ELIHU LAUTERPACHT JERUSALEM and the HOLY PLACES

ELIHU LAUTERPACHT

JERUSALEM
 and the
HOLY PLACES

THE ANGLO-ISRAEL ASSOCIATION

FOREWORD

This pamphlet has been specially written for the Anglo-­Israel Association by Mr. Elihu Lauterpacht, who like his late distinguished father, is an international lawyer who lectures on the subject at Cambridge. Hitherto we have published lectures attended by our Members, or reports written by Wyndham Deedes Scholars after visiting Israel to study a specific project. While continuing with these regular pamphlets, we hope to treat a number of outstanding problems, which affect Israel's future, by specially commissioned studies.            This is the first such study; though in March we published another pamph­let on a quite different aspect of Jerusalem, namely `Jerusalem -a New Era for a Capital City,' by Richard Westmacott, a professional landscape architect and Wyndham Deedes Scholar.

Mr. Lauterpacht's approach is partly legal and partly historical. It contains much useful source material for scholars, politicians and civil servants, especially those serving in the United Nations.His argument is closely reasoned and includes a detailed analysis of the various proposals which have been made for the `internationalization of Jerusalem.’

There is a pressing need for precise thinking on many of Israel's post-Six Day War problems. This pamphlet makes one man's contribution towards the expression of such thinking,

and in that spirit we are pleased to offer it to our members and we hope to a much wider public.

KENNETH LINDSAY,

Director. 

_____________________  

Further copies of this pamphlet may be obtained at10s. post free. Details of earlier pamphlets in this series are to be _.round on page 87. All obtainable from the Secretary, Anglo-­Israel Association, 83 Wimpole Street, London, W.1.

ANGLO-ISRAEL ASSOCIATION

PAMPHLET No. 19

ELIHU LAUTERPACHT

Fellow of Trinity College, Cambridge
 and
Lecturer in Law in the University of Cambridge

JERUSALEM
and the
HOLY PLACES

PUBLISHED BY THE ANGLO-ISRAEL ASSOCIATION83 WIMPOLE STREET, LONDON, W.1.

OCTOBER 1968

CONTENTS

C CHAPTER I. JERUSALEM AND THE HOLY PLACES: TWO
 DISTINCT MATTERS                 ...                 ...                 ...                 ...                 ...                                                5

CHAPTER II. THE ROLE OF THE UNITED NATIONS                   13

(a)   Legal History of Palestine to 1947                         13
(b)  In 1947                                   14

(c)  Effect of the Partition Resolution
(d)      Developments subsequent to the Partition Resolution      21

(i) Rejection by the Arabs of the Political Frame

    work for internationalization                                        21
(ii) Gradual Exhaustion of U.N. Interest in Inter-­
     nationalization                                                            23
     1948-1952: U.N. discussion                                        24
     1952-1967: U.N. inaction                                         33
     1967: General Assembly Resolutions ...                    33
     1968: Security Council Resolution                              35

    (e) Conclusions ……………………………………………………36

CHACHAPTER III. The law and Jerusalem.                                                        37
(a) The New City         ...         ...                        37
(b) The Old City         ...         ...                        46
     (i) Jordan's Position Prior to June 1967                    46
    (ii) Israel's Position since June 1967         ...               47

Chapter iv. The future of the holy places                                                                               54
   (a) International Assurances                                                            55
      (i) Form                                                          55
      (ii) Content: Substance-Supervision-Disputes                                             59
   (b) A Possible Declaration and Statute:                                                           68
       Introduction-Draft Declaration-Draft Statute                                       68

Appendices

1. Draft Agreement between U.N. and Israel, 1949...                   76
2. Swedish Draft Resolution, 1950  ...          ...          ...                 80
3. United Kingdom, United States of America and
    Uruguay: Amendment to Swedish Draft Resolution,
    1950 ...                                                                                 84

LIST OF ABBREVIATIONS

G.A.O.R.                                ...                                ...                                Official Records of the General Assembly.

Israel and the U.N.             ...             ISRAEL AND THE UNITED NATIONS, a Report of a Study Group set up by the Hebrew University of Jerusalem, prepared for the Carnegie Endowment of International Peace (1956).

S.C.O.R.                                ...                                ...                                Official Records of the Security Council.

T.C.O.R.                                ...                                ...                                Official Records of the Trusteeship Council.

U.N.           ...                   ...                   ...                   United Nations.

U.N.S.C.O.P.                                ... United Nations Special Committee on

Palestine.

U.N.T.S.                                ...                                ... United Nations Treaty Series.

Y.B.U.N.                                ...                                ... Year Book of the United Nations. 

CHAPTER I

JERUSALEM AND THE HOLY PLACES:

TWO DISTINCT MATTERS

It is generally assumed that in any peace settlement in the Middle East the solution of the question of Jerusalem and the Holy Places will play a significant part. To a large extent this is no doubt true-if only because Jerusalem is at the physical centre of the conflict and because the tension surrounding it is symbolic of the division between Israel and her neighbours. At the same time it is important that the problems of Jerusalem and the Holy Places should not be allowed to assume dimensions which will render their solution-whether on a multilateral, bi­lateral or unilateral basis-any more difficult than their intrinsic characteristics require.

Perhaps the very title of this paper by linking Jerusalem and the Holy Places tends to promote the confusion which affects the topic. For in truth there exist two quite distinct problems-the question of the Holy Places and the question of Jerusalem. They are brought together in people's minds because the majority of the Holy Places in the territory of what used to be Palestine happen to be situate in Jerusalem'.

It would be an oversimplification to say that, for the Jews at any rate, concern for Jerusalem is exclusively a consequence of the accumulation there of Holy Places.For them, the City as such has assumed over the ages a dominant significance in their thought which, though fundamentally associated with the

________________

'The following is a list of Holy Places compiled by the United Nations in 1949.
It covers only the Holy Places in and around Jerusalem, but not elsewhere.

It does not include, for example, the Holy Places associated with the residence of Jesus at Nazareth.

Christian-1. Basilica of the Holy Sepulchre (inclusive I to IX Stations of the Cross) 2.  Bethany  3. Cenacle  4.  Church of St. Anne 5.  Church of St. James the Great  6. Church of St. Mark  7. Deir al Sultan 8.  Tomb of the Virgin and Gardens of Gethsemane 9.  House of Caiphas and Prison of Christ 10. Sanctuary of the Ascension and Mount of Olives  11. Pool of Bethesda                12. Ain Karim 13. Basilica of the Nativity, Bethlehem 14.  Milk Grotto,  Bethlehem 15.  Shepherds Field, Bethlehem; Moslem-16.  Tomb of Lazarus  17. El Burak esh-Sharif  18. Haram esh-sharif (Mosque of Omar and Mosque of Aksa)  19. Mosque of the Ascension  20. Tomb of David (Nebi Daoud); Jewish-21.  Tomb

of Absalom  22. Ancient and Modern Synagogues   23.  Bath of Rabbi Ishmael  24. Brook Siloam  25. Cemetery on Mount of Olives  26. Tomb of David               27. Tomb of Simon the Just  28. Tomb of Zachariah and other tombs in Kidron Valley   29. Wailing Wall 30. Rachel's Tomb.

5 

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relics there of the Temple, exists now virtually independently of its origins'.

Not only are the two problems separate; they are also quite distinct in nature from one another. So far as the Holy Places are concerned, the question is for the most part one of assuring respect for the existing interests of the three religions and of providing the necessary guarantees of freedom of access, worship, and religious administration. Questions of this nature are only marginally in issue between Israel and her neighbours and their solution should not complicate the peace negotiations.

As far as the City of Jerusalem itself is concerned, the question is one of establishing an effective administration of the City which can protect the rights of the various elements of its permanent population-Christian, Arab and Jewish-and ensure the governmental stability and physical security which are essential requirements for the city of the Holy Places.

There is no inherent need to confuse the two matters. Throughout the period immediately prior to the ending of the mandate in Palestine in 1948 they were approached separately. Such association as there may have been between them was the understandable consequence of the fact that in the Middle Ages wars were fought largely for religious reasons. The object of the Crusader seizure of Jerusalem was the protection of the Christian Holy Places. Comparable motives underlay the Arab re-conquest. Thus, Jerusalem and the Holy Places were thought of together.

During the four centuries from 1517 to 1917, however, Jerusalem was under the exclusive control of the Ottoman Empire. Though not an entirely satisfactory solution for either Christians or Jews, the fact remains that for four hundred years a united City was governed by a single sovereign in a manner which by and large permitted adequate pursuit of the three dominant religious faiths. Again, during the period from 1917 to 1947 when Jerusalem was under British control, first as occupants of the City during and immediately after the First World War and then as administering authorities under the League of Nations mandate granted in 1922, a single sovereign was responsible for the government of the City.

'See Israel and the U.N, p. 130.

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Nothing was said in the Mandate about the internationaliza­tion of Jerusalem. Indeed Jerusalem as such is not mentioned ­though the Holy Places are. And this in itself is a fact of relevance now. For it shows that in 1922 there was no inclination to identify the question of the Holy Places with that of the inter­nationalization of Jerusalem.

So in Article 13 of the Mandate we find that all responsi­bility "in connection with the Holy Places and religious buildings or sites in Palestine, including that of preserving existing rights and of preserving access to the Holy Places, religious buildings and sites and the free exercise of worship" is placed upon the Mandatory which in its turn "shall be responsible solely to the League of Nations in all matters connected herewith."

Upon the powers of the Mandatory in this regard one important limitation was placed:

"nothing in this Mandate shall be construed as conferring upon the Mandatory authority to interfere with the fabric or the management of purely Moslem sacred shrines, the immunities of which are guaranteed.”

Article 14 required the Mandatory to appoint a special Commission to study, define and determine the rights and claims in connection with the Holy Places and the rights and claims relating to the different religious communities in Palestine.            The composition and functions of the Commission were to be approved by the Council of the League.

By Article 15, the Mandatory was required to "see that complete freedom of conscience and the free exercise of all forms of worship, subject only to the maintenance of public order and morals, are ensured to all."

The Mandatory was, further, made

 “responsible for exercising such supervision over religious or eleemosynary bodies of all faiths in Palestine as may be required for the maintenance of public order and good government. Subject to such supervision, no measures shall be taken in Palestine to obstruct or interfere with the enterprise of such bodies or to discriminate against any representative or member of them on the ground of his religion or nationality." (Art. 16).

The scheme thus established worked reasonably well in practice, even though no agreement on the appointment of the Commission called for by Article 14 of the Mandate could be reached until 1930.

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Two features of the position during the period of the Mandate' may be noted: first, there was no suggestion that questions connected with the Holy Places could any the better be resolved in an internationalized city of Jerusalem; and, second, no distinction was drawn between the Holy Places in Jerusalem and those elsewhere in Palestine.

There was, therefore, a distinct element of novelty in the formal identification in 1947 of the questions of Jerusalem and the Holy Places in the shape of the proposal for the inter­nationalization of Jerusalem2. This was introduced as one of the four components of the solution of the Palestine problem adopted by the General Assembly in 1947. The other three were the creation of an Arab State, the creation of a Jewish State and the establishment of an economic union between the two.

Though it cannot be said that in 1947 the idea of inter­nationalizing Jerusalem was wholly unreasonable, at best it was highly speculative. There were international precedents. There had been an international regime in Tangier since 1906. Danzig had been under the control of the League of Nations from 1920 to 1939. The Saar had been ruled by an international com­mission from 1920 to 1934. The Allied powers were even then thinking about the internationalization of Trieste. But there had been no experience-other than that of the Saar-of a prolonged and successful international administration. More­over, in the particular case of Jerusalem both the Jews and the Arabs were opposed to it-a lack of popular support which had neither characterised nor been politically relevant to the previous cases. The Jewish authorities were prepared in 1947 to waive their opposition to the internationalization of Jerusalem as part of an overall settlement of the Palestine problem. The Arabs-being opposed to any solution in Palestine other than by way of an acknowledgment of an independent state of Palestine to be ruled by Arabs-as much denied the U.N. the right to internationalize Jerusalem as they denied it the right to partition the country.

1 For a summary of some aspects of this, see below, p.p. 64-67

2 The prospect of the partition of Palestine, involving the exclusion of Jerusalem from the Jewish state, had however, been a feature of discussions on the future of Palestine since the Royal Commission's Report of 1937. See Israel and the U.N, p. 130.

8

Some reflection of U.N. realization of the uncertainty of the future-and with it some appreciation of the ultimate sever­ability of the political control of Jerusalem from the protection of the Holy Places-is to be found in those provisions of the Partition Resolution which referred to the duration of the special regime for the City. The regime was to remain in force in the first instance for a period of ten years from lst October, 1948. In 1958 the Trusteeship Council was to re-examine the whole scheme in the light of the experience acquired with its functioning. At that time the residents of the City were to be free to express by means of a referendum their wishes as to possible modifi­cations.

Now, not ten, but twenty years have passed since the General Assembly sought to fuse the questions of Jerusalem and of the Holy Places by internationalizing Jerusalem. The reasons then given by U.N.S.C.O.P. for internationalization now carry little conviction ¹. Conditions have arisen which were not foreseen in 1948. Indeed, some could hardly have been imagined at that time.

'The majority group sought to justify its proposals for Jerusalem by reference to five considerations:

(i) that as a Holy City for three faiths, the sacred character of the Holy Places should be preserved and access to them guaranteed to pilgrims from abroad; (ii) that history had shown that religious peace had been maintained in the City because the Government was anxious to prevent controversies involving religious interests from developing into bitter strife and disorder and had the power to do so;

(iii) that religious peace in Jerusalem is necessary for the maintenance of peace in the Arab and Jewish States;

(iv) that the application of the provisions relating to the Holy Places, religious buildings and sites in the whole of Palestine would also be greatly facilitated by the setting up of an international authority in Jerusalem, with a Governor em­powered to supervise the provisions and arbitrate conflicts in respect of the Holy Places; and

(v) that the International Trusteeship System is proposed as the most suitable instrument because the Trusteeship Council, as a principal organ of the U.N., "affords a convenient and effective means of ensuring both the desired inter­national supervision and the political, economic and social well-being of the population of Jerusalem."

