious affiliation be considered? Then, again, we are confronted with the question what is Jerusalem in this context It may be assumed that for the purpose of qualifying for participation in these elections, the exiting municipal boundaries will be accepted. Another question is raised by the expression "who live there": what is the criterion for -living there"? How long must a person have lived in Jerusalem for qualifying to participate in the elections?

But the most difficult question concerns the expression "participate in the election process": does it refer only to the active right to vote, or does it also include the passive right to be elected? The parties had contradictory intentions with regard to the meaning of this provision when they signed the Declaration of Principles.

Since the Declaration of Principles was concluded "within the current Middle East peace process", namely, the process started at Madrid, one may perhaps look for some guidance in the documents related to that Conference. The question of the elections by east Jerusalemites is mentioned in the U.S. letter of assurances to the Palestinians - a letter drafted after arduous negotiations. According to the text, "it is also the United States position that Palestinians of east Jerusalem should be able to participate by voting in the elections for an interim self-governing authority..." To the extent that this sentence may be considered a precursor or travaux preparatoires of the above provision in the Declaration of Principles, it would support the view that Palestinians who live in Jerusalem may only vote for the Council, but cannot be elected.

During the negotiations of the Declaration of Principles, Israel agreed that Palestinians of east Jerusalem would have the right to vote, but a Palestinian proposal that would have permitted these Palestinians to be candidates in the elections was not adopted. Thus, the exact extent of the participation in the elections has been left to be resolved by the parties in the negotiations on the interim arrangements. In these negotiations the parties also have to reach an agreement on the question whether the polling stations where east Jerusalem Arabs should cast their votes should be situated in Jerusalem itself, or in a nearby location on the West Bank beyond the confines of Jerusalem. During the negotiations for the Declaration of Principles, a Palestinian proposal to the effect that their votes should be cast in east Jerusalem was rejected. The difference between active and passive voting is not merely of a technical nature since the granting of a passive right to be elected could be interpreted as being incompatible with Israel's sovereignty over united Jerusalem, while a mere right of active voting may be reconciled with that sovereignty.

As mentioned earlier, it was agreed in the 1993 Declaration of Principles that Jerusalem would be dealt with in the negotiations on the permanent status of the West Bank and Gaza, but it would not be under the jurisdiction of the interim Self-Government Authority. Thus any request for the transfer of powers with regard to the Jerusalem area in the framework of the interim arrangements would not be warranted by the provisions on Jerusalem in the Declaration of Principles. Moreover, such a request would also be contrary to another provision in the Declaration, namely, the Article which specifies that powers whose transfer is to be considered in the negotiations are only the powers and responsibilities of the "Israeli military government and its Civil Administration" (Article VII(2), and Agreed Minutes to Article IV(2)); as is well known, the military government has no authority in Jerusalem within the borders established in 1967.

Unfortunately, however, probably in order to establish facts on the ground and to preempt the negotiations on the permanent status, certain Palestinian institutions, including "Orient House", have increased their political activity in east Jerusalem. The Government of Israel is of the opinion, that this trend is not compatible with the letter and the spirit of the Declaration of Principles, which has expressly laid down that The offices responsible for carrying out the powers and responsibilities of the Palestinian authority ... will be located in the Gaza Strip and in the Jericho area pending the inauguration of the Council (Annex II, para. 5).

Israel has adopted a law in order to prevent the above activities in Israel including Jerusalem. Under the law, the Palestinian Authority may not open or operate any any representation (including any institutions office or agency) in Israel, nor hold any meeting (including marches, convocations and conferences) on its behalf or under its auspices without a written permit from the Government of Israel. The parallel rule foreseen for the PLO is less stringent and has been introduced in order to prevent the PLO from acting in Israel on behalf of the Palestinian authority. The PLO does not need permission for opening a representation or for holding a meeting, but the Government may order that such a representation be closed or that a meeting convened by the PLO be cancelled. These provisions were introduced parallel with legislation intended to incorporate into Israel's legal system the May 1994 Cairo Agreement between Israel and the PLO on the Gaza Strip and the Jericho Area.

d. Jerusalem and the 1993 Letter by Minister Peres

On 11 October 1993 Israel's Minister of Foreign Affairs, Shimon Peres, sent the following letter to the Foreign Minister of Norway, Johan Jorgen Holst:

"I wish to confirm that the Palestinian institutions of East Jerusalem and the interests and well-being of the Palestinians of East Jerusalem are of great importance and will be preserved.

