Jerusalem - THE FUTURE OF THE HOLY PLACES by ELIHU LAUTERPACHT

THE FUTURE OF THE HOLY PLACES

It is now necessary to look forward.            We have already seen in this paper that the proposals for the territorial international­ization of Jerusalem have effectively lapsed; that the objectives which internationalization was intended to secure were, even when the Old City was in Jordanian hands, with one major exception, achieved; and that they have all been maintained under Israeli occupation. We have seen too that there is nothing illegal about Israeli presence in either the New or the Old parts of the City of Jerusalem.

But the fact remains that, regardless of who is sovereign or exercises jurisdictional control in Jerusalem and regardless, too, of the adequacy of the manner in which the City is adminis­tered and access to the Holy Places actually secured, there still exists among the nations and faiths of the world an interest in Jerusalem which thirsts for expression in some formal manner. The need for an international instrument may well be more psychological than organic, but there can be little doubt that the need is felt.

In reflecting upon the scope and content of this expression of interest, two things may be recalled: the nature of the interest and the theoretical range of modes in which it may be met.

We start with the commonplace that the Holy Places are of interest to three great religions-Christian, Moslem and Jewish. On the whole, those personally demonstrating this interest can be divided into two groups: those whose presence in the Holy Land is transient and those whose presence is permanent. In relation to the transients, what is required is acknowledgment of their right to come and go freely and to worship. For those who remain for the longer term, what is required is the freedom so to remain, to maintain themselves as part of a religious community in the manner hitherto prevailing, and to lead their lives free of unnecessary intrusion by the secular authority. In addition, the religious communities desire that their vested rights in the Holy Places should be respected; and all are concerned-though their concern is not always translated into effective common action-that the physical fabric of the

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various Holy Places should be preserved in good repair. They need too the presence of a lay authority capable of maintaining the rights of each as against the others and possibly of settling any disputes which may arise between them.

The selection of one or more devices from the wide variety of legal forms available for the reflection of international interest is a matter of political rather than legal decision. In this con­nection it is always important to bear in mind the distinction between national and international law. It is perfectly possible for the necessary guarantees of religious interests to be secured exclusively in terms of national law-the law of the local authorities. In fact, subject only to the declarations made by Jordan and Israel to the U.N. Conciliation Commission in November 1949, that is the basis on which the Holy Places have been regulated since 1948. Indeed, it is the basis on which the Holy Places were treated throughout the period of Ottoman rule; and, within the limits prescribed by the Mandate, this was also the position from 1917 to 1948.

Since the re-unification of Jerusalem in 1967, the Protection of Holy Places Law, 1967,¹ has provided that the Holy Places should be protected from desecration and any other violations and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places. Whoever desecrates or otherwise violates a Holy Place shall be liable to imprison­ment for a term of seven years.

(a)    INTERNATIONAL ASSURANCES

But it is also possible to provide some assurances about the Holy Places in terms of international law. These guarantees can vary greatly both in form and in content.

(i) FORM

As regards form, the assurances could be established either in a treaty or in a unilateral declaration.

The selection of the treaty form would immediately give rise to a question about the parties; and this in its turn would to some extent depend upon the substantive content of the treaty.

1 English text in U.N. doc. A/6793*, 12th Sept., 1967, p. 26, para. 140.

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If it were simply a general restatement of the obligations of the local secular authority in relation to the Holy Places, the treaty could be either bilateral, between Israel and the U.N., or multi­lateral, between Israel and such other States as desired to mani­fest their interest in the Holy Places.

Clearly, there would be greater difficulty about the con­clusion of a multilateral than a bilateral treaty, unless the treaty were drawn up by the U.N., and Israel and the other interested States were invited to accede. While this might be one way in which the U.N. could reassert its authority in the situation, it is questionable whether an approach along these lines would in fact achieve its stated object. Assuming that the text of the relevant instrument were to be drawn up in the General Assembly, a two-thirds majority of the Members of that body would suffice for the adoption of the text. Adoption of a text is, of course, not the same thing as making it binding upon the prospective parties. But once the text of a multilateral treaty is adopted, States, if they are to become parties, have to take it largely as it stands. Although the technique of permitting reservations may enable some States to ratify the treaty as a whole without accepting some of its more objectionable clauses, the flexibility thus introduced is limited. In these circumstances, and having regard to the strength and influence of the Arab bloc in the Assembly, especially when combined in a matter of this kind with the non-Arab Moslem States, there is the distinct possibility that the General Assembly might by a majority adopt a convention which would be unacceptable to Israel. And whether or not Israel's possibly negative attitude to such a convention might appear to all persons to be reasonable and proper would, in all the circumstances, be irrelevant. The declared object of the exercise-the adoption of a binding instru­ment regarding the Holy Places-would have been defeated. This outcome is not inevitable-but negotiation within the U.N. seems to be the most speculative of the approaches which may be considered.