One may venture the comment upon these factors that, in relation particularly to the third, peace in Jerusalem has not been the pre-condition of peace between the Jews and Arabs-but rather that peace between Jews and Arabs is the pre­condition of peace in Jerusalem. Secondly, with reference to the final con­sideration, while in 1947 it was quite reasonable to place some reliance upon the possibilities inherent in the idea of trusteeship under direct international super­vision, it is a concept for which no other application has been found in the ensuing twenty years. Indeed, the international trusteeship system, having served a useful and important purpose during the first two decades of the United Nations, is now virtually obsolete. 

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It is worth recalling a number of these new conditions: -The Arab States rejected the Partition Plan and the proposal for the internationalization of Jerusalem.

-The Arab States physically opposed the implementation of the General Assembly Resolution. They sought by force of arms to expel the Jewish inhabitants of Jerusalem and to achieve sole occupation of the City.

-In the event, Jordan obtained control only of the Eastern part of the City, including the Walled City.

-While Jordan permitted reasonably free access to Christian Holy Places, it denied the Jews any access to the Jewish Holy Places. This was a fundamental departure from the tradition of freedom of religious worship in the Holy Land which had evolved over centuries. It was also a clear violation of the undertaking given by Jordan in the Armistice Agreement con­cluded with Israel on 3rd April, 1949. Article VIII of this Agreement called for the establishment of a Special Committee of Israeli and Jordanian representatives to formulate agreed plans on certain matters "which, in any case, shall include the following, on which agreement in principle already exists ... free access to the Holy Places and cultural institutions and use of the Cemetery on the Mount of Olives."'

-The U.N. displayed no concern over the discrimination thus practised against persons of the Jewish faith.

-The U.N. accepted as tolerable the unsupervised control of the Old City of Jerusalem by Jordanian forces-notwith­standing the fact that the presence of Jordanian forces west of the Jordan River was entirely lacking in any legal justification.

-During the period 1948-1952 the General Assembly gradu­ally came to accept that the plan for the territorial inter­nationalization of Jerusalem had been quite overtaken by events. From 1952 to the present time virtually nothing more has been heard of the idea in the General Assembly.

On 5th June, 1967, Jordan deliberately overthrew the Armistice Agreement by attacking the Israeli-held part of Jerusalem. There was no question of this Jordanian action being a reaction to any Israeli attack. It took place notwith­standing explicit Israeli assurances, conveyed to King Hussein through the U.N. Commander, that if Jordan did not attack

' U.N.T.S., vol. 42, p. 314.

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Israel, Israel would not attack Jordan. Although the charge of aggression is freely made against Israel in relation to the Six Days War the fact remains that the two attempts made in the General Assembly in June-July 1967 to secure the condemnation of Israel as an aggressor failed. A clear and striking majority of the members of the U.N. voted against the proposition that Israel was an aggressor'.

In consequence, Israel is in occupation of the whole of Jerusalem and has re-unified the administration of the City. This situation has now persisted for over a year. During that time there has been unrestricted freedom of access for persons of all faiths to all the Holy Places in Jerusalem. In particular, it may be noted, Muslims have enjoyed, under Israeli control, the very freedom which Jews were denied during Jordanian occupation.

In these circumstances, it becomes relevant to ask what is to be done in the future about Jerusalem and the Holy Places? In particular, we may ask what role, if any, has the U.N. to play in this connection?

The answers to these questions involve an appreciation of the following considerations:

(i) The role of the U.N. in relation to the future of Jerusalem and the Holy Places is limited. In particular, the General Assembly has no power of disposition over Jerusalem and no right to lay down regulations for the Holy Places. The Security Council, of course, retains its powers under Chapter VII of the Charter in relation to threats to the peace, breaches of the peace and acts of aggression, but these powers do not extend to the adoption of any general position regarding the future of Jerusalem and the Holy Places.

(ii)                 Israel's governmental measures in relation to Jerusalem -both New and Old-are lawful and valid

(iii) The future regulation of the Holy Places is a matter to be determined quite separately from the political adminis­tration of Jerusalem.                        Territorial internationalization of Jerusalem 

'The relevant paragraph of the Soviet draft resolution of 18th June, 1967, (A/L.519) was defeated on 4th July, 1967, by 36 votes in favour, 57 against and 23 absten­tions. On the same day an Albanian draft resolution (A/L.521) to similar effect was even more disastrously lost-22 votes in favour, 71 against and 27 absten­tions. 

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is dead-but the possibility of functional internationalization is not. The latter means, in effect, the recognition of the universal interest in the Holy Places situate in Jerusalem and the adoption of links between Israel and the world community to give formal expression to that interest.

The remainder of this pamphlet will be taken up with a more detailed examination of these three considerations.

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CHAPTER II

THE ROLE OF THE UNITED NATIONS

(a) LEGAL HISTORY OF PALESTINE TO 1947

In order to estimate the role of the U.N. in relation to Jerusalem and the Holy Places, it is necessary to look at the legal history of the territory in which Jerusalem is situated.

We need go no further back than the period immediately prior to the First World War. From 1517 to 1917 Jerusalem, as part of Palestine, was under Turkish rule. By Article 16 of the Treaty of Lausanne of 1923 Turkey renounced all rights and title over, amongst other areas, that of Palestine, "the future of these territories ... being settled or to be settled by the parties concerned."

In the case of Palestine "the parties concerned" had already settled its future. On 24th July, 1922, the League of Nations with the assent of the Principal Allied and Associated Powers, had granted a mandate in respect of Palestine to the British Government

We thus have the situation in which Turkey's title to Palestine devolved upon the Principal Allied and Associated Powers who, in their turn, had in effect already conveyed their rights to the League of Nations. The precise location of sovereignty over Palestine during the period of the Mandate has been a matter of academic dispute, but is now largely with­out practical significance. After the grant of the Mandate it is clear that sovereignty no longer rested with the Principal Allied and Associated Powers. Equally it is clear that the mere fact that the mandate to administer Palestine had been given to Britain did not convey sovereignty to her. Indeed, it was one of the fundamental elements in, and prime objects of, the Mandate system that the administering authority should not be sovereign, but should possess only those powers granted by the Mandate and in the exercise of them should be subject to the supervision of the League.

If the test of sovereignty rests in determining who had the power to dispose of any part of a territory under Mandate, the 

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answer is that sovereignty lay in the League and the administering authority acting jointly. For example, when in 1923 Great Britain and Belgium agreed to modify the common frontier of their East African mandated areas, they requested the consent of the League to amend the Mandates accordingly.

          The League of Nations was dissolved in 1946. The U.N. had been established during the previous year. There was, how­ever, no formal conveyance by the League to the U.N. of the rights and powers of the former in relation to the mandated territories. At its final session in 1946 the League Assembly adopted a resolution which recognised that "on the termination of the League's existence, its functions with respect to the man­dated territories will come to an end," but noted that Chapters XI, XII and XIII of the Charter embodied principles corres­ponding to those declared in Article 22 of the Covenant.                        The resolution also took note of the expressed intention of the Members of the League then administering territories under Mandate to continue to administer them for the well-being and development of the people concerned "until other arrangements have been agreed between the United Nations and the respective mandatory Powers." ¹                                The United Kingdom informed the U.N. in 1946 of its willingness to conclude Trusteeship Agreements for those territories which it administered under Mandate, save in the case of Palestine whose future, Britain was even by then obliged to say, was in a state of doubt.

(b) THE ROLE OF THE U.N. IN 1947

On 2nd April, 1947, after two years of increasing tension in Palestine, the British Government gave notice to the U.N. of its intention to place the Palestine question on the agenda of the next regular session of the General Assembly, due to start in September 1947, and stated that it would "ask the Assembly to make recommendations under Article 102 of the Charter, concerning the future government of Palestine." The British Government proposed that a special session of the Assembly.

'See Y.B.U.N., 1946-47, p. 575.

'Article 10 of the Charter provides as follows: "The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters."

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should immediately be summoned with a view to constituting and instructing a special committee to prepare for the con­sideration of the question.

Although there was nothing in the Charter which expressly conferred upon the Assembly the power to consider the future of a mandated territory, the Assembly nonetheless accepted the competence thus attributed to it by appointing the U.N. Special Committee on Palestine (U.N.S.C.O.P.). In retrospect one is able to say that this acceptance of competence was a proper thing to do. The reason for saying "in retrospect" is that in 1947 there was no clear authority on the matter. l In 1950, how­ever, the International Court of Justice in an Advisory Opinion on the International Status of South- West Africa expressed the view that the status of a mandated territory could be altered only with the consent of the United Nation S_. 2

On this basis, the action of the United Kingdom in referring the Palestine problem to the U.N. was clearly correct. The United Kingdom was not entitled unilaterally either to terminate the Mandate or to decide upon the political future of the territory. Only the General Assembly could authorise the ending of the Mandate; and only the Assembly could, initially at any rate, make proposals for the future government of the country.

The Committee (U.N.S.C.O.P.) appointed by the Assembly forthwith entered upon its duties and eventually reported to the General Assembly in the autumn of 1947. On 29th November, 1947, as already stated, the Assembly adopted Resolution 181 (II)-the so-called Partition Resolution. This called for the division of Palestine into two States-one Jewish and one Arab, to be established within the boundaries laid down in the Reso­lution. There was to be an economic union between the two States. Jerusalem was to be internationalized.

(c) THE EFFECT OF THE PARTITION RESOLUTION

The Jewish authorities forthwith accepted the Resolution. It did not give them all they wanted-and in particular they did not favour the idea of an internationalized Jerusalem. But they considered that it was better to have a Jewish State in part of

'Although on 14th December, 1946, the General Assembly of the U.N. had affirmed its competence in relation to any change in the status of another man­dated territory namely, South-West Africa. See Resolution 65 (I).

2 I.C.J. Reports 1950, p. 128, at pp. 141-143.                                `

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Palestine, even without Jerusalem, than to have no State at all. This view, it must be recalled, however, was based upon the assumption that the resolution would be accepted and imple­mented by the Arabs, that it would form the basis for peace and order in Palestine, and that though Jerusalem might be inter­nationalized it would be an open city. This assumption proved false. The Arabs rejected the resolution, which they considered to be beyond the powers of the General Assembly and to con­stitute an infringement of the right of the Arab people of Palestine to determine their own political future.

While, of course, it is unfortunate that the Arabs rejected the resolution, they were to some extent correct in their incidental assertion that the General Assembly was not able by resolution to dispose in a binding manner of the whole or any part of the territory of Palestine. Palestine was not the property of the U.N. to give or withhold as it pleased. The role of the U.N. was a restricted one. Its acquiescence in the termination by Britain of its obligations as Mandatory was-for the reason given above-a legal necessity. Moreover, the Assembly could, by putting forward a plan which the interested parties might accept, provide the legal basis for the settlement of the future government of the country. But resolutions of the General Assembly do not normally create legal obligations for the mem­bers of the U.N. (even if Israel and the proposed Arab State had been members at that time, which they were not); and the Partition Resolution did not have a legislative character. The Assembly could not by its resolution give the Jews and the Arabs in Palestine any rights which either did not otherwise possess: nor, correspondingly, could it take away such rights as they did possess.

The precise rights of the Jewish and Arab inhabitants of Palestine at that time cannot easily be specified-and it is question­able whether the legal position in 1947 is of more than marginal relevance to the determination of the legal position today. But some reference to the legal factors then prevailing may be helpful.

It is convenient to distinguish between the position under "general" international law, that is, under the law affecting all nations at that time; and the position in "particular" international law, that is, by reference to those special rules which might have some particular or exclusive bearing on the situation.

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On the whole, general international law in 1947 was little concerned with the rights of communities which had not acquired statehood. But even then it contained the principle of self­-determination-which in the following two decades has assumed great significance in international affairs.

The principle of self-determination is, however, one of in­definite and variable content. Although acknowledged in Article I of the Charter of the U.N. as one of the bases of the development of friendly relations among nations and although applied in many cases as a solvent of existing political structures and a justification for the establishment of new state units, no legal instrument exists which lays down, for example, the size of the community which is to determine its own future or the manner in which the act of self-determination is to take place. Every­body believes in the concept; few are prepared to give it a specific content unrelated to their subjective views of any particular situation. "Self-determination" may readily be invoked for the purpose of embarrassing another State; the concept is less welcome when applied by others to one's own ethnically recognizable minorities.

The vagueness of the idea was even greater in 1947 than it is now. Yet it was relied upon by the Arab States as a justifi­cation for denying the validity of the U.N. action in Palestine. Their contention was that the Arab inhabitants of Palestine should have been allowed to determine their own future. Now this argument, though superficially not unattractive, rests funda­mentally upon the assumption that the concept could be applied to Palestine only as an undivided territorial unit, and without reference to the manifest fact that even by 1947 the country was clearly separable into Jewish and Arab areas. However, that assumption is of doubtful validity. As subsequent experience has shown, for example, in the cases of Togoland and the Cameroons, the process of self-determination is applicable to other than the full territorial unit that happens to bear the name of a single country. French Togoland it will be recalled was divided on the basis of the principle of self-determination between Ghana and Togo; the former German Cameroons were divided first into French and British Mandated territories of that name, and subsequently became respectively the independent republic of the Cameroons and part of Northern Nigeria.