"Therefore, all the Palestinian institutions of East Jerusalem, including the economic, social, educational, cultural, and the holy Christian and Moslem places, are performing an essential task for the Palestinian population.

"Needless to say, we will not hamper their activity; on the contrary, the fulfillment of this important mission is to be encouraged."

This letter was first kept secret, and its revelation after more than seven months aroused much public debate in Israel.

This document raises some interesting legal questions. First, is this a mere statement of policy, or is it a binding text? To answer this question, the letter has to be examined under two headings. First, can it be considered to be a binding unilateral declaration? International law tends to recognize the binding force of unilateral declarations only if made in public by a competent organ and with the intention of creating legal obligations. The International Court of justice has further stated, that one cannot assume that a unilateral declaration is intended to create a legal obligation when the parties could have reached the same object by a formal agreement. At least two of these conditions have not been met by this letter: it was not a declaration made in public, and its aim could have been achieved more naturally by including it in an agreement.

The letter could still have some legal effect if it were considered to be part of the context of the 1993 Declaration of Principles. Under the rules of interpretation codified in the Vienna Convention on the Law of Treaties:

"2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: ... "(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty..." (Article 31).

However, the above letter does not deal with matters regulated in the Declaration of Principles. It does not interpret the Declaration, and it purports to provide for matters that are extraneous to the Declaration. Hence it cannot be considered to be part of the context for the purpose of interpretation.

Another question concerns the addressee of the letter. As was to be expected, Norway passed the letter on to Yassir Arafat. Even if the letter could have constituted a binding unilateral declaration or a valid element for the purpose of interpretation, it is doubtful whether a third party could rely on it.

Last but not least, the lack of clarity of the lot syntax also speak against the creation of a legally binding commitment. it is difficult to assume that a binding obligation was created if it is impossible to ascertain the contents of what was promised. Assuming that the letter is merely a political statement of policy, the question arises what is the content of this statement It probably was intended to promise that Israel would not hamper the activities of the Palestinian cultural, economic and welfare institutions operating in east Jerusalem. The letter is not expressly limited to existing institutions, but such a limitation could perhaps be inferred from the expression "will be preserved". However, it should be stressed that the letter does not deal with political institutions and diplomatic activity. The reference to the Christian and Muslim Holy Places is rather blurred. A careful reading of the text leads to the probable conclusion, that the Holy Places are "performing an essential task for the Palestinian population", but are not included among the "Palestinian institutions of east Jerusalem".

It follows that the letter is not only devoid of legally binding force, but probably does not contain any meaningful political commitments concerning Jerusalem.

e. Jerusalem in the 1994 Peace Treaty between Israel and Jordan

Following a joint Declaration - the Washington Declaration of 25 July 1994, Israel and Jordan signed a Treaty of Peace on 26 October 1994. Both texts include a similar provision concerning the Holy Places in Jerusalem:

"1. Each Party will provide freedom of access to places of religious and historical significance.

"2. In this regard, in accordance with the Washington Declaration Israel respects the present role of the Hashemite Kingdom of Jordan in Muslim Holy Shrines in Jerusalem. When negotiations on the permanent status will take place, Israel will give high priority to the Jordanian historic role in these shrines..."

The expression used - Holy Shrines - seems to have a narrower connotation than "Holy Places". The provision concerning Jerusalem, in para. 2, includes two commitments one for the present, the other for the future. We will discuss them separately.

Israel declared that it will "respect" Jordan's "present role" at the Holy Shrines. The term "respect" seems to imply that Israel for its part will not take any action that would be inconsistent with Jordan's role at the Holy Shrines. However, the term respect does not involve an obligation to protect this role against third parties, including the Palestinians.

In fact, Jordan has played an important role at the main Muslim Holy Place in Jerusalem, i.e., the Temple Mount. The area is practically under the autonomous administration of the Waqf (Muslim endowment) which for all practical purposes has been under the control of the Jordanian Waqf authorities. Recently King Hussein of Jordan has invested considerable sums in the restoration of the Dome of the Rock edifice.

Israel's promise for the future requires some elaboration. The expression "negotiations on the permanent status" probably refers to the negotiations foreseen by the 1993 Declaration of Principles between Israel and the PLO discussed above. However, since this agreement was concluded between different parties, one could have expected a fuller, more detailed, reference. Or is the lack of reference to the parties to the negotiations on the permanent status intended to leave the door open to a claim by Jordan that it should participate in those negotiations, at least with regard to Jerusalem?