Another alternative is that of the bilateral treaty. Here again there are various possibilities. One is that of a single bilateral treaty concluded between Israel and the U.N. This in fact was suggested by Israel in 1949. At that time, she proposed a text-the content of which still has considerable contemporary

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relevance and is printed for convenience of reference as Appendix I hereto. However, this approach, like that of the multilateral treaty, is also exposed (though perhaps less so) to the risk of uncontrollable marshalling of forces in the Assembly more interested in making political capital out of a frustrated negotia­tion than in securing the conclusion of a workable agreement. l

More feasible would be the conclusion of a series of bilateral agreements between Israel and each of the Parties especially interested in the Holy Places. These might include the Holy See (as representing one, but not, of course, all the Christian denominations) and Jordan. This approach would have a number of advantages. There would be scope for true negotia­tion based upon a genuine desire to reach accommodation. The special requirements of the different Parties could more easily be met. For example, to the extent that any formal recognition of Jordan's sovereign interest in the Moslem Holy Places of Jerusalem were possible, it could more readily be in­corporated into a bilateral agreement between Israel and Jordan than into a multilateral agreement. Again, the negotiation of an accord upon the status and privileges of the Christian religious communities in Jerusalem could perhaps more easily be concluded with the representatives of one denomination than with those of all denominations. Moreover, the conclusion of a series of bilateral agreements could be spaced out over a period of time, thus eliminating the need to achieve simultaneous con­sensus amongst a large number of States.

The merit of the treaty approach-whether multilateral or bilateral-is that the content of the settlement is assured upon a contractual basis. There is then no scope for unilateral with­drawal or amendment, unless specially agreed upon or otherwise permitted by the text.

Nonetheless, there remains another alternative which is not necessarily exclusive of the treaty approach, but can be used as a substitute for it over either the long or the short term. This

1 A variant of this device would be the adoption by the General Assembly of a suitably worded resolution, followed by formal acceptance thereof by Israel. As General Assembly resolutions are not normally binding, such acceptance by Israel would be necessary if it were to have any legal force. The Israeli pro­posal for the Holy Places submitted to the Trusteeship Council in May 1950 in fact suggested that a "statute" might be adopted in this way (see G.A.O.R., 5th Sess., Suppl. No. 9, p. 29, para 21 (a)). Pursuit of this method to-day might well be open to the difficulties discussed above.

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is the device of the unilateral declaration intended to create international obligations for the State making the declaration. True, such declarations are relatively rare; and their effect in international law is not free of doubt. All one can confidently say is that their legal force becomes more certain if one can show that any invitation implicit in them has been accepted by other States. Such acceptance would in effect convert the declaration from one of general force into one having con­tractual effect as between the declarant State and the State accepting the declaration.

There is one recent precedent for the making of such a declaration in relation to a matter of general interest in the Middle East. On 24th April, 1957, the Egyptian Government made a Declaration on the Suez Canal and the Arrangements for its Operation.' This began with the following statement:

"In elaboration of the principles set forth in their Memor­andum dated l8th March, 1957, the Government of the Republic of Egypt, in accordance with the Constantinople Convention of 1888 and the Charter of the United Nations, make hereby the following Declaration on the Suez Canal and the arrangements for its operation."

In paragraph 9, the Government of Egypt indicated that it would accept the jurisdiction of the International Court of Justice in disputes arising between parties to the 1888 Con­vention. The Declaration concluded thus:

"This Declaration, with the obligations therein, constitutes an international instrument and will be deposited and registered with the Secretariat of the United Nations."

As already suggested, the precise legal quality of declarations of this kind is open to debate. The text contains, especially in the last paragraph, several indications of the intention of the Government of Egypt to constitute it an "international instru­ment." Yet, when the instrument is perused as a whole, it contains little in the way of statement of obligation and much instead in the way of statement of intentions. It does not contain any suggestion that it is an invitation which other States may, by an act of acceptance, crystallize into a binding commit­ment.

1 For text, see E. Lauterpacht (ed.), The Suez Canal Settlement  (1960), p. 35.

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Equivocal though this particular text may be, it does ex­emplify one technique which could be used in the present situa­tion. Certainly, it is not beyond the bounds of juridical imagina­tion to develop a form of words which could serve unilaterally to create international obligations. From the point of view of the Government of Israel, there might be convenience in such an approach, which would permit it to demonstrate the sympathy which it undoubtedly feels for "the universal interest" in Jerusalem, while at the same time doing so in its own terms and in a manner which could not prejudice the subsequent conclusions of bilateral treaties or other arrangements.

(ii) CONTENT

We may now turn to the content of an international arrange­ment, whatever may be its form. Here three elements require consideration: substance, supervision and settlement. Their relevance is suggested by examination of earlier proposals regarding the position of the Holy Places.