                                                                                         17

When this is borne in mind, it can be seen that the decision of the U.N. to recommend the partition of Palestine, far from being a denial of the right of self-determination, was in fact a direct application of the principle.            The Jews were not to deter­mine the future of the Arabs, nor were the Arabs to determine the future of the Jews.    Each group was to determine its own future.            This the Jews subsequently did.      The Arabs of Palestine did not-whether of their own volition must remain a matter of doubt. If the Arab States neighbouring Palestine had not insisted that the problem was an Arab problem rather than a Palestinian problem, the history of Arab life in Palestine over the last score of years would have been a much happier one.'

So much then for the application of the notion of self­-determination, as the only relevant principle of "general" inter­national law. It is now necessary to turn to the "particular" international law applicable to the Palestine situation.            In this case the governing instrument is the Mandate for Palestine granted to the United Kingdom in 1922. This is the instrument by which the Principal Allied and Associated Powers-to whom Turkey's rights over Palestine had passed ²-indicated the manner in which and the objects for which the country was to be governed. Two paragraphs of the Preamble to the Mandate are particularly important as indicating the respective rights of the interested parties:

 "Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917 by the Government of His Britannic Majesty, and adopted by the said Powers in favour of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country; and

 "Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country . . ."

 'Certainly nothing in the concept of self-determination could in 1948 have justified the Jordanian occupation of the cis-Jordanian parts of Palestine or the Egyptian occupation of the Gaza Strip.

=See above, p. 13. 

18

Here, then, we have in an effective legal instrument, binding alike upon the Principal Allied and Associated Powers and upon the Members of the League, an express acknowledgment that the policy of "reconstituting" a Jewish national home was to be implemented.' True, the commitment was subject to the im­portant condition that "nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine."            But the basic commitment was clear.

And in legal terms the General Assembly of the U.N. could not add to or subtract from this commitment by the direct operation of any Assembly resolution. This is not to say that the Partition Resolution was entirely without legal significance. Apart (as already indicated) from authorising the United King­dom to end the Mandate, it also represented an indication by the General Assembly of the general direction in which it thought it proper that the political future of the country should move. While the resolution was not a title-deed to the territory of a new Jewish State (or for that matter to a new Arab State, if the one contemplated in the Resolution had been created) it rep­resented a mark of international approbation of the creation of the new State which, while not legally essential, is not legally irrelevant. ² It also represents another-not strictly legal­ reason for questioning the propriety of the invasion of Palestine by Egyptian, Iraqi, Jordanian, Lebanese and Syrian forces in 1948. The legal reasons will be considered in the next chapter. But it was manifestly no part of the General Assembly's inten­tions for Palestine that it should in greater or lesser degree be carved up by its Arab neighbours.

However, the coming into existence of Israel does not depend legally upon the Resolution. The right of a State to exist flows from its factual existence-especially when that existence is pro­longed, shows every sign of continuance and is recognised by the generality of nations.

1 It may be recalled that on 16th September, 1922, the British Government made a declaration, subsequently confirmed by the League Council, modifying the Palestine Mandate so as to exclude Trans-Jordan from the operation of the obligation to establish a Jewish National Home.

2 It is interesting to note that the Declaration of the Establishment of the State of Israel described the basis for the establishment of the State of Israel in the follow­ing terms: " . . . By virtue of our natural and historic right and on the strength of the Resolution of the United Nations General Assembly . . ." Thus the Resolution was relied upon not as the legal basis for the creation of the State, but was mentioned primarily as a relevant historical element. ` 

19

Two consequences follow from this assessment of the significance of the Partition Resolution of 1947.

First, the proposal for the internationalization of Jerusalem never assumed the dimensions of a legally binding obligation. The proposal represented the U.N.'s assessment of one element in the creation of a viable future for a divided Palestine. The parties were free to accept or reject it. The Jews accepted it. The Arabs rejected it. The U.N.-as will be seen-eventually also acquiesced in the idea that its proposal was not to be imple­mented.

The Partition Resolution still stands, of course, as an indi­cation of what the U.N. wanted in 1947.¹ Some Members of the U.N. have invoked the resolution as a justification for refusing to accept the legitimacy of Israeli sovereignty (in the period prior to June 1967) over the New City of Jerusalem .² But reliance upon the Resolution as a justification for such non-recognition is pseudo-legal. The Resolution cannot be regarded as justify­ing non-recognition of Israeli sovereignty over the New City; nor, as will be presently suggested, for denying the validity of the Israeli re-unification of the administration of the whole City. Moreover there are quite a number of Members of the U.N. who have been content to accept Jerusalem as the capital of Israel and to deal with the Israeli Government on that basis and with­out reservation. ³

The second consequence of the limited legal significance of the Partition Resolution is that the boundaries therein laid down for the territories of the proposed Jewish and Arab States and for the internationalized City of Jerusalem have no permanent legal force.            The position would, of course, have been otherwise

'It may even still represent the "internal" law of the U.N., in the sense that the Secretariat as an organ of the U.N. may be bound to make its conduct conform to the theory therein reflected that the area of the internationalized Jerusalem was not to form part of the Jewish or Arab State. Yet to endow the Resolution with even this degree of force at the present time is to attribute to Secretariat opinion an inflexibility which is not wholly appropriate to its functions, nor entirely consistent with the constructive vitality which generally infuses its attitudes.

2 The following States have qualified their recognition of Israel by a reference to the U.N. resolutions on Jerusalem: Australia, France, New Zealand, Turkey, South Africa and the United Kingdom.

³The following States either have embassies or are diplomatically represented in Jerusalem: Bolivia, Central African Republic, Chile, Colombia, Congo (Brazza­ville), Congo (Democratic Republic), Costa Rica, Dahomey, Dominican Republic, Ecuador, Gabon, Greece, Guatemala, Ivory Coast, Madagascar, Netherlands, Niger, Panama, Upper Volta, Uruguay and Venezuela.

20

had the Resolution been fully adopted by the interested parties as the de facto basis for their co-existence. But at the moment when the Resolution failed to be implemented, its description of specific boundaries ceased to be fully relevant, though it would not be appropriate to say that the proposed boundaries then became completely irrelevant. As a description of a particular boundary they became worthless; but as the reflection of the idea that there should be a boundary between a Jewish and an Arab State somewhere in Palestine the proposal still retained some value-albeit a historical rather than a legal one.

(d) DEVELOPMENTS SUBSEQUENT TO THE PARTITION RESOLUTION

This assessment of the essentially "historical" and non­legal character of the Partition Resolution is supported by con­sideration of two additional factors.

(i)                   THE REJECTION BY THE ARABS OF THE POLITICAL FRAME WORK FOR INTERNATIONALIZATION

In the first place, the Arab States not only rejected the Resolution; they actively sought to overthrow it. Contem­poraneously with the British withdrawal from Palestine the country was invaded by Egyptian, Iraqi, Jordanian, Lebanese and Syrian forces. Contemporary evidence of the fact of in­vasion is overwhelming, though the Arab States sought to warrant their action by invoking the need to protect the Arabs of Palestine. On 15th May, 1948, the Government of Egypt sent to the President of the Security Council a cablegram declaring "now that the British Mandate in Palestine has ended ... Egyptian armed forces have started to enter Palestine . . ." The justifi­cation advanced for this action was that it was "to establish security and order in place of chaos and disorder."1            On 16th May, the King of Jordan cabled the Secretary-General of the U.N.: "We were compelled to enter Palestine to protect unarmed Arabs against massacres . . ." ²              On 21st May the Saudi Arabian Government, in a reply to a Security Council questionnaire, stated that "Saudi Arabian forces are now operating in the south of Palestine under Arab Command ... Saudi Arabia has

 ¹S.C.O.R., 3rd Yr., 292nd Mtg., p. 3.

2 S/748, S.C.O.R., 3rd Yr., Supp. for April, 1948, p. 90.

                                                                             21

no other object in view except to put an end to this state of anarchy and to restore peace, order and security in Palestine."'

The view of the Soviet bloc upon these actions is worth noting (as impartially summarized in the Year Book of the United Nations) :

"On the question of the withdrawal of foreign troops, they asserted that the presence of foreign troops and military person­nel which had invaded the country was responsible for the present disorders and the sufferings of the population. Moreover, the presence of foreign troops constituted an obstacle to the re­establishment of peace, the objective of the General Assembly. Foreign intervention was clearly manifest on the Arab side, for there was a British General Glubb Pasha and British officers commanding Trans-Jordan troops. These troops, as well as those of Egypt, Syria and Lebanon had invaded the territory earmarked for the Arab State of Palestine.     This State had not been established, as provided for in the 1947 resolution.     On the other hand, the State of Israel had been set up within the terri­torial limits established by the General Assembly Resolution. The withdrawal of troops was a necessary condition for the establishment of peace and for any settlement of the Palestine question in accordance with the 1947 resolution."2

 he consequence of the Arab rejection of the Partition proposal and of the forcible entry of the Arab States into Palestine was that the implementation of the Partition Resolution was thereby effectively frustrated in three out of its four major elements. No Arab State was established within Palestine; there could thus be no economic union of the Arab and Jewish States. Further, the physical attack by the Arab forces upon the Jews in Jerusalem, and indeed upon the Jewish State as such, left the Israeli forces with no option but to respond in kind and maintain such hold as they could upon the areas then in Jewish possession, to the point-by way of defensive rationalisation of their positions of moving in places beyond the lines laid down in the Partition Resolution.

 ¹S/772, ibid., p. 96.

2 Y.B.U.N., 1948-9, p. 171. Again, in the General Assembly on 9th December, 1949, the U.S.S.R. delegate said: "Even before the end of the Mandate, when Palestine was still under the official control of the United Kingdom, detachments of the Arab Legion of Transjordan commanded by British nationals had in­vaded Palestine. Those detachments had occupied strategic points and military bases evacuated by British troops . . ."  (G.A.O.R., 275th Plenary Mtg., para. 15).

                                                                               22

(ii) THE GRADUAL EXHAUSTION OF U.N. INTEREST IN INTER­- NATIONALIZATION

This de facto abandonment of the Partition Resolution by the Parties directly concerned came in time to be matched by a similar, though not fully articulated, attitude on the part of the U.N. Although the General Assembly, quite understand­ably, began by treating the Resolution as a valid and effective instrument which it should seek to implement as fully as possible, in due course it gradually abandoned this position. Thus for some five years after the Resolution, the Assembly pursued further the question of the internationalization of Jerusalem.' After 1952, however, no more was heard in the General Assembly and the Security Council about internationalization, although the Secretariat and various individual Members of the U.N. continued on occasion to pay lip service to the idea.

Moreover, when in 1967, in the aftermath of the Six Day War, the General Assembly came to concern itself with the Jerusalem problem, it is significant that it made no mention of the idea of internationalization in the relevant resolutions.            In­deed, the resolutions appear to proceed on the basis that the General Assembly accepted the immediately pre-existing division of the City into its Israeli and Jordanian-held parts.

At this remove of time it may be helpful to recall in some detail the gradual decline in the momentum with which the U.N. pushed the idea of internationalization-until eventually it was replaced by a realistic assessment of the impracticality of the concept. And in so doing, we may note the emergence of the idea of "functional"-as opposed to "territorial"-inter­nationalisation: an idea which involves instead of the direct international government of Jerusalem simply a demonstration of international concern for freedom of access to and worship at the Holy Places. We may also observe the divisions and shifts in Arab policy: the division between Jordan and her neigh­bours; and the shift on the part of the Arab States other than Jordan from opposition to territorial internationalization to acceptance of it, as they gradually realised that on no other basis could they serve their political objective of ousting Israel

'For a helpful indication of the official Israeli attitude to these developments see Israel and the U.N., pp. 128-140.

23

from Jerusalem-a motive which was only coincidentally associ­ated with concern for the Holy Places.

Here then is the narrative of the manner in which the U.N. approached the internationalization of Jerusalem between 1948 and 1952.

1948: THE TRUSTEESHIP COUNCIL

Within five days of the adoption of the Partition Resolution, the Trusteeship Council appointed a Working Party on Jerusalem, l whose Report ² was considered by the Council during the second part of its second session in February-March 1948. In these debates, the Iraqi delegate took the position, on behalf of all the Arab States, that the proposal for an international trusteeship for Jerusalem was a breach of the Charter and violated the inalienable rights of the people concerned. They were not prepared to enter into details or to participate in the discussion of the plan. "The Council would, moreover, be held responsible for an action charged with dangerous responsibilities (sic) to which the Iraqi Government declared itself in no way bound, and in regard to which it reserved complete freedom of action." ³

In fact, the Trusteeship Council did not proceed formally to adopt the draft Statute which it had been elaborating, prim­arily because by the time it was ready to do so (on 20th April, 1948), the General Assembly was already undertaking, at its second special session, a further consideration of the future government of Palestine. The Council instead decided to refer the question of the Statute to the Assembly.⁴ In September 1948 the U.N. Mediator on Palestine made certain proposals for the future of the territory which included a suggestion that the City of Jerusalem and the Holy Places be placed under effective U.N. control. s

1948: THE GENERAL ASSEMBLY

The General Assembly did not at its 1948 session consider the draft Statute for Jerusalem which had been referred to it

'T.C.O.R., 2nd Sess. lst Part., p. 140, 2nd Dec. 1947.

2 T/122.

³T.C.O.R., 2nd Sess., 2nd Part, 19th mtg., p. 5, 18th Feb. 1948.