Interestingly, the parties have adopted different terms for the present and the future respectively. For the present, Israel promised to respect Jordan's "present role", while in the future negotiations she is to give priority to the "Jordanian historic role". In other words, in those negotiations Israel is not bound to defend Jordan's present role, and she can prefer to negotiate for a different solution compatible with Jordan's "historic role".

Israel's promise to give high priority to the Jordanian historic role at the Muslim Holy Shrines in those negotiations is only a commitment to try to defend Jordan's historic role, but it does not imply an obligation that this role should be recognized in the future agreement. Since an agreement between Jordan and Israel cannot legally bind a third party, namely, the Palestinians, Israel could not commit herself more definitely. It thus follows, that Israel only committed herself to adopt a certain attitude in the negotiations, and therefore any claim by the Palestinians that the provision in the Jordan-Israel Treaty is incompatible with the 1993 Declaration of Principles, is not well-founded.

Assuming, for the sake of argument, that Israel did commit herself to an outcome which is in contradiction with her obligations towards the Palestinians, the question would arise which of the two obligations Israel would have to fulfil. Under the rules of general international law relating to conflicting agreements between different parties, both agreements would have been valid, and Israel could have implemented the text she prefers while incurring international responsibility towards the party whose agreement she has not implemented. But the Israel-Jordan Treaty of Peace requires that its own provisions should prevail:

"2. The Parties undertake to fulfil in good faith their obligations under this Treaty, without regard to action or inaction of any other Party and independently of any instrument inconsistent with this Treaty. ... "5. The Partners undertake not to enter into any obligation in conflict with this Treaty.

"6. Subject to Article 103 of the United Nations Charter, in the event of a conflict between the obligations of the Parties under the present Treaty and any of their other obligations, the obligations under this Treaty will be binding and implemented (Article 25)."

Thus Israel would have to abide by her obligations towards Jordan. However, fortunately there is no contradiction between the two commitments and Israel can comply with both of them.

As we have seen above, according to certain reports in the press, Jordan intends to transfer custody in the Holy Places to the Palestinians at a later stage.

Conclusions

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

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

The difficulties concerning these early provisions are but a foretaste of the diplomatic battle over Jerusalem formally to start in 1996. It may be assumed that disagreement will encompass many thorny questions, e.g., matters related to sovereignty, jurisdiction and powers, in particular in the sphere of security, transportation and access roads, town planning; Holy Places (foremost those that are holy to two or more denominations); and municipal matters such as water, sewage, roads, education, etc. There is hardly any subject which could not lead to conflict. It seems, however, that all parties concerned agree that the city should not be physically redivided.

It is submitted that in order to facilitate the negotiations, one should try to split the subject at least into three components: national aspirations, Holy Places, and municipal government. There is no doubt that these three components are interlinked and interrelated, but for practical purposes more or less separate negotiations on each of them may perhaps be advisable.

As to the Holy Places, the parties may also have to listen to and perhaps; take into consideration the aspirations and wishes of members of the relevant religions who do not live in the country.

Last but not least, the parties should try to avoid and discussions about sovereignty. Sovereignty is an abstract notion with a strong emotional appeal. People get carried away by this concept and are reluctant to compromise about it. Therefore it may be advisable to leave this notion aside, perhaps to agree on suspending sovereignty for a considerable period, or to replace unqualified sovereignty by a more subtle concept, such as functional, differential or associate sovereignty. One could also envisage different kinds of sovereignty for particular locations, including shared sovereignty. It may be helpful if in the negotiations, instead of bickering about sovereignty, the parties would emphasize the division or sharing of powers among the various neighborhoods or boroughs.

Let us remember that the concept of sovereignty has undergone great changes in the last century. The interdependence of States in the economic sphere, the free movement of people across borders, the availability of world-wide systems of communications and the development of the international protection of human rights have drastically reduced the importance of sovereignty and changed its character. In the sphere of the law of the sea the notion of functional sovereignty, i.e., sovereign rights for a specific function only, has developed. Renouncing negotiations on sovereignty would therefore seem to be in line with new trends in the international political arena.

Let us hope that the parties may find reasonable compromises, in order that Jerusalem may again live up to its biblical characterization - a city of peace.