(a)    SUBSTANCE

It is convenient to approach the question of substantive content without regard to the proposals for the territorial inter­nationalization of Jerusalem.            We must assume that any further suggestion for actually placing Jerusalem under a form of inter­national government, involving the administrative divorce of the City from the rest of Israel and the direct control of the City by an international authority, is completely excluded. If a system of national jurisdiction, albeit divided between Jordan and Israel, was acceptable for nineteen years, then it is difficult to see why the continuation of a system of national jurisdiction, albeit undivided, should now cease to be internationally toler­able.

However, the rejection of any suggestion of territorial internationalization does not mean that it is necessary for Israel to adopt any rigid stand on such matters as "sovereignty" over the Old City. While she has in the past claimed sovereignty over the New City, she has not as yet done so over the Old; and although there would appear, by reference to the considera­tions examined in Chapter III above, no legal reason why formal Israeli sovereignty should not be extended over the Old City,

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there is equally no compelling political reason why it should be. The subject is one on which it is not necessary that anything should be said-and silence on this topic could well be regarded as an important part of the "content" of the instrument (what­ever its form).

At one time, particularly in 1949, during the debates in the Ad Hoc Political Committee of the General Assembly on the question of Israel's admission to the U.N., the Government of Israel stated that it was not opposed to the possibility of a limited territorial internationalization of that part of the City in which there was the heaviest concentration of Holy Places. This would, of course, have excluded the New City. Whether nearly twenty years later the Israeli Government, or people, would still be of this view, is clearly a matter for considerable doubt. Nevertheless, the maintenance by Israel of a negotiating position of some flexibility prompts one to enquire whether one possible solution, at any rate in part of the Old City, would be not a territorial internationalization, but an acknowledgment of some form of Jordanian national interest in the Moslem Holy Places.

To speculate upon the form, or even the possibility, of this essentially symbolic gesture might be to raise ideas which have no hope of implementation. It may be best therefore to make no further attempts here to give precise content to this thought. Nevertheless, it might be as well to add that the considerations which prompt this suggestion in relation to the  recognition of Jordanian interests in the Old City do not necessarily move in the same way as regards other interests in the Old City. For one thing, if the gesture is thought of in terms of the flying of a Jordanian flag in the environs of the principal Moslem Holy Places, it may be recalled that the representative, for example, of the Holy See is already entitled to fly the Papal flag upon his official residence. For another, any move of this kind in relation to Jordan would partly be warranted by the fact that there is in the Old City of Jerusalem a substantial Arab population with, it may be assumed, basically Jordanian sympathies. The same consideration does not prevail in relation to any of the other parties interested in the Old City.

Once general and largely symbolic matters such as sovereignty are set aside, the substantive content of any assurance or guaran­tees regarding the Holy Places can readily be deduced from a

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number of texts which reflect the nature of the international concern for the Holy Places. The texts in question are: the Mandate for Palestine, 1922; the U.N.S.C.O.P. proposals as subsequently incorporated in the Partition Resolution of Novem­ber, 1947; the Draft Declaration concerning the Holy Places etc. outside Jerusalem, proposed by the U.N. Conciliation Commis­sion on 2nd September, 1949;¹ the Israeli and Arab Declarations made respectively on 8th and 25th November, 1949; ² the Draft Agreement between the U.N. and Israel annexed to Israel's draft resolution of 25th November, 1949; ³ the Netherlands­ Swedish draft resolution of 5th December, 1949; ⁴ the Cuban draft resolution of 6th December, 1949;⁵ certain provisions (particularly Article 33) of the draft Statute for the City of Jerusalem approved by the Trusteeship Council on 4th April, 1950; ⁶ the Israeli proposal submitted to the Trusteeship Council on 26th May, 1950; 7 and the Swedish draft resolution of 5th December, 1950. 8

These texts are clearly of much more value in dealing with the specific detail of the Holy Places in the Holy Land than are such important, but nonetheless general, unrelated and there­fore less pertinent precedents, like the Conciliation Treaty and the Concordat concluded on 11 th February, 1929, between the Holy See and Italy. ⁹

With some variation in wording, these texts, in one way or another, provide for respect for the Holy Places; the maintenance of the vested rights of the various denominations; freedom of access to and worship at the Holy Places; and exemption of the Holy Places from taxation. The expansion of these basic con­cepts into acceptable form in any text on which general political

1 G.A.O.R., 4th Session, Annexes, Agenda Item 18, p. 30.

2 'Ibid., p. 31.

³lbid., p. 46 (A/AC.31/L.42).

4 Ibid., p. 60 (A/AC.31/L.53).

5 Ibid., p. 62 (A/AC.31/L.57).

8 Trusteeship Council Resolution 232 (VI).

7 G.A.O.R., 5th Sess., Suppl. No. 9, p. 29, at p. 32.

8 G.A.O.R., 5th Sess., Annexes, Agenda Item 20, p. 1 (A/AC.38(L.63).

9 For English translation, see Royal Institute of International Affairs, Documents on International Affairs, 1929, pp. 216 and 227.