4 Trusteeship Council Resolution 34 (II).

5 See Progress Report of 16th September, 1948, A/648, as reported in Y.B.U.N, 1948-9, p. 167.

24

by the Trusteeship Council. Instead, on llth December, 1948, the Assembly adopted a resolution in which, after establishing a Conciliation Commission, it resolved that the Holy Places should be protected and free access to them assured; and that "the Jerusalem area . . should be accorded special and separate treatment from the rest of Palestine and should be placed under effective U.N. control." r The resolution also requested the Security Council to take further steps to ensure the demilitariza­tion of Jerusalem at the earliest possible date' and instructed the Conciliation Commission to present to the next session of the Assembly "proposals for a permanent international regime for the Jerusalem area which will provide for the maximum local autonomy for distinctive groups consistent with the special inter­national status of the Jerusalem area." ³

1949: THE ISRAEL-JORDAN ARMISTICE AGREEMENT

Yet even before the matter was further considered by U.N. organs, Israel and Jordan had signed, on 3rd April, 1949, an Armistice Agreement in which the de facto division of Jerusalem -and its consequent non-internationalization-was crystallized.'

The Agreement provided in particular that a Special Com­mittee of two representatives of each party should be established immediately to formulate arrangements on various matters in­cluding, specifically, "free access to the Holy Places and cultural institutions and the use of the cemetery on the Mount of Olives." ⁵

'Resolution 199 (III). Text in Y.B.U.N., 1948-49, p. 174.

'When, in October 1949, Egypt raised in the Security Council the question of the demilitarization of Jerusalem pursuant to the request made in the Assembly's resolution of 11 th December, 1948, the President of the Council suggested post­ponement of the item pending its consideration in the Assembly. (Y.B.UN., 1948-49, pp. 189-190).

'Ibid.

°U.N.T.S., vol. 42, p. 304.

SSee Article VIII (2).          In November 1950 Israel complained to the Security Council that Jordan had violated the Israel-Jordan Armistice Agreement through inter alia, non-implementation of Article VIII relating to Jerusalem, thereby preventing access to Holy Places, impairing the water supply of the city of Jerusalem, prevent­ing the normal functioning of the Hebrew University and the Hadassah Medical Centre and preventing normal traffic on vital roads. On 17th November, 1950, the Security Council adopted a resolution which read in part: "The Security Council notes that with regard to Article 8 of the Israeli-Jordan Armistice Agree­ment the Special Committee has been formed and has convened and hopes that it will proceed expeditiously to carry out the functions contemplated in para­graphs 2 and 3 of that Article." (S/1907. See Y.B.U.N., 1950, p. 320).

25

1949: THE PALESTINE CONCILIATION COMMISSION

Nevertheless, the Conciliation Commission, pursuant to the instruction given to it by the Assembly, began in March 1949 to prepare proposals for a permanent international regime for the Jerusalem area.            It established a Special Committee on Jerusalem and the Holy Places which in April entered into discussions with the Israeli and the Arab Governments.            During these con­versations, the Arab delegation indicated general acceptance of the principle of an international regime for the Jerusalem area on condition that the U.N. should be in a position to offer the necessary guarantees regarding the permanence and stability of such a regime. The Israeli Government on the other hand declared its intention to request the General Assembly to revise part of its resolution of llth December, 1948.   While the Israeli Government accepted without reservation an international regime for, or international control of, the Holy Places in the City of Jerusalem, it could not accept the establishment of an inter­national regime for the City. l

By September 1949 the Commission had prepared a draft text of an instrument establishing a permanent international regime for the Jerusalem area. ²In it the Commission proposed:

1. That the Jerusalem area should be permanently de­militarized and neutralized;

2. That the area should be divided into two zones, one Arab and one Israeli, to be administered by the respective authorities; and

3. That four principal organs, namely a U.N. Commissioner, a General Council, an International Tribunal and a Mixed Tribunal, should be set up to exercise certain specific powers concerning mainly the protection of and free access to the Holy Places in the Jerusalem area, the protection of human rights, the co-ordination of the public services of common interest and the solution of the various legal conflicts resulting from the existence of two separate zones.

'Second Progress Report of the Palestine Conciliation Commission A/838, as summarised in Y.B.U.N., 1948-49, p. 198. See also Israel and the U.N., p. 132. 'Further Progress Report (A/992) and Draft Text (A/973 and Add. 1), together with a draft declaration (A/1113); summarised in Y.B.U.N., 1948-49, pp. 198-199.

6

1949: AD HOC POLITICAL COMMITTEE OF THE GENERAL ASSEMBLY

This proposal, and the documents associated with it, were then considered by the Ad Hoc Committee of the General Assembly in late November and early December 1949.¹  During

these debates the Government of Israel proposed that the U.N. should sign an agreement with Israel relating to the supervision and protection of the Holy Places.' A sub-committee was established to study and report on the various proposals regarding Jerusalem. This sub-committee proposed, and the Ad Hoc Political Committee eventually adopted, a resolution which called upon the General Assembly, inter alia, to restate its intention that Jerusalem should be placed under a permanent international regime, which should envisage appropriate guaran­tees for the protection of the Holy Places. ³ During the dis­cussion prior to the adoption of this resolution, the Jordanian delegate stated that internationalization would serve no useful purpose since the Holy Places under the control of his Govern­ment were safe and there was no need for a special regime .⁴

1949: PLENARY SESSION OF THE GENERAL ASSEMBLY

The proposal made by the Ad Hoc Political Committee was discussed in the plenary meeting of the General Assembly on 9th December, 1949. Among those who supported the pro­posals of the Ad Hoc Political Committee were the represen­tatives of Argentina, Australia, Brazil, Cuba, Egypt, El Salvador, Greece, Haiti, Iraq, Lebanon, Pakistan, Peru, Syria and the U.S.S.R., mainly on the grounds that implementation of the resolution would ensure peace and security in Jerusalem and would meet the interests of both the population of the city of Jerusalem and all religious groups. The resolution was opposed by the representatives of Canada, Denmark, Guatemala, Israel, the Netherlands, Norway, Sweden, the Union of South Africa, the United Kingdom, the United States and Venezuela, primarily on the ground that its adoption might jeopardise the truce in Jerusalem, complicate the finances of the U.N., and be impossible

' Y.B. U.N., 1948-49, p. 190 et seq.

2 Draft attached to draft resolution A/AC.31/L.42. For text, see below, Appendix

1, p. 76

3 'Y.B.U.N., 1948-49, p. 191.

4 Ibid., p. 192.

27 

to implement.'            Instead a joint Netherlands-Swedish draft z, supported by Canada, Chile, Iceland and Norway, proposed the internationalization of the Holy Places without disturbing the existing political situation in Jerusalem.

The Assembly then adopted, on 9th December, 1949, Reso­lution 303/IV ³ in which it restated its intention that Jerusalem should be placed under a permanent international regime, which should envisage appropriate guarantees for the protection of the Holy Places, both within and outside Jerusalem. The Trustee­ship Council was requested to complete the preparation of the Statute of Jerusalem at its next session.

1949-50: THE TRUSTEESHIP COUNCIL

For the purpose of carrying out the task thus re-assigned to it, the Trusteeship Council held a special session from 8th to 20th December, 1949. The President of the Council was asked to prepare a working paper on the Statute in time for the next session of the Council on l9th January, 1950. The Council also adopted a resolution 4 in which it expressed the opinion that the Government of Israel, in removing to Jerusalem certain of its ministries and central departments, was likely to render more difficult the implementation of the Statute.

When the Council met again in January 1950 it had before it the President's proposals for the establishment of Jerusalem as a corpus separatum to be placed under a permanent inter­national regime. The territory was to be an economic free zone, but was to be divided into three parts-an Israeli zone, a Jordanian zone and an international city, which would include all the Holy Places covered by the Status Quo of 1757.⁵

During the debate, the representatives of Egypt, Iraq and Syria objected to the division of the City into three parts. Jordan stated that it was not prepared to discuss any plan for internationalization. Israel declared that, while opposed to the internationalization of the Jerusalem area, as proposed in the Statute, it was willing to accept the principle of direct U.N. responsibility for the Holy Places.

1 Ibid., p. 193.

2 A/1227.

3 The voting was 38 to 14, with 7 abstentions. For text, see Y.B. U.N., 1948-49,

p. 196.

4 T/427.

5 Y.B.U.N., 1950, p. 335. See also p. 65 below.

28

The Council also heard the views of various religious groups. The representative of the Patriarch of Jerusalem stated that the following, among other conditions, should be guaranteed: (i)

The Status Quo of 1757 should be kept inviolate; (ii) the character of the monastic foundations belonging to each Church should be preserved; and (iii) the Holy Places and Shrines, as well as the property attached to them, should be exempt from all taxation. 

The representative of the American Christian Palestine Com­mittee expressed the view that the internationalization of Jerusalem was impossible to implement, in view of the opposition of the inhabitants of that area to any such plan.            A U.N. Commission should be established which would have no territorial sovereignty but only the duty of protecting the Holy Places vis-a-vis the Governments concerned.

The representative of the Armenian Church welcomed the internationalization of Jerusalem but made certain proposals for the establishment of a legislature and the creation of a judicial organ charged with the special task of regulating differences between the religious groups and the civil authorities.

Finally, the representative of the Commission of Churches on International Affairs suggested three conditions for an inter­national regime for Jerusalem: (i) the preservation of human rights and fundamental freedoms, particularly of religious liberty; (ii) recognition that the protection of and access to Holy Places was an international responsibility; and (iii) the return to owners of all church-owned and mission-owned property in Palestine which was occupied by either Arabs or Jews.

Eventually on 4th April, 1950, the Trusteeship Council approved a draft Statute for Jerusalem under which the City was to be constituted a corpus separatum, but not divided into three parts. On 14th June, 1950, the Council decided to sub­mit to the General Assembly its special report ¹ containing the Statute.

1950: AD HOC POLITICAL COMMITTEE OF THE GENERAL ASSEMBLY

This report was considered by the Ad Hoc Political Com­mittee of the General Assembly between 7th and 14th December, 1950.

1 A/1286.

29 

During the debates in the Ad Hoc Political Committee both Sweden and Belgium presented draft resolutions which, in effect, dropped the idea of internationalization of the City. Sweden proposed simply that Israel and Jordan should give certain pledges to respect human rights and give free access to the Holy Places, while allowing the U.N. to supervise through a Com­missioner the protection of and access to the Holy Places. But jurisdiction and control over each part of the Jerusalem area was to be exercised by the States concerned.' The Belgian proposal was that there should be further study of the conditions of a settlement capable of ensuring the effective protection, under U.N. supervision, of the Holy Places ².

During the debate, the Jordanian representative while repeat­ing his objection to the territorial internationalization of the City, did not close the door to the functional internationalization proposed by Sweden. However, he said, the Swedish draft resolution tended in certain respects to infringe the sovereignty of Jordan and he was therefore unable to accept it as it stood.

Other Arab and Moslem States opposed the Swedish pro­posal on the grounds that it would fail to resolve the basic issue which was how international control could harmonise the two

opposing nationalisms which dominated the city, and that it was inconsistent with the resolution adopted by the General Assembly. They felt that full territorial internationalization of the City was the best solution. 

The representative of Israel supported the Swedish proposal and stated that Israel would be prepared to co-operate with a U.N. Commissioner.

The Swedish proposal received support from, amongst others, Australia, Denmark, Guatemala, the Netherlands, New Zealand, Turkey, South Africa, the United Kingdom, the U.S.A., the

Uruguay and Yugoslavia.³ The Belgian draft was supported by Brazil, Chile, China, El Salvador, France, Greece and the Philip­pines, among others.

The Soviet delegate stated that although the resolutions of 1947 and 1949 had provided for the creation of a permanent

L A/AC.38/L.63.                For text, see Appendix II below, p. 80.

2 A/AC.38/L.71.

3 For the text of an amendment proposed by the United Kingdom, see Appendix III below, p. 84. 

30

international regime, it now appeared that the solution was acceptable to neither the Arab nor the Jewish inhabitants of Jerusalem. Accordingly, his Government could not continue to support those resolutions. As both drafts now before the Com­mittee were unsatisfactory, the U.S.S.R. would abstain from voting on either of them. l

The Committee then voted first on the Belgian draft. As this was adopted by 30 votes to 18 with 11 abstentions, the Committee decided not to vote on the Swedish draft.

1950: PLENARY SESSION OF THE GENERAL ASSEMBLY

But when the report of the Ad Hoc Committee containing the resolution recommended by it was voted upon by the General Assembly on 15th December, 1950, without a debate, the voting

in favour of the draft was 30 in favour, 18 against and 9 absten­tions. As a two-thirds majority is required for the adoption in the General Assembly of a resolution on important matters, the draft resolution was not adopted. The consequence was that no further action on the Jerusalem question was taken in the U.N, between December 1950 and December 1952.

1952 (January): THE GENERAL ASSEMBLY

Although the question of Palestine was discussed in the Ad Hoc Political Committee and in the Plenary Meetings of the General Assembly in January 1952 the question of Jerusalem was not specifically raised. Nevertheless on 26th January, 1952, the Assembly adopted Resolution 512 (VI)² in which, after re­calling its earlier resolutions on the Palestine problem and stating that it had examined the progress of the Palestine Conciliation Commission, it noted that the Commission had been unable to fulfil its mandate and stated that it considered "that the govern­ments concerned have the primary responsibility for reaching a settlement of their outstanding differences" in conformity with the Assembly's resolutions. While this resolution does not in­volve any explicit abandonment of the Assembly's views on internationalization the fact that it is not expressly mentioned is a mark of the diminishing importance which the Assembly was coming to attach to that solution.

'On 17th April, 1950, the Soviet Union had informed the Secretary-General of the U.N. that it was withdrawing its support of G.A. Resolution 303 (IV) (See G.A.O.R., 5th Sess., Supp. No. 1, p. 5).

'See Y.B.U.N., 1951, p, 308.

31

1952 (December): THE GENERAL ASSEMBLY

In 1952 the General Assembly decided quite explicitly not to re-assert the principle of internationalization. The Arab States had inscribed on the General Assembly agenda an item entitled "The Conciliation Commission for Palestine and its work in the light of the resolutions of U.N." ¹ In their state­ments the Arab States drew attention to the fact that the Com­mission had been unable to implement the Assembly's decisions regarding the internationalization of Jerusalem and its Holy Places. On 11th December, 1952, the Ad Hoc Political Com­mittee adopted a resolution in which it urged "the Governments concerned to enter at an early date ... into direct negotiations for the establishment of ... a settlement, bearing in mind the resolutions as well as the principal objectives of the U.N. on the Palestine question, including the religious interests of third parties.” 2

When this resolution was considered in the plenary session of the Assembly, the Philippines representative proposed two amendments to the clause just quoted, of which one was the addition at the end, after the words "interests of third parties," the words "and, in particular, the principle of the inter­nationalization of Jerusalem." This amendment was not adopted because it failed, by a quite significant figure, to achieve the required two-thirds majority. The voting was 28 in favour, 20 against and 12 abstentions.³ The Ad Hoc Political Committee's

' See Y.B.U.N., 1952, p. 299 et seq.

² Ibid., p. 252.

³The voting was as follows: In favour: Afghanistan, Argentina, Belgium, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Egypt, El Salvador, Ethiopia, Haiti, India, Indonesia, Iran, Iraq, Lebanon, Pakistan, Para­guay, Peru, Philippines, Saudi Arabia, Syria, Thailand, Venezuela, Yemen. Against: Byelorussian S.S.R., Czechoslovakia, Denmark, Ecuador, Iceland, Israel, Netherlands, New Zealand, Norway, Panama, Poland, Sweden, Turkey, Ukrainian S.S.R., Union of South Africa, U.S.S.R., United Kingdom, United States, Uruguay, Yugoslavia. Abstaining: Australia, Burma, Canada, China, France, Greece, Guatemala, Honduras, Liberia, Luxembourg, Mexico, Nicaragua.

The following table of voting on "territorial internationalization" is taken from Israel and the U.N., p. 138:

              In                     Absten-

Year Favour    Against   tion.s              Result

1947        33                13                10                Resolution 181 (ii)

1948        35                15                8                     “„        194(III)

1949        38                14                7                     “          303 (IV)

1950        30                18                9                No resolution for

1951              no discussion                            lack of two-thirds

1952      28           20            12                     majority

1953              no discussion                               “            “ 

32

draft resolution was itself then not adopted by a vote of 24 in favour to 21 against with 15 abstentions.

This meant that the Assembly adopted no resolution on Palestine at its seventh session, and Resolution 512 (IV) remained in force.

1952-1967: U.N. INACTION

From 1952 to 1967 the question of Jerusalem was con­spicuous only by its absence from discussion in the U.N. During those fifteen years, the matter was never referred to in the General Assembly. l Moreover, on only three occasions has the subject been mentioned in the Security Council: in 1957, when there was some discussion of the status of certain areas lying in the areas between the Israeli and Jordanian held parts of Jerusalem; in 1958, when there was a brief reference to the question of Mount Scopus; and in 1965, when Jordan filed a complaint about a proposed Israeli Independence Day Parade to be held in Jerusalem, but did not request a meeting of the Security Council.

For all practical purposes, the idea of internationalizing Jerusalem was forgotten. Moreover, the members of the U.N. showed no concern whatsoever about the protection of the Holy Places. They were content to accept-and for fifteen years accepted-the de facto unilateral control of Israel and Jordan over the Holy Places within their respective jurisdictions. 

1967: THE GENERAL ASSEMBLY RESOLUTIONS

Then, early in June 1967, renewed fighting broke out between Israel and her neighbours. Faced by the closure of the Straits of Tiran, the prospect of a renewed blockade of Eilath and the manifest threat of the massive use of force by Egypt, Israel was compelled to adopt vigorous defensive measures. Egyptian forces were driven out of the Gaza Strip and, indeed, out of the whole of the Sinai Peninsula.            Jordan failed to restrain itself and after joining on 5th June in the general attack upon Israel was driven

'The Report of the Conciliation Commission for the period covering 1953 referred to the fact that protests by the Arab States had been transmitted to it regarding the transfer of Israeli Ministries to Jerusalem. The Commission stated that it adhered to the position on this topic which it had taken in 1949. (Y.B.U.N., 1953, p. 214).

²It may be noted that of the 30 Holy Places listed by the U.N. in 1949 only two fell within the part of Jerusalem held by Israel prior to the events of June 1967. The rest were under Jordanian control.

33

not only out of Jerusalem but also out of all possessions on the west bank of the Jordan River.

Israel's opponents in the U.N. reacted to those events in two ways. First, they sought to secure the condemnation of Israel as an aggressor.            In this they failed miserably.'            Secondly,

they sought to attack the validity of Israeli measures affecting the government of the City of Jerusalem. In this they achieved a measure of success-albeit merely verbal. 

On 4th July, 1967, the General Assembly adopted a resolu­tion proposed by Pakistan of which the most important pro­visions read as follows:

"The General Assembly,

Deeply concerned at the situation prevailing in Jerusalem as a result of the measures taken by Israel to change the status of the City,

1. Considers that these measures are invalid;

2. Calls upon Israel to rescind all measures already taken and to desist forthwith from taking any action which would alter the status of ~ Jerusalem ... " 2

And on 14th July, 1967, the General Assembly adopted a further resolution on the same subject in which it deplored Israel's failure to implement the resolution of 4th July, and reiterated its call to Israel to rescind all measures already taken and to desist forthwith from taking any action which would alter the status of Jerusalem.

The question which we must ask is whether these resolutions reflected any intention on the part of the General Assembly to resurrect the idea of the territorial internationalization of

Jerusalem and, in particular, whether "the status of the City" about which the first resolution stated concern was the status of Jerusalem as a city chosen by the General Assembly in 1947 for internationalization. To both these questions a negative answer may properly be given.

It may be noted that the first resolution was adopted with virtually no discussion of its content. In the general debate which preceded its introduction only four States-Spain, Brazil, Ivory

Coast and Peru-had referred to the internationalization of Jerusalem; the rest had discussed the Middle East crisis

'See above, p. 11, n. 1.

2Resolution 2253 (ES­-V).    The voting was 99 in favour, none against and 20 abstentions.

34

in more general terms or had been concerned to assert in a variety of ways the concept that a State should not be permitted to acquire territory by force.' The voting on the resolution was immediately preceded by the rejection of the Soviet and Albanian draft resolutions seeking condemnation of Israel as an aggressor; and the resolution clearly represented the maximum which the General Assembly was prepared to accept at the time. Nor was the content of the second resolution any more fully scrutinised; and no attempt was made to read into it a reassertion of the idea of internationalization.

Furthermore, the language used in the resolutions is quite incompatible with any demonstration of concern for the idea of internationalization. It should be recalled in this connection that the measures to which the resolution was directed were measures of administrative re-unification of the City. To declare them invalid and to call upon Israel to rescind the measures already taken was, in effect, to demand the restora­tion of a status which involved a claim by Jordan to control over the Old City of Jerusalem which was completely irrecon­cilable with the idea of internationalization.

Thus, it may be said that the resolution goes even further than a non-assertion of the idea of internationalization. For, in laying emphasis without qualification upon the restoration of the status of the City to the position prior to the fighting, the Resolution appears to concede the acceptability of the previous occupation of each of the two parts of the City by Israel and Jordan respectively.

1968: THE SECURITY COUNCIL RESOLUTION

Finally, reference should be made to the adoption by the Security Council on 27th April, 1968, of a resolution calling upon Israel not to hold a military parade in the part of Jerusalem formerly held by Jordan and on 2nd May, 1968, of a resolution deeply deploring the holding of the parade in disregard of the earlier resolution. Neither of those resolutions-either in their terms or by reason of the debates preceding their adoption ­can be regarded as indicating any revival of a U.N. interest in the territorial internationalization of Jerusalem. The basis of the Security Council's attitude as reflected in both resolutions was

'The validity of the application of this concept to the Israeli actions will be con­sidered in the next chapter. See below, p. 51.

35

its concern with the maintenance of peace and security and its consequential fear that the parade would aggravate tensions in the area and have an adverse effect on a peaceful settlement of problems in the area.'

(e) CONCLUSIONS

At the risk of labouring the obvious, the principal con­clusions to be drawn from this close survey of what has actually happened in the U.N. in relation to the internationalization of Jerusalem are the following:

(i)            During the critical period of the changeover of power in Palestine from British to Israeli and Arab hands, the U.N. did nothing effectively to implement the idea of the inter­nationalization of Jerusalem.

(ii) In the five years 1948 to 1952 inclusive, the U.N. sought to develop the concept as a theoretical exercise in the face of a gradual realization that it was acceptable neither to

Israel nor to Jordan and could never be enforced. Eventually the idea was allowed quietly to drop.

(iii)            In the meantime, both Israel and Jordan demonstrated that each was capable of ensuring the security of the Holy Places and of maintaining access to and free worship at them-with the exception, on the part of Jordan, that Jews were not allowed access to Jewish Holy Places in the area of Jordanian control.

(iv)            The U.N. by its unconcern with the idea of territorial internationalization, as demonstrated from 1952 to the present date, effectively acquiesced in the demise of the concept. The events of 1967 and 1968 have not led to its revival.

(v) Nonetheless, there began to emerge, as long ago as 1950, the idea of "functional" internationalization of the Holy Places in contradistinction to the "territorial" internationaliza­tion of Jerusalem. This means that there should be no element of international government of the City, but only a measure of international interest in and concern with the Holy Places. This idea has been propounded by Israel and has been said to be acceptable to her. Jordan has not subscribed to it. The various ways in which it may be implemented are explored in Chapter IV below.

'A later Security Council resolution of 21st May, 1968 (S;RES/252 (1968)), was received too late for detailed consideration in this pamphlet-but it does not appear to alter the position described above.

36

CHAPTER III

THE LAW AND JERUSALEM

We shall in this Chapter distinguish between, and deal separately with, those parts of Jerusalem which were under Israeli control between 1948 and 1967, i.e. in general terms, the

New or western City, and those parts which fell under Israeli control as a result of the fighting in June 1967, i.e. the Old and eastern parts of the City.

(a) THE NEW CITY

It will be clear from the previous chapter that it was no part of the General Assembly's original intention as expressed in the 1948 Partition Resolution that any part of Jerusalem should be subject to the sovereignty of Israel or of any other State. Yet, as events have turned out, Israel has been in control of the New City of Jerusalem since 1948 and has claimed sovereignty over it since 1949. The question which we must examine is whether there is any element of illegality in this now long-established Israeli presence in, and claim to sovereignty over, the New City.

Israeli sovereignty over the New City of Jerusalem has rarely been challenged and is now established to a degree which renders unrealistic any contemplation of reversal of the position. Nevertheless, an understanding of the basis of Israel's rights in the New City before 1967 is fundamental to an appreciation of her rights in the Old City after 1967.

When considering rights to territory, lawyers usually prefer to speak in terms of "title to," or "sovereignty over," territory. Certainly in the case of the New City, these are what Israel claims. The New City is in the Israeli view no less a part of the territory of Israel than is, say, any part of Israel, l such as Tel Aviv, falling within the territory originally allotted to the Jewish State under the Partition Resolution and therefore indisputably Israeli. As will be seen, the Israeli claim to the Old City is differently couched and may therefore be different in nature.2

'Though see above, p. 20, for an indication of the manner in which a number of States have refrained from establishing embassies in Jerusalem for reasons said to flow from the operation of the Partition Resolution.

2 See below, p. 50.

37

Concerned then, as we are, with a question of title, the normal procedure is to trace the chain of title back from the present claimant to a holder whose rights were unquestioned.

If there is no defect in the chain, the present claim is deemed valid.

In scrutinizing the basis of Israeli title to the New City it is unnecessary to go farther back than the period of Ottoman rule which ended de facto in 1917. The transfer of Ottoman sovereignty over Palestine to the Principal Allied and Associated Powers was confirmed in the Treaty of Lausanne, 1923.' In the meantime, the Powers had in effect vested their rights in the League of Nations, to be exercised in fulfilment of the objects of the Mandates System.' As indicated earlier, the precise location of sovereignty over Palestine during the period of the Mandate is difficult to specify, but at any rate all the attributes relevant for present purposes, including the right to dispose of territory, could be exercised only with the consent of the Council of the League.

What happened when the League of Nations ceased to exist? We have the authority of the International Court of Justice for the proposition that after 1946 the status of a mandated territory could only be altered with the consent of the General Assembly of the U.N. This suggests that at least part of the League's interest in the sovereignty previously vested in it and the Man­datory had, as a result of the events of 1945-1946, devolved upon the U.N. If this is correct, what happened to sovereignty in Palestine as a result of the adoption of the Partition Resolution?

One thing is clear-namely that the United Kingdom there­upon completely dropped out of the picture. This loss of any vestige of participation in the title to Palestine was inherent in giving effect to the British wish to be relieved of the obligations of the Mandate.

There remains the question of what happened to the residual rights (such as they may have been) of the U.N. At this point further examination of the chain of title becomes so complex and speculative-and the consistent pursuit of each theory diverges so much from the material facts and the terms of the

'See above, p. 13. a

2 Ibid.

8

relevant instruments-that it is questionable whether the investi. gation is worth maintaining.