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agreement could be reached would not appear to be a matter of any special difficulty.1

(b) SUPERVISION

The provisions dealing with supervision and with settle­ment of differences, although they have a slightly more complex history, should not give rise to greater difficulties.

When in November 1949 the U.N. Conciliation Commission requested the Arab Governments and the Government of Israel to give formal guarantees concerning the Holy Places, the Governments were invited to subscribe to a draft declaration on the subject which the Commission had prepared. ² The draft after referring to the main substantive headings (mentioned in the preceding section) proposed that (a) the implementation of its provisions should be under the supervision of a U.N. Com­missioner and (b) disputes regarding the interpretation of the Declaration should be settled by the Tribunal which was con­templated in the Instrument then under consideration for the establishment of a permanent international regime for the Jerusalem area and, pending the setting up of this tribunal, should be reported to the Secretary-General of the U.N. for reference to the appropriate organ of the U.N.

Both Israel and the Arab States gave undertakings regarding the substantive matters in the Declaration. In their reply the Arab Governments adopted the wording of the substantive articles, but completely omitted, without any explanation or comment, the articles dealing with supervision and settlement of differences. The Israeli reply, while similarly limiting itself to acceptance of the substantive provisions, explained that, in view of the pending discussion of the subject in the General Assembly, it would be better to take up the actual formulation of the Declaration "in the light of the situation soon to be clarified."

However, when the Government of Israel commented in detail upon the Conciliation Commission's own draft instrument

1 It may be noted in passing that none of the texts has shown any particular concern with the position of the religious communities as a matter distinct from the status of and access to the Holy Places. Thus, not every religious interest is likely to be reflected in the instrument of assurance.

2 G.A.D.R., 4th Session, Annexes, Agenda Item 18, p. 30 (A/1113).

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establishing a permanent regime for the Jerusalem area, l i.e. for the implementation of the idea of territorial internationaliza­tion, it made the following remarks:

"Articles 15 to 20 describe the responsibility of the United Nations Commissioner for the protection of Holy Places, religious buildings and sites. It is noticeable that those articles are completely self-sufficient and are not related to any of the other provisions of the instrument. Their implementation in no sense requires the exercise by a United Nations commissioner of full and permanent authority, or the operation of his organs and courts in any secular field.            This fact is in itself clear and convincing proof that the exercise of United Nations responsi­bility for the safeguarding of Holy Places can be implemented without any of the administrative or judicial intrusions envisaged by the Commission in the secular life of Jerusalem. Neither the permanent Commissioner nor the General Council, nor the International and Mixed Tribunals, nor demilitarization, are in the slightest degree essential to the protection under international auspices of Holy Places and sites.” 2

Admittedly, these comments were made in the context of a much further reaching set of proposals than it may be hoped will again be considered in this context by the General Assembly. The comments indicate quite clearly that whatever external organ may be responsible for supervision, it should be concerned with that task only, and not with the performance of any role in the ordinary administrative life of the City. As the Israeli comments suggest a few lines later, "the supervision of the agreement on behalf of the United Nations should be the concern of a rep­resentative, and not of a commissioner endowed with executive powers." ³

In all subsequent proposals for "functional" as opposed to "territorial" internationalization, provision is made for a U.N. representative or commissioner, whose functions were, in the Israeli proposals of 25th November, 1949, to be limited to the "exercise (of) the rights and duties conferred upon the United Nations." 4  The Netherlands-Swedish draft of December 1949

1 Ibid., p. 10 (A/973).

2 Ibid., p. 42 (A/AC.31/L.34, para. 65).

3 Ibid., para. 66.

4 Ibid., p. 46 (A/AC.31/L.42, Annex).

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proposed a Commissioner with supervisory functions and very limited executive powers.1 A similar suggestion was made in the Cuban draft Statute of 6th December, 1949.² In the pro­posals made in May 1950¹ the Israeli Government proposed the appointment of a U.N. representative who

“should constitute an independent authority deriving its powers solely and exclusively from the General Assembly itself and exercising these functions in the international right without dependence on any individual government or accreditation there­to.”

However, there may have been some subsequent stiffening of the Israeli position in this connection, and it should not there­fore be assumed that there would be no difficulty from the Israeli point of view in accepting the appointment of a U.N. Com­missioner or representative with the function of supervising the rights of access to and worship at the Holy Places, and with power to request the Israeli Government to suspend any laws or acts which impair the exercise of those rights and to call upon the religious denominations to keep the Holy Places in repair.

(c) DISPUTES

The disputes for the settlement of which it is desirable that provision should be made in any future arrangements fall into two categories:

First, there are those disputes which can arise between the various religious denominations themselves about the enjoy­ment of their respective rights in the various Holy Places. As the following summary taken from Chapter 3 of the U.N.S.C.O.P. Report shows, these disputes can be complex and have in the past given rise to major international controversy. It also shows that, with one exception, the decisions in this class of case have been taken by the local secular authority.

"6. In the absence of the special commission for which article 14 of the Mandate provided, the responsibility of settling difficulties and disputes connected with existing rights devolved entirely upon the Government. The Palestine (Holy Places) Order in Council of 1924 withdrew from the law courts of

1 Ibid., p. 60 (A/AC.31/L.53).

2 A/AC.31/L.57, Arts 7 and 8.

3 G.A.O.R., 5th Sess., Suppl. No. 9, p. 29, at p. 33.

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Palestine any `cause or matter in connection with the Holy Places or religious buildings or sites in Palestine or the rights or claims relating to the different religious communities of Palestine.' Jurisdiction was vested in the High Commissioner, whose decisions were `final and binding on all parties.'

"7.  The claims in connection with the Holy Places, religious buildings or sites, or religious communities have been determined by the mandatory Government on the basis of rights and practice

existing during the Ottoman regime. When the Government's decision has not been accepted, a formal protest has been made by the interested community and it has been recorded that no change in the status quo was held to have occurred.

"8. As regards the Christian Holy Places, century-long controversies between Powers sponsoring the respective Roman Catholic and Greek Orthodox interests were settled on the basis

of the status quo at the end of the Crimean War; but they were not settled between the religious communities themselves. The report of the international commission appointed by the British Government, with the approval of the Council of the League of Nations, to determine the rights and claims of Moslems and Jews in connection with the Wailing Wall l summarises as follows the history of the establishment of the status quo and its present application as regards the Christian Holy Places:

"At the conclusion of peace (in 1855, after the Crimean War) the matters in dispute being still left undecided were sub­mitted to the signatory Powers, who undertook to guarantee

in every respect the status quo ante belhrm.            The question of the protection of the Holy Places was again discussed during the peace negotiations at the conclusion of the Russo-Turkish War (1878). At that time it was laid down in the Peace Treaty itself that no alterations were to be made in the status quo without the consent of the signatory Powers. In 1878 as well as in 1855 indications as to the administration of the status quo were based upon the same rules as those that had been proclaimed in the decree (firman) issued by the Sultan of Turkey in 1852, which were in conformity in the main with a preceding frrman of 1757 . .

1 “Report of the Commission appointed by His Majesty's Government in the United Kingdom of Great Britain and Northern Ireland, with the approval of the Council of the League of Nations, to determine the rights and claims of Moslems and Jews in connection with the Western or Wailing Wall at Jerusalem: December, 1930.” (London, 1931), p. 34. (The Commission was constituted as follows: M. E. Lofgren (Sweden), M. Charles Barde (Switzerland), M. C. J. van Kempen (Netherlands).) Reproduced as U.N. doc. S/8427/Add.l *, 28th Feb., 1968.

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"As apportioned between the three principal Christian rites, viz., the Orthodox Greek Rite, the Latin (or Roman Catholic) Rite and the Armenian Orthodox Rite, the Holy Places and their component parts may be classified into the following categories:

(a) Certain parts which are recognised as property common to the three rites in equal shares.

(b) Other parts as to which one rite claims exclusive jurisdiction, while other rites claim joint proprietorship.

(c) Parts as to which the ownership is in dispute between two of the rites.

(d) Finally, parts the use or ownership of which belongs exclusively to one rite, but within which other rites are entitled to sense or carry out ritual services up to a limited extent in other ways.

"Certain strict principles are adhered to in the administration of the status quo. Thus, . . . a right granted to hang up a lamp or a picture or to change the position of any such object when hung is regarded as a recognition of exclusive possession of the pillar or the wall in question ...

"It is easy to understand that the application of `rights' of this nature must lead to great difficulties and often to litiga­tion, especially as each alteration de facto in the prevailing practice might serve as a proof that the legal position has been altered. Therefore, the Administration has had a difficult task both in ascertaining and in maintaining  the status quo. In con­troverted cases the objects in dispute have been sometimes allowed to fall into decay rather than risk the possibility that any alteration of the balance of power between the contestant rites should be permitted to ensue. Hence, if the carrying out of repairs becomes urgent, it devolves upon the Administration to have them attended to, supposing it proves not to be possible in the individual case for the parties concerned to come to an amicable agreement.'

"9. The status quo-as far as it has been possible to ascer­tain what that consists in-has also been applied by the Palestine Administration as regards Moslem or Jewish sacred places and sites, which have been objects of dispute between Arabs and Jews, particularly the Wailing Wall at Jerusalem and Rachel's Tomb near Bethlehem.

"10. It must be noted that in disputes between the Christian communities, as well as between the Moslem and Jewish com­munities the Mandatory Administration like its predecessor, the

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Ottoman Government, possessed the police forces necessary to impose its decisions and generally to prevent religious disputes from resulting in religious strife."'