There are, of course, a number of theories which one could examine. One possibility is that the U.N. conveyed its residual rights to the proposed Arab and Jewish States respectively, but

retained its interest in the area of the proposed international City of Jerusalem. There are, however, a number of difficulties about this approach. An important one is that the language of the Partition Resolution clearly does not cover this theory. There is no recital of the U.N's interest; there are no words which effectively establish the two States; there is no reservation

of rights over the area of the international City.     Instead, the relevant operative parts of the Resolution consist of the following paragraphs:

"The General Assembly

Takes note of the declaration by the Mandatory Power that it plans to complete its evacuation of Palestine by lst August, 1948;

Recommends to the United Kingdom, as the mandatory Power for Palestine, and to all other Members of the United Nations the adoption and implementation, with regard to the future Government of Palestine, of the Plan of Partition with Economic Union set out below:

Requests that

..    ..    ..    ..    ..    ..    ..    ..    ..

(c) The Security Council determine as a threat to the peace, breach of the peace or act of aggression, in accordance with Article 39 of the Charter, any attempt to alter by force the settlement envisaged by this resolution;

..    ..    ..    ..    ..    ..    ..    ..    .

Calls upon the inhabitants of Palestine to take such steps as may be necessary on their part to put this plan into effect;

Appeals to all Governments and all peoples to refrain from taking any action which might hamper or delay the carrying out of these recommendations . . ."

None of this reflects an intention to convey rights, conditionally or otherwise.

A second reason why it would be difficult to treat the Partition Resolution as the conveyance of the U.N.'s rights is that we then run into insuperable difficulties when seeking to 

39 

reconcile the continuance of the Resolution as an effective legal instrument with the facts as they eventually unfolded.' We are left with so many important unanswerable questions. For example, if the Partition Resolution conveyed sovereignty to the Arab and Jewish States, what was the effect upon that transfer of the rejection of the Resolution by the Arab States? Was the proposal for an Arab State severable from the proposal for a Jewish State? Was the proposal for an international Jerusalem severable from the creation of the two new States? Or did the grant of sovereignty to the Arabs lapse while that of Israel remained effective? In any case, how can the U.N.'s silence regarding the retention of such (if any) of its rights as did not pass be reconciled with its complete silence on this aspect of the matter for 20 years?

One can contemplate various other theories about the orderly devolution of sovereignty in Palestine. One can even examine the implications of theories about the location of sovereignty in mandated territories other than the one adopted above as the starting point for this discussion, namely, that sovereignty was divided between the League and the Man­datory. ^z                But none of these approaches provides a fully satis­factory answer to the question of sovereignty in Palestine after 1948.

It thus becomes appropriate to take note of the possibility that a territory may not have a sovereign. In such circumstances^, sovereignty is said to be in "suspense." Or, to put it another

1. Even within the Security Council there was a divergence of views upon the effect of _thi_s R_esolution. In December 1948 the Soviet view was stated m the Security Council in the following terms:

"The U.S.S.R. . . . maintains ... that the basis for the _creation and the existence of the State of Israel and of an Arab State in Palestine is the General ­Assembly resolution of 29th. November, 1947. That resolution is an inter­national legal document _entitling the State of Israel and the Arab State of Palestine to their creation and existence, and nobody-except, of course, the General Assembly-has a right to revoke it …

Modification is, of course, possible, but that is the affair of the State of Israel and not of those who are trying by force to deprive  it of territory which is legally its own ... " (S.C.O.R., 3rd Year, No. 129, 385th mtg., 17th Dec. 1948, pp. 28-29).

On the other hand, in the same debate, the Canadian representative said:

                “We regard the resolution of the General Assembly as having the force of a recommendation, and we do not consider the settlement, which we hope will emerge soon in Palestine, need conform precisely to any resolution of the General Assembly." (Ibid., P. 24).

2 For the summary statement of the different views, sec: OPpenhcim's International

Law, vol. I (8th ed., 1955), p. 222, n. 5.

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way, there arises a lapse in or vacancy of sovereignty.            Naturally, cases of this kind are rare-but the United Kingdom has gone on record in acknowledging its possibility. In 1955, in reply to a Parliamentary question about the legal aspects of the situ­ation in the South-East China Coast, the reply was given that "Formosa and the Pescadores are therefore, in the view of Her Majesty's Government, territory the de jure sovereignty over which is uncertain or undetermined."' Subsequently, the British Government applied the same concept quite specifically to Palestine-in considering the position of the Gaza strip which had been occupied by Egypt in 1948. On 14th March, 1957, the Foreign Secretary said: "The facts about the Gaza strip seem to me to be these. No country has legal sovereignty ..." 2

Once the possibility of a vacancy or vacuum in sovereignty is recognized, then the situation in Palestine in 1948 is one which can readily be seen in such terms. Whatever may have been the notional intention of the General Assembly at the moment of the adoption of the Partition Resolution on 29th November, 1947, the early British withdrawal, ³ the Arab rejection of the Resolution, the creation of the State of Israel and the entry into Palestine of the neighbouring Arab States with a view to crushing Israel, all led to a situation of such juridical confusion as to exclude any tracing of an orderly devolution of sovereignty.'

But if there was, upon the termination of the mandate, a sovereignty vacuum in Palestine, the large question arises of how it could validly be filled.    The suggestion that there was a vacuum of sovereignty does not imply that Palestine became at the end of the mandate a terra nullius, a land owned by no-one

'House of Commons Debates, vol. 536, Written Answers, col. 159, 4th Feb. 1955. See also E. Lauterpacht, "Contemporary Practice of the United Kingdom," International and Comparative Law Quarterly, vol. 5 (1956), p. 414. The answer was repeated in House of Lords Debates, vol. 212, col. 498, 13th Nov., 1958.

2 House of Commons Debates, vol. 566, col. 1320.                For comment, see E. Lauter­pacht, op. cit., vol. 6 (1957), p. 513.

3 This had originally been planned for the end of July, 1948, but in fact took place on 14th May, 1948.

4 It is possible, of course, that the sovereignty vacuum in Palestine at the end of the Mandate was nothing more than a reflection of a much longer standing lapse of sovereignty going back to the date when the territory was placed under Mandate. This thought is suggested by the following observation of Sir Arnold (now Lord) McNair in his Separate Opinion on the International Status of South-West Africa:"Sovereignty over a Mandated Territory is in abeyance; if and when the inhabi­tants of the territory obtain recognition as an independent State, as has already happened in the case of some Mandates, sovereignty will revive and vest in the new State." (I.C.J. Reports 1950, p. 150).

41

in which anyone was free to stake a claim by simply combining physical presence with an assertion of title. l Slight though the legal force of the Partition Resolution might be, it is difficult to conceive of it as having opened up Palestine to the law of the jungle, to be carved up on the basis of first come first served. 

In other words, it seems reasonable to suggest that sovereignty could only be acquired by lawful action. Indeed, the scope for the right-creating effect of illegal acts in international law is exceedingly restricted; and there seems to be general consensus to-day as to the validity of the maxim ex injuricr ius non oritur -no right can be born of an unlawful act.

It becomes necessary, therefore, to consider the legality of the various demonstrations of physical power in Palestine in the period immediately following the end of the Mandate.            We must accordingly attempt an assessment of the conduct of the neighbouring Arab States and of Israel at that time.

Of the Arab States, Jordan was not a member of the U.N. and did not become one until 1955. Israel did not become a member of the U.N. until 1949.   But few will be likely to dissent from the proposition that the legality of the conduct of all con­cerned-even in the period before Jordan and Israel became members of the U.N.-fell to be tested by reference to the Charter of the ll.N. Technically, this instrument does not bind States not parties to it, but its basic principles have generally been regarded as reflecting fundamental legal obligations of all States, whether or not formally members of the U.N.    Indeed, Article 2 (6) of the Charter both acknowledges and asserts this superior juridical authority for the principles of the Charter by providing that

"the Organisation shall ensure that States which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security."

The principle of the Charter which is most relevant in this connection is Article 2 (4):

"All Members shall refrain in their international relations from the threat or use of force against the territorial integrity

'See, for a similar view, Blum, "The Missing Reversioner: Reflections on the Status of Judea and Samaria," Israel Law Review, vol. 3 (1968), at p. 283.

42

or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations."

It will be recalled that immediately after the termination of the Mandate, the forces of Egypt, Iraq, Jordan, Lebanon and Syria crossed the borders of Palestine with the declared object of preventing by force the implementation of the Partition Resolution.            Some of the evidence of the nature and object of this attack has already been mentioned. l            To this may be added a reference to an explanatory footnote appended to the text of the Partition Resolution as it is printed in an official British publication-the British and Foreign State Papers. The note in question, after speaking of the establishment of Israel on 14th May, 1948, continues as follows: "On the following day Israel was simultaneously invaded by the armed forces of Egypt, Trans­jordan, Iraq, Syria and the Lebanon. Hostilities continued until January 1949." 2

This invasion was entirely unlawful. True, Article 2 (4) of the Charter prohibits primarily "the threat or use of force against the territorial integrity or political independence of any State." And it might, therefore, be argued that in so far as the Arab States were moving into the part of Palestine allotted to the proposed, but as yet uncreated, Arab State, they were not infringing the territorial integrity of any State. Moreover, it could be said, from the Arab point of view, that as they did not recognize Israel as a State, the violation of the boundaries of the territory allocated to her was no breach of their obligations under Article 2 (4).

Arguments of this kind, however, carry no great weight when it is appreciated that, as was the fact, the invading Arab States did not intend to, and did not, limit their incursion to the territory of the proposed Arab State and, moreover, that the prohibition of attack upon "States" is not limited to States which have been recognized by the attacker but extends to any State which enjoys a de facto existence-as Israel undoubtedly did and was recognized by others as doing.

1 See above, p.p. 21-22.

2 See British and Foreign State Papers, vol. 154 (1949--II), p. 384, n. 1.

43 

Another Arab justification of their attack upon Israel in 1948, and indeed of the continuance of their attitude of bel­ligerency to Israel ever since, is this: that the true aggressor is Israel, which, by the very fact of its establishment and existence, attacks the political independence and territorial integrity of the embryonic State comprising the Arab people of Palestine;' and that the presence of the forces of neighbouring Arab States is warranted as a measure of collective self-defence pursuant to Article 51 of the Charter. The difficulty with this argument is that it invites the assumption that Israel did not, does not and cannot exist as a State with its own right to survival-an assump­tion which is universally rejected by all save the Arab States.

If, then, there was no legal warrant for the Arab invasion of Palestine in 1948 aimed at the destruction of Israel, two con­sequences follow.  First, by reason of the illegality of the conduct,

no Arab State could rely upon its physical occupation of any part of Palestine as a valid foundation for filling the sovereignty vacuum. Thus Jordan was not entitled to claim any of the areas west of the river Jordan (a matter of special relevance in connection with Jordan's position in the Old City of Jerusalem -of which more will be said later) and Egypt was not entitled to assert sovereignty over the Gaza Strip. ²

The second consequence is that, of course, Israel when attacked became entitled to defend herself. This is a fundamental right of States in international law, and the restatement of the right in Article 51 of the Charter of the U.N. in terms which acknowledge the right of self-defence if an armed attack occurs against a Member of the U.N., does not really limit its generality. 

In estimating the proper geographical limits of the develop­ment of Israeli self-defensive measures, it is necessary to recall the nature of the attack launched against the Jewish people of Palestine. The attack was not simply an attack upon the Jewish people in the area of Palestine allocated to the Jewish State;

1 For a statement of this view, see Colloque de Juristes Arabs sur la Palestine, 1967, La Question Palestinienne (1968), p. 115.

2 See p. 41 above for the British attitude to sovereignty over the Gaza Strip-an attitude which, though barely elaborated, may well have been founded upon considerations similar to those examined here. On the other hand, on 27th April, 1950, the British Government announced its recognition (subject to the exclusion of Jerusalem) of the Union with the rest of Jordan of the West Bank areas occupied in 1948. See House of Commons Debates, vol. 474, cols. 1137-1139.

44

it was an attack upon all Jewish settlement in Palestine, where­ever situate, and including especially the Jews in the area set aside for the international City of Jerusalem. At that time, acceptance of a territorially internationalized Jerusalem was no part of Arab thinking. Their aim was to drive the Jews from Jerusalem no less than from the other parts of Palestine

This being so, it is clear that the defensive measures adopted by the Israeli forces could not be limited to the area allocated to Israel in the Partition Plan. The Arabs by attacking the Jews outside the area of the Jewish State and by forcibly rejecting the internationalization of Jerusalem were themselves responsible for the first Israeli expansion beyond the Partition boundaries. By provoking this Israeli movement outside the boundaries of the Jewish State, the Arabs themselves legitimized the process by which Israel filled the vacancy in sovereignty in the areas which, in order to save their kin, the Israeli forces were obliged to defend and therefore to occupy.

It is on this basis-the legitimate filling of the sovereignty vacuum-that the legality of Israeli presence in the New City of Jerusalem in the period prior to the fighting of June 1967 may be seen as resting.

When the situation is analyzed in this way, the Armistice Agreements of 1949 fall into their proper place. Quite under­standably, each of these Agreements concluded between Israel and her neighbours contains a provision that the armistice lines therein laid down shall not prejudice the future political settle­ment. t It would not, therefore, be accurate to contend that questions of title, as opposed to temporary rights of occupation, depend upon the Armistice Agreements. Questions of sovereign­ty are quite independent of the Armistice Agreements. Thus, if Israel had, prior to the Armistice Agreement with Jordan, filled the sovereignty vacuum in any particular place, such as the New City of Jerusalem or Tel Aviv, without committing any unlaw­ful act, then her title to that place is perfected and exists apart from the Armistice Agreements.

The important function of the Armistice Agreement was to add to the general prohibition upon the use of force prescribed by Article 2 (4) of the Charter of the U.N., the specific further

1 See Article If (2) of the Israel-Jordan Armistice Agreement, 1949 (U.N.TS., vol. 42, p. 304).

45

prohibition contained in the armistice. 2 This restricted even further the limits within which the Parties might lawfully use force and thus validly claim to step into the shoes of the defunct sovereign. It follows, then, from all that has been said in this section, that by filling the sovereignty vacuum Israel acquired a valid title to the following parts of Palestine:

(i)                  those parts allotted to the Jewish State under the Par­tition Plan, because Israel could not, and did not, commit any infringement of anyone else's rights in perfecting its title to those parts; and (ii)                those parts of Palestine outside the area allotted to the Jewish State, which Israeli forces were compelled to occupy by way of self-defensive measures during the fighting of 1948-49. These parts include the New City of Jerusalem.

It may be said in passing that the U.N. appears to have acquiesced in this conclusion, primarily because over the last twenty years it has not chosen to challenge it. This is so even in relation to the New City of Jerusalem. 2

(b) THE OLD CITY

(i) JORDAN'S POSITION IN THE OLD CITY PRIOR TO JUNE 1967

Jordan's legal position in the Old City from 1948 to 1967 can be dealt with quite briefly, since all the relevant legal con­siderations have been set out in the previous section. Quite

1 Article I of the Israel-Jordan Armistice Agreement of 3rd April, 1949, (U.N.T.S., vol. 42, p. 304) provided as follows:

"With a view to promoting the return of permanent peace in Palestine and in recognition of the importance in this regard of mutual assurances concerning the future military operations of the Parties, the following principles, which shall be fully observed by both Parties during the armistice, are hereby affirmed: l. The injunction of the Security Council against resort to military force in the settlement of the Palestine question shall henceforth be scrupulously res­pected by both Parties.

2. No aggressive action by the armed forces-land, sea, or air-of either Party shall be undertaken, planned, or threatened against the people or the armed forces of the other …"

Article III, 2, provided:

"No element of the land, sea or air military or para-military forces of either Party, including non-regular forces, shall commit any warlike or hostile act against the military or para-military forces of the other Party_.... or shall advance beyond or pass over for any purpose whatsoever the Armistice Demar­cation Line set forth in articles V and VI of this Agreement . . ."

2 See above, p.p. 23-36.

46

simply, Jordan's situation in the Old City is the converse of Israel's position in the New. There was never any legal justifi­cation for Jordan's entry into the Old City. In contrast with what Jordan did, Israel had not, by rejecting the plan for the internationalization of Jerusalem and moving up forces to expel the citizens of the opposing side, created a condition warranting Jordanian self-defensive measures. Thus Jordan's occupation of the Old City-and indeed of the whole of the area west of the Jordan river-entirely lacked legal justification; and being defective in this way could not form any basis for Jordan validly to fill the sovereignty vacuum in the Old City. Jordan's pro­longed de facto occupation of the Old City was protected ex­clusively by the Armistice Agreement which prohibited Israel from initiating action to displace Jordan; and Jordan's occupa­tion could last no longer than the protection thus afforded. This bulwark was abandoned when Jordan destroyed the Armis­tice Agreement by its attack on Israeli Jerusalem on 5th June, 1967.

Moreover, this same Armistice Agreement affirms in Article II its recognition (1) that "no military or political advantage should be gained under the truce ordered by the Security Council" and (2) that no provision of the Agreement "shall in any way prejudice the rights, claims and positions of either Party hereto in the ultimate peaceful settlement of the Palestine question." The Agreement thus effectively precludes Jordan from asserting any sovereign right to the Old City on the basis of twenty years of effective occupation. 1 Its provisions negative the right­ creating effect which the facts might otherwise have had.

(ii) ISRAEL'S POSITION IN THE OLD CITY SINCE JUNE 1967

This brings us to the question of Israel's legal rights in the

1 In this connection it is worth noting the reaction of the Arab League to the Jordanian attempt to annex the West Bank areas of Palestine, including Jerusalem, in April 1950. On 16th May, 1950, the Political Committee of the Arab League decided unanimously that the annexation of Arab Palestine by the Jordan Govern­ment violated the League's resolution of 12th April, 1950, which prohibited the annexation of any part of Palestine.                Egypt, Saudi Arabia, Syria and Lebanon voted on 16th May, 1950, for the expulsion of Jordan from the Arab League. However, after Iraqi mediation, a compromise was reached under which Jordan declared that the annexation was without prejudice to the final settlement of the Palestine issue. This union was recognised by the British Government subject to the reservation that "pending a final determination of the status of [the Jerusalem area] they are unable to recognise Jordan sovereignty over any part of it." (See Whiteman's Digest of International Law, vol. 2, pp. 1163-1168).

47

Old City in the period subsequent to its occupation by Israeli forces in June 1967. It follows from what has been said above that the sovereignty vacuum arising in the Old City at the end of the Mandate was not filled by Jordan, whose status there was one of de facto occupation protected by the Armistice Agreement. Once Jordan was physically removed from the Old City by legitimate measures-as the Israeli reactions to the Jordanian attack on 5th June, 1967, undoubtedly were-then the way was open for a lawful occupant to fill the still subsisting vacancy

That Israel would be entitled to do this, there seems-on the reasoning here set out-to be little doubt. What is less certain is whether in strictly legal terms she has in fact done so. Although, in political terms, Israeli control over the Old City has been repeatedly and emphatically asserted, and although she has declared that her position there is "not negotiable," she has not expressly and in so many words claimed "sovereignty" over the Old City. Instead she has spoken of re-unification and of reuniting the administration of the two parts of the City.

Still, if, as is suggested, the larger measures would be justifi­able, then the lesser measures certainly are. And one has then only to ask on what basis the General Assembly could have asserted its view on 4th July, 1967' that the Israeli measures are invalid; and what effect, if any, has to be ascribed to this assertion.

To dispose of the question of effect first, the answer is simply that the Resolution of 4th July, 1967, is legally quite ineffective. Leaving aside for the moment the fact that the Resolution appears to have been formulated on the basis of a misconception of the legal position, the fact remains that General Assembly resolutions do not, in the absence of special circum­stances which do not characterize the present situation, ² create legal obligations for their addressees. Consequently, unless the Israeli measures are invalid for other reasons, the Resolution cannot make them so or require Israel to rescind them.

But are there in truth any reasons-the mere contents of the Resolution apart-for denying validity to the Israeli measures? They are not the acts of an aggressor as the Assembly by its own

1 Resolution 2253 (ES-V). See above, p. 34.

² 0n the limits of the binding force of resolutions of the General Assembly, see Johnson in British Year Book of International Law,  vol. 32, p. 97. 

48

rejection on 4th June of the Soviet and Albanian draft resolutions has so clearly indicated ¹ and cannot therefore be condemned on that ground. Perusal of the General Assembly debates suggests that the thought of Members at the time may have been woven of two separate strands. (i) certain ideas about the relevance of the law of belligerent occupation and (ii) some maxims about the relationship of force and territorial change.

CONSIDERATIONS OF THE LAW OF BELLIGERENT OCCUPATION

The traditional law of war, developed when there was no legal fetter upon the freedom of States to resort to war, ² contains a chapter on "belligerent occupation." On the assumption that two States are at war with each other in a technical sense, ³ there exist rules which govern the rights and duties of each belligerent in relation to the occupation by it of its enemy's territory. One of these rules involves the distinction between "occupation" and "annexation" of enemy territory. "Occupation" is mere control of enemy territory by force of arms for so long as the belligerent is able to maintain his position or until he voluntarily gives it up. It involves no denial of the de jure rights of the regular sovereign, only a temporary, though possibly prolonged, de facto suspension of the exercise of those rights. "Annex­ation," on the other hand, involves an attempt by the occupant to convert his physical right of occupation into a legal title to the territory. In other words, he seeks to change "sovereignty" over the territory from his enemy to himself.

Having drawn this distinction between "occupation" and "annexation" the traditional law permitted the former but pro­hibited the latter. The rule was that pendente bella, that is, for so long as the technical condition of war lasted, a belligerent

'See above, p. 11, n. 1.

'That is, prior to the Kellog-Briand Pact, 1928, in which the Parties undertook not to have recourse to war for the settlement of their disputes. This and the Charter of the U.N. are the two major instruments which have effectively out­lawed resort to war and the use of force. 'It should always be recalled that so long as "war" was lawful, i.e. before 1928, a distinction could be drawn between, on the one hand, "war" as a technical legal status which States were free to create and which might or might not be associated with hostilities and, on the other, "hostilities" or "fighting" which could, of course, occur even in the absence of a formal state of war. To-day, it is doubtful whether a formal state of war can ever validly arise; and the operation of the important humanitarian rules of warfare, such as the 1949 Geneva Con­ventions, has been made independent of the existence of any technical state of war. 

49

was not entitled to annex enemy territory which he might have occupied. A transfer of title to territory in consequence of war could take place only as a result of the cession of the territory in the treaty of peace. 1

Now it would seem that, at any rate for some States, con­siderations of this nature entered into the formation of their attitude to the General Assembly Resolution of 4th July, 1967, declaring the Israeli measures in the Old City of Jerusalem invalid. Thus in the debate on the resolution Lord Caradon said, on behalf of the United Kingdom, that the Israeli measures were invalid because they went beyond the competence of an occupying power as defined by international law.2

The correctness of the British approach as thus expressed rests upon one major assumption which appears to have been wrongly made. The assumption was that Israel had in law formally annexed the Old City of Jerusalem. For this view there is no evidence. Whatever may be the generally held opinion as to the political future of the City, the step of formal incorporation has yet to be taken. The point was made clearly by the Israeli Foreign Minister in a letter received by the Secretary-­General of the U.N. on 10th July, 1967:

"The resolution presented on 4th July by Pakistan and adopted on the same day evidently refers to measures taken by the Govern­ment of Israel on 27th June, 1967. The term "annexation" used by supporters of the resolution is out of place. The measures adopted relate to the integration of Jerusalem in the adminis­trative and municipal spheres, and furnish a legal basis for the protection of the Holy Places of Jerusalem." ³ The measures in question were three in number: the Law and Administration Ordinance (Amendment No. 11) Law, 1967,

1 Though this was the rule, there were occasions on which it was not always honoured. For example, in 1878 the United Kingdom was allowed by Turkey to occupy and administer Cyprus. Sovereignty over the island remained in Turkey. When the First World War broke out, with Turkey and Britain on opposite sides of the line of war, Britain remained in control of the island, but the existence of the state of war put Britain in the position of a belligerent occupant. Nevertheless, in 1914 the United Kingdom unilaterally purported to annex the island. This was an unlawful act. Ultimately the illegality was cured when Turkey recognised the annexation in the Treaty of Peace.

2 See A/PV. 1553, p. 7.

3 See A/6753, p. 3. Reprinted in International Legal Materials, vol. 6 (1967), p. 846.

  

50

and accompanying Order, which extended the operation of Israeli law, jurisdiction and administration to the eastern part of Jerusalem; the Municipal Corporations Ordinance (Amendment) Law 1967, which empowered the Minister of the Interior to enlarge the area of any municipality by the inclusion of an area designated under the first measure; and the Protection of Holy Places Law, 1967. None of these instruments constituted a formal annexation of the Old City.

Once it is seen that there has been no formal annexation of the Old City, and that the measures adopted by Israel are largely consistent with the technical maintenance of a condition of belligerent occupation, the objection expressed by the United Kingdom falls to the ground.

Yet to have met the British point on its merits, as has been done here, should not be read as an acknowledgment of the correctness of the supposition that the traditional law of belligerent occupation is as such applicable to the Israeli position in Jerusalem. It must suffice for present purposes to indicate that any such supposition makes certain assumptions about the nature of the conflict between Israel and her neighbours, about the character of the Jordanian presence in Jerusalem and about the duration of the applicability of the rules of occupation which are very far from being beyond controversy in this context.

FORCE AND TERRITORIAL CHANGE

The reference to the law of belligerent occupation has necessitated the introduction into the present study of con­siderations which look technical even in the context of a legal debate. This does not make them bad, but it does warrant returning to the discussion on the basis of the general assumption that Israel has in effect annexed the Old City of Jerusalem.

When approached thus, the ground on which the legality of the Israeli actions has been denied is the proposition that terri­torial change as a result of the use of force is impermissible.

This proposition, stated in this unqualified form-and it is only in an unqualified form that those who use it can make it apply to the Jerusalem situation-is an erroneous distortion of a well-known and well-established principle. The correct principle has already been mentioned in this paper-ex injuria jus non oritur, out of a wrong no right can arise. Or, relating the

51

proposition more closely to the situation, territorial change can­not properly take place as a result of the unlawful use of force. But to omit the word `unlawful' is to change the substantive content of the rule and to turn an important safeguard of legal principle into an aggressor's charter. For if force can never be used to effect lawful territorial change, then, if territory has once changed hands as a result of an unlawful use of force, the illegitimacy of the position thus established is sterilized by the prohibition upon the use of force to restore the lawful sovereign. This cannot be regarded as reasonable or correct 

Moreover, it does not accord with the law as reflected, for example, in the discussions of the U.N. Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States. Among the principles con­sidered by this Committee is the principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the purposes of the U.N. Now it is significant to observe that in none of the various proposals for the elaboration of this principle advanced in this Committee at its second session held in July-August 1967, in the immediate aftermath of the June war, was the proposition about the consequences of the use of force ever put forward in the stark and unqualified terms upon which the critics of the Israeli position have been relying.

Perhaps it is unnecessary to do more than examine the joint proposal made by a number of States which included some of Israel's most vocal and active opponents, such as Algeria, Syria and the United Arab Republic. This draft,' after re­stating the basic prohibition on the use of force, then proposes that

     "5. No threat or use of force shall be permitted to violate the existing boundaries of a State and any situation brought about by such threat or use of force shall not be recognized by other States.” 2

This looks, of course, like the statement of the proposition in an unqualified form. But it is followed in the very next para –

1 A/AC.125/L.48. See the Report of the Committee to the 22nd Session of the General Assembly, A/6799, 26th Sept. 1967, para. 26.