The generality of the Israeli rejection of the Conciliation Commission's proposals that a U.N. Commissioner be competent in such cases 2 could be read as amounting to an assertion that Israeli courts should have jurisdiction to settle such disputes. There is, however, some evidence of a modification of this view in the terms of the Israeli proposal of 25th November, 1949 3 which, while providing that such disputes should in the first place be referred to the Government of Israel, contemplates that if the issue is not thereby settled it can be referred to the General Assembly.

Israel appears to have had further thoughts on this question, prompted perhaps by the suggestion in the Netherlands-Swedish draft ⁴ that this class of dispute should be settled by a U.N. Commissioner. The Israeli memorandum to the Trusteeship Council of 26th May, 1950,¹ commenting on the draft Statute for Jerusalem prepared by the Trusteeship Council, puts forward an alternative proposal which suggests that a U.N. representative should, inter alia, adjudicate upon disputes between communities as to their rights in the Holy Places.

While it is possible that Israel might no longer feel that it would be right to vest this class of jurisdiction in the U.N., one can still see reasons why Israel should not herself become in­volved in disputes arising between the various religious de­nominations. In so far as they arise between non-Jewish groups, it may be better that they should not be decided by Jewish authorities; and in so far as they affect relations between Jewish and non-Jewish interests, there may again be advantage in having them decided by a non-Israeli body.

The second category of foreseeable disputes comprises those which may arise out of the interpretation and application of the instrument containing the regime for the Holy Places. Such disputes would arise primarily between the State of Israel, on the one hand, and the U.N. or some particular State on the

1 G.A.O.R., 2nd Sess., Supp. No. 11, pp. 36-37.

2 See p. 63 above.

3 Section 19. See Appendix 1 at p. 79 below

4 Loc. cit. p. 61 n. 4 above.

5 G.A.O.R., 5th Sess., Suppl. No. 9, p. 29.

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other; and would involve the application not of local, but of international, law. In general terms, in common with all other international disputes, it is desirable that such cases should be settled by international judicial means. This may involve either reference to the International Court of Justice or the establish­ment of a special arbitral body. But in the absence of any evidence of willingness by any Arab State to accept compulsory international settlement of disputes, it is not easy to make out a convincing case to persuade Israel to agree to expose herself in this way to international judicial or arbitral proceedings. If the obligatory jurisdiction of an international tribunal were in fact accepted by Israel, it would in all likelihood have to be made conditional upon strict reciprocity.

(b) A POSSIBLE DECLARATION AND STATUTE CONCERNING THE HOLY    PLACES

Since it is commonly found that general ideas can more readily be assessed when presented in a specific form, 1 have ventured to prepare a somewhat tentative draft of the sort of Declaration and Statute which might give effect to some of the ideas canvassed in this Chapter.

INTRODUCTION TO THE DRAFT DECLARATION AND STATUTE

CONCERNING THE HOLY PLACES

There are two ideas underlying this draft Declaration and Statute.

First, there should exist some instrument setting out in detail the status of the Holy Places in Jerusalem I and the special rights and privileges of the religious communities actively assoc­iated with them. This is the function of the draft Statute.

Second, this instrument should be given some international status, both so that its provisions may stand as international commitments of Israel and so that Israel may reciprocally expect that other States will not act in a manner prejudicial to the terms of the Declaration or seek to overthrow the situation under­lying it. This is the function of the draft Declaration.

1 The ideas elaborated here are restricted to the Holy Places in Jerusalem. Shrines elsewhere in Israel have a different background. Moreover, any geographical extension of these proposals would necessarily raise difficult questions regarding Jewish shrines in Arab territory outside Jerusalem.

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It is contemplated that the Statute would need to be in­corporated into the law of Israel by legislation.

The reasons which support this form of approach have already been indicated. The principal alternative would have been some sort of international treaty formally embodying the results of an international negotiation. Clearly, there would be consider­able difficulties about determining which States and other interested bodies should participate in this negotiation. Further, formal discussions on the international level would certainly be much prolonged.            Accordingly, since the Government of Israel has already been able to discuss matters in some detail with some of the principal interested parties, it appears simpler that the settlement should be incorporated in a unilateral offer by Israel to regulate her conduct and the treatment of the Holy Places on a basis which she already understands to be largely acceptable to those most immediately connected with the prob­lem.

At the same time, in recognition of international interest in the problem, Israel would in effect offer the States of the world the opportunity to become parties to the settlement and to take advantage, on a basis of reciprocity, of the procedure for the judicial enquiry set out in the Declaration.

However, it should be appreciated that, although for inter­national purposes the Statute is appended to the Declaration, the Statute is nonetheless independent of the Declaration. The Statute would govern Israel's treatment of the Holy Places regardless of whether the States of the world were prepared to signify their approval of the principles therein stated and irres­pective of whether such States might desire to take advantage of the opportunity of invoking the jurisdiction of the International Court of Justice.

DRAFT DECLARATION ACCOMPANYING THE STATUTE

0. The Government of Israel has promulgated a Statute for the Holy Places in Jerusalem the text of which is appended to and forms part of the present Declaration.

1 The text of the Declaration and the Statute would be communicated to the Secretary-General of the United Nations. See para. 4 of the text of the Declara­tion.

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2. The present Declaration constitutes an international undertaking by the Government of Israel to act in conformity with the Statute. This undertaking will be effective as between Israel and those States which indicate their acceptance of the Statute and themselves undertake neither to act, nor to permit on their territories any action, l contrary to the letter and intent of the Statute.

3. The Government of Israel accepts the jurisdiction of the International Court of Justice in relation to any dispute which may arise between any State accepting the Statute and Israel, subject only to such State having declared that it reciprocally accepts the jurisdiction of the International Court of Justice in relation to its obligations under paragraph 2 above.2

4. The present Declaration will be registered with the Secretariat of the United Nations pursuant to Article 102 of the Charter of the United Nations.

DRAFT STATUTE. CONCERNING THE HOLY PLACES

1. The present Statute relates to the Holy Places in Jerusalem.

2. For the purpose of this Statute

"Commissioner" shall mean the Commissioner of Holy Places appointed pursuant to Article 7 hereof.

"Community" shall include any religious body, brother­hood, order or organization with an established interest in the Holy Places.

"Council" shall mean the Council of the Holy Places es­tablished pursuant to Article 8 hereof.

"The Holy Places" are those buildings, sites, structures and localities listed in Column 1 of the Schedule to this Statute

1 It seems reasonable that, at any rate in relation to the Arab States which have been making war upon Israel, Israel should ask for a reciprocal undertaking that such States will not allow their territories to be used as a basis for the preparation of acts designed to overthrow the system underlying the Statute. At the same time, it is possible that other States, having no real connection with the Arab attacks upon Israel, might find it difficult to incorporate this undertaking in their municipal law. It may, therefore, be necessary to reconsider the formulation of this provision.

2 For the reasons set out above, this is a provision which Israel might not find it easy to include.

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traditionally subject to the jurisdiction of the religion, order, or body listed in Column 2 of the said Schedule. 1

The Minister of Religious Affairs of the State of Israel shall have the power to amend the Schedule by adding to or removing from it the name of any Holy Place or by modifying

the description of the body to whose jurisdiction the place is deemed to be subject, but the Minister shall not remove the name of any Holy Place save after a determination in that sense by the Commissioner of Holy Places, and the Minister shall not modify the description of the body to whose jurisdiction a Holy Place is deemed to be subject without either the consent of the body to whose jurisdiction the Holy Place was theretofore deemed to be subject or an appropriate determination by the Commissioner of Holy Places.

FREEDOM OF ACCESS TO THG HOLY PLACES IN JERUSALEM

4. (1)            There shall be freedom of access to the Holy Places in Jerusalem for all persons without discrimination as to faith, nationality, race or colour.

    (2) The Government of Israel will ensure that there shall be free and ready movement by available and convenient routes of transport to and from Jerusalem from and to stated points of arrival in and departure from Israel.

    (3) Persons entering Israel for the sole purpose of visiting the Holy Places may do so without visa for periods not exceeding twenty-one days. Persons intending to visit other places or to remain in Israel for longer than twenty-one days shall satisfy the entrance requirements normally applicable to visitors to Israel.

    (4) All visitors to Israel, whether to the Holy Places exclusively or to other places in Israel, are at all times subject to the operation of the laws of Israel, as modified by the terms of this Statute.

    (5) The Government of Israel reserves the right to exclude entirely or limit the period of visit of any person claiming to visit the Holy Places if the Government of Israel believes that

1 This Schedule, which is not appended to the present Draft, should be sufficiently detailed so as to avoid, or at any rate limit, dispute as to the places which benefit from the Statute.

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the visit of any such person is or may be prejudicial to the security of the State of Israel, or if the entry of such person into Israel would be contrary to existing Israeli health  regulations. Any person thus excluded may require the Government of Israel to state its reasons to the Commissioner for the Holy Places.

(6) It shall be no excuse or justification in law for a person found in Israel without having satisfied the formal entry requirements to claim that he was visiting or intending to visit the Holy Places.

THE HOLY PLACES

5. (1)            There shall be complete freedom of attendance at and worship in the Holy Places.

    (2)            No form of racial or religious discrimination shall be permitted with respect to the rights of visit and access to any of the Holy Places, except in so far as the performance of certain religious rites and ceremonies may require the exclusion from them of the adherents of other faiths during the performance of such religious rites and ceremonies.

    (3)            The Holy Places in Israel shall remain in the custody and subject to the jurisdiction of the communities who by law and custom have exercised rights in and over them. The rights and interests of all communities in the Holy Places in Israel shall be as they were on the 14th May, 1948, subject only to such agreed or otherwise lawful changes as may since have taken place.

    (4) Any dispute between the communities as to rights in or over the Holy Places shall be determined by the Com­missioner for the Holy Places [or some other special jurisdiction]' upon hearing all interested parties and after receiving the advice of the Council for the Holy Places. Any decision of the Com­missioner in this regard shall be recognised as valid and binding under the law of Israel and shall be enforceable by process in the civil courts of Israel.

    (5) The organization of and the conduct of services in the Holy Places shall be regulated exclusively by the personnel of the community or communities exercising rights in and over the Holy Place.

1 See above, p. 67.

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(6) Any fees charged or payments required for access to the Holy Places shall not exceed those which have in the past been customary; and questions arising in this connection shall be determined by the Commissioner upon the advice of the Council.

(7) Any act or omission occurring in a Holy Place which would if it had occurred outside a Holy Place constitute a civil or criminal wrong under the law of Israel shall fall within the jurisdiction of the Israeli courts applying the law of Israel.

(8) The Israeli public authorities, whether police or other, will not enter the Holy Places save with the consent or at the invitation of the head or acting head of the community in charge of such Holy Place. Such consent shall not be necessary in circumstances of emergency, that is to say, the occurrence of violent crime, riot, civil commotion, fire or other comparable event, or the reasonable anticipation thereof.

(9)            The income and receipts of the communities con­trolling the Holy Places shall not be subject to income tax in Israel.

(10) The Holy Places and premises occupied in con­nection with the Holy Places shall not be assessed to rates save in respect of the provision of police protection and fire or sanitary services.

(11) The communities responsible for the Holy Places shall pay reasonable and non-discriminatory rates for all other municipal services.

THE PERSONNEL OF THE HOLY PLACES

6. (1)            The organization of the communities having rights in the Holy Places shall be governed exclusively by the rules of each such community.

    (2) Whoever by the rules of each such community is its head in the Holy Places in the territory of Israel or the occupied areas shall serve as the representative of that community in the Council of the Holy Places.

    (3) The communities shall have exclusive jurisdiction over their personnel in all matters which are traditionally the subject of regulation by the rules of the communities. In all other respects the law of Israel shall be applied. Any question

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arising as to which body of law is applicable shall be determined by the Commissioner, whose certificate in the matter shall be accepted as final and conclusive.

(4) The freedom of dress and habit of the personnel of the communities is guaranteed as heretofore, as is their move­ment throughout Israel and in particular from one Holy Place under their charge to another.

(5) There shall be freedom of communication between the communities and their parent organizations outside Israel.

THE COMMISSIONER OF THE HOLY PLACES

7. (1) There shall be a Commissioner of Holy Places (hereinafter called the Commissioner) with the following functions

(i) To exercise a general supervision over the application of the present

     Statute;

(ii) To preside over the Council;

(iii) To represent the Council;

(iv) To report annually to the Secretary-General of the United Nations;

 (v) To make such representations or proposals as he may at any time think

      necessary or desirable to the Government of Israel, or to the Council,

      with a view to ensuring the fullest achievement of the objects of this

      Statute.

(vi) Generally, to perform any other functions con­ferred upon him by the

       present Statute.

(2) The Commissioner shall be appointed by the Secretary-General of the United Nations and shall be paid by the United Nations. The assumption of his duties by the Com­missioner shall be subject to the agreement of the Government of Israel. If this is withheld, the Secretary-General shall make another appointment.

(3) The Commissioner shall hold office for a period of three years from the date of his appointment. Subject to the continuing agreement of the Government of Israel, the Com­missioner may be re-appointed for a further period or periods.

(4) The Commissioner shall enjoy while in Israel or in territories under Israeli control or occupation the same privileges and immunities as are accorded to the head of a foreign diplomatic mission accredited to the President of Israel.

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(5) The Government of Israel will accord to the Com­missioner all facilities that he may require for the due discharge of his functions.

THE COUNCIL OF THE HOLY PLACES

8. (1) There shall be a Council of the Holy Places con­sisting of the heads of the communities interested in the Holy Places.

    (2) The Council shall perform the functions placed upon it by the present Statute, and shall serve as the organ for the representation to the Commissioner of the collective views of the religious communities interested in the Holy Places. Each community shall however remain entitled to present its views on any matter affecting it directly to the Commissioner or to the Israeli authorities.

    (3) Communications on municipal matters shall take place between the religious communities and the local municipal authorities. On all other matters the communities shall com­municate with the Israeli Ministry of Religious Affairs.

CONSIDERATIONS OF SECURITY

9. The provisions of this Statute are subject to the interests of the security of Israel and, in particular, so long as the United Arab Republic, Syria, Lebanon, Jordan, Iraq or any other State maintains with Israel a state of war or belligerency, whether or not accompanied by hostilities; and the State of Israel shall be entitled for such security purposes within limits dictated by the exigencies of the circumstances to restrict the liberties herein guaranteed. The Commissioner shall hear any complaints which any community may make in this connection and may, if he thinks fit, refer the same to the Government of Israel.

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