2 Italics supplied.

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graph by the quite crucial qualification that "the prohibition of the use of force shall not affect ... the right of States to take, in case of armed attack, measures of individual or collective self­-defence in accordance with Article 51 of the Charter …"¹ Yet, once this qualification is accepted (and the facts of the fighting in June 1967 certainly bring Israel within its ambit), it quite undermines the validity of the loose assertion of the formula so readily enunciated in the General Assembly.

It may be of course that a number of Members of the U.N., while not seeking to advance the proposition except in its full and qualified form have been taking the view that Israel's action does not fall within the conception of permissible self-defence. Yet if her action was not self-defensive, it could only have been aggressive; and the General Assembly, by a most impressive majority, was unwilling to reach this conclusion. ²

1 Italics supplied

2 See above, p. 11, n. 1.

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CHAPTER IV

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. 

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,

59

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 3which, 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

1. 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 THE 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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APPENDICES 

The texts which appear below show that for nearly twenty years there have existed firm proposals, involving a measure of U.N. supervision, on the basis of which Israel could assume clear international commitments in connection with the Holy Places. The Israeli draft agreement of 1949 (Appendix I) may not in all its details represent what Israel would to-day put forward, but it and the Swedish proposal represent two ways in which the universal interest in Jerusalem could be recognized. The Swedish proposal (Appendix II), though never put to the vote (see p. 31 above), was nonetheless in its essential elements basically acceptable to the United Kingdom, the U.S.A. and Uruguay, as is shown by the terms of their proposed amend­ment (Appendix III).

The texts are reprinted here because readers without access to libraries with U.N. materials may not otherwise readily be able to find them.

APPENDIX I

ISRAEL: DRAFT RESOLUTION

U:N. doc. A/AC.31/L.42(Original text: English)

 (25 November 1949)

The General Assembly

1. Recalling its successive resolutions which expressed the concern of the United Nations in Jerusalem by reason of the presence therein of Holy Places, religious buildings and sites;

2. Noting that the Declaration of Independence of Israel of 14 May 1948, provides for the protection of the Holy Places of all religions;

3. Desiring to maintain the existing rights in the Holy Places, and in particular those rights and practices in force 14 May 1948, and thus to give effective and practical expression to that concern,

4. Resolves therefore:

(a) To authorize the Secretary-General to sign on behalf of the United Nations an agreement (as attached) with the State of Israel relating to the supervision and protection of the Holy Places in Jerusalem;

(b) To request the Secretary-General to report to the fifth regular session on progress made with respect to the signature and implementation of this agree­ment.

ANNEX

TEXT OF DRAFT AGREEMENT BETWEEN THE UNITED NATIONS AND ISRAEL

Article 1

Definitions

Section 1

In this Agreement:

(a) The expression "The Holy Places" means those places, buildings and sites in Jerusalem which were recognized on 14 May 1948 as Holy Places and any other places, buildings or sites which may subsequently be considered as such by agreement between the parties;

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(b) The expression "United Nations" means the international organization established by the Charter of the United Nations;

(c) The expression "Secretary-General" means the Secretary-General of the United Nations;

(d) The expression "Jerusalem" means the part of Jerusalem now under Israel control.

Section 2

The parties shall establish by mutual agreement a detailed list indicating what were the Holy Places in Jerusalem on 14 May 1948 for the purposes of this Agreement, and in the same way may amend such list by additions or by deletions.

ARTICLE 2 Maintenance of existing rights 

Section 3

The free exercise in Jerusalem of all forms of worship in accordance with the rights in force on 14 May 1948, subject to the maintenance of public order and decorum, shall be guaranteed by law and effectively secured by administrative practice in conformity with the Declaration of Independence of Israel.

ARTICLE 3 Preservation of the Holy Places

Section 4

The Holy Places in Jerusalem shall be preserved, and no act shall be permitted which may in any way impair their sacred character. If at any time it appears to the Government of Israel that any Holy Place, religious building or site is in need of urgent repairs, it may call upon the religious community or communities concerned to carry out such repairs. The Government may carry out such repairs itself at the expense of the religious community or communities concerned, if no action is taken within a reasonable time.

Section 5

The Government of Israel shall take all reasonable steps to ensure that the amenities of the Holy Places in Jerusalem and their immediate precincts are not prejudiced.

ARTICLE 4 Access to the Holy Places

Section 6

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.

Section 7

Subject only to requirements of national security, public order and decorum, health, liberty of access, visit and transit to the Holy Places in Jerusalem shall be accorded to all persons without distinction in respect of nationality in conformity with the rights in force on 14 May 1948.

Section 8

The Secretary-General and the Government of Israel shall, at the request of either of them, consult as to methods of facilitating entrance into Israel, and the use of available means of transportation, by persons coming from abroad who wish to visit the Holy Places. This shall not prevent the Government of Israel from making suitable arrangements directly or with other States for any of these purposes. 

Section 9

Nothing in this Agreement shall affect in any way the application of laws and regulations from time to time in force in Israel regarding the entry of aliens, or to confer any right of entry into Israel otherwise than in accordance with such laws and regulations, or any modifications thereof, and with the terms of any inter­national obligations assumed by Israel in this regard. 

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ARTICLE 5

Protection of Holy Places

Section 10

(a) The Government of Israel shall exercise due diligence to ensure that the sacred character of the Holy Places in Jerusalem is not disturbed by the un­authorized entry of groups of persons from outside or by disturbances, and shall cause to be provided such police protection as is required for these purposes.

(b) If the Secretary-General is of opinion that additional police protection is required for any of the Holy Places in Jerusalem, or for any area of Jerusalem in which a number of Holy Places are situated within a reasonable degree of propinquity, he may request the Government of Israel to increase the number of policemen regularly stationed for the protection of such Holy Places or area.

ARTICLE 6

Law and authority in relation to the Holy Places

Section I1

(a) The law of Israel including regulations and by-laws made by the local authorities shall apply to and within the Holy Places in Jerusalem.

(b) The Israel Courts shall have jurisdiction over acts done and transactions taking place within the precincts of the Holy Places.

ARTICLE 7

Public services

Section 12

The Government of Israel will exercise the powers which it possesses to ensure, at the request of the Secretary-General, that the Holy Places shall be supplied on equitable terms with the necessary public services, electricity, water, gas, post, telephone, telegraph, transportation, drainage, collection of refuse, fire protection, etc. In case of any interruption or threatened interruption of any such services, the Government of Israel will consider the needs of the Holy Places to the extent practicable, and subject to the requirements of security and the maintenance of essential services and supplies.

Section 13

Nothing in this Agreement shall be interpreted as restricting the rights of the Government of Israel or any local authority, or any of their agencies or sub­divisions, officials or employees, with regard to entry into any Holy Place in Jerusa­lem for the purpose of enabling them to inspect repair, maintain, reconstruct and relocate utilities, conduits, mains and sewers, which may run over, through, or under such Holy Places, religious building or site.

ARTICLE 8

Exemptions

Section 14

No form of taxation shall be levied in respect of any Holy Place in Jerusalem which was exempt from such taxation on 14 May 1948. No change in the incidence of any form of taxation shall be made which would discriminate between the owners and occupiers of Holy Places, religious buildings or sites in Jerusalem, or would place such owners and occupiers in a position less favourable in relation to the general incidence of that form of taxation than existed on 14 May 1948.

ARTICLE 19

United Nations representative

Section 15

The Secretary-General and the Government of Israel shall settle by agreement the channels through which they will communicate regarding the application of the provisions of this Agreement and other questions affecting the Holy Places in Jerusalem, and may enter into such supplemental agreements as may be necessary to fulfil the purpose of this Agreement.

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Section 16

Israel hereby agrees that if the Secretary-General so requests he may appoint and send a representative to Israel to exercise the rights and duties conferred upon the United Nations by this Agreement. In making such appointment the Secretary-­General shall have due regard for the accepted international custom relating to the appointment of diplomatic representatives. Such representative may establish his headquarters in Jerusalem or in some other place agreed between him and by the Government of Israel, and shall be accredited to the President of Israel. For the duration of his mission the Convention on the Privileges and Immunities of the United Nations approved by the General Assembly of the United Nations on 13th February 1946, as acceded to by Israel, shall be applicable to him as well as to his staff and to the buildings he occupies, all as is more particularly laid down in the said Convention on the Privileges and Immunities of the United Nations, it being understood that nothing in this agreement shall imply the extension of the provisions of the said Convention to any Holy Place. 

Section 17

The functions of the representative of the Secretary-General shall be limited to matters pertaining to the application and implementation of this Agreement; in particular it is understood that nothing shall authorize the United Nations or the Secretary-General or his representative, to intervene in matters which are essentially within the domestic jurisdiction of the State of Israel, or shall require the Government of Israel to submit any such matters to settlement under the Charter of the United Nations or under this Agreement.

ARTICLE 10

Settlement of disputes

Section 18

Any dispute between the United Nations and Israel concerning the interpre­tation or application of this Agreement, or of any supplemental agreement, in­cluding any dispute as to whether any place in Jerusalem was recognized on 14 May 1948 as a Holy Place which is not settled by negotiation, or other agreed mode of settlement, shall be referred for final decision to a tribunal of three arbitrators, one to be named by the Secretary-General, one to be named by the Minister far Foreign Affairs of Israel, and the third to be chosen by the two, or if they should fail to agree upon a third, then by the President of the International Court of Justice.

Section 19

Subject to the provisions of section 10, where any dispute concerning a Holy Place, religious building or site in Jerusalem arises between two or more religious communities, or sections of communities, such dispute shall, in the first instance be referred to the Government of Israel which may, in reaching its decision, seek the guidance of the United Nations. If the decision of the Government of Israel does not settle the dispute, than either Israel or the Secretary-General may refer the matter to the General Assembly.

ARTICLE 11

Final provisions

Section 20

This Agreement shall be construed in the light of its primary purpose to ensure protection of the Holy Places in Jerusalem, which is desirable, in view of the special character of Jerusalem, whose soil is consecrated by the prayers and pilgrimages of the adherents of three great religions.

Section 21

This Agreement shall be brought into effect by an exchange of notes between the Secretary-General, duly authorized pursuant to a resolution of the General Assembly of the United Nations, and the appropriate executive officer of Israel, duly authorized pursuant to appropriate action of the Knesseth.

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IN WITNESS WHEREOF the respective representatives have signed this Agree­ment and have affixed their seals hereunto.

DONE in duplicate, in the English, French, Hebrew and Spanish languages, all authentic, at Lake Success, this .. day of .. in the year one thousand nine hundred and .

APPENDIX 11

SWEDEN: DRAFT RESOLUTION

U.N. doe. A/AC.38/L.63

(Original text: 6nglish)

(5 December 1950)

The General Assembly

Recognizing the unique spiritual and religious interests of the world community in the Holy Land,

Desiring to preserve the peace of Jerusalem,

Considering its resolutions 181 (II) of 24 November 1947, 194 (III) of 11 December 1948 and 303 (IV) of 9 December 1949,

Having regard to the special report of the Trusteeship Council regarding the question of an international regime for the Jerusalem area and protection of the Holy Places (document A/1286),

Considering that it has so far not been possible to carry into effect the resolutions of the General Assembly with regard to Jerusalem and the Holy Places,

Considering that any further delay in ensuring international protection of the spiritual and religious interests of the world community in the Holy Land is undesirable and that therefore, awaiting the taking of final measures, it is approp­riate to take such measures as will henceforward ensure the respect of those interests;

Determining that for the purpose of this resolution:

"Holy Land" means the former mandated Territory of Palestine;

"Holy Places" means those Holy Places and religious buildings or sites which were regarded in Palestine on 14 May 1948 as Holy Places;

"Free Access" means those rights of access and visit to which individuals and religious denominations were entitled on 14 May 1948, together with facilities of transit to and from Holy Places, whether these Holy Places are situated within or outside the territory of the State granting facilities, subject always to the require­ments of public health, public security and decorum;

"Existing rights, immunities and privileges" means such rights, immunities and privileges as existed on 14 May 1948;

"Jerusalem area" means the city of Jerusalem as defined in section B of part III of the plan set out in resolution 181 (II) of the General Assembly adopted 29 November 1947;

"Commissioner" means the United Nations Commissioner appointed under article VI of Section B of the present resolution;

Resolves

A. To invite the governments of the States in the Holy Land to pledge them­selves before the United Nations to:

(a) Observe human rights and fundamental freedoms and in particular freedom of thought, conscience and religion as set forth in article 18 of the Universal Declaration of Human Rights;

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(b) Refrain from any act that would endanger the Holy Places in their territories;

(c) Guarantee to nationals of their States, as well as aliens, without distinction as to nationality, free access to Holy Places in their territories;

(d) Observe and maintain all the existing rights, immunities and privileges as provided in article II of section B of this resolution;

(e) Levy no tax in respect of any Holy Places which are exempt from such taxation on 14 May 1948, and make no change in the incidence of any form of taxation which would either discriminate between the owners and occupiers of different Holy Places or would place such owners and occupiers in a position less favourable in relation to the general incidence of that form of taxation than existed on 14 May 1948;

(f) Maintain and respect the property rights of religious bodies;

(g) Reduce their armed forces in the Jerusalem area in progressive stages with a view to their limitation to normal peacetime requirements as provided in article VIII of section B of this resolution;

(b) Carry out in good faith the obligations and provisions laid down in section B of this resolution, and co-operate fully with the Commissioner in the task imposed on him by this resolution.

B. Lay down, in order to ensure the protection of and free access to the Holy Places and the maintenance of existing rights, immunities and privileges of religious demonstrations, the following articles:

ARTICL I

The Holy Places throughout the Holy Land shall be preserved and no act shall be permitted which may in anyway impair their sacred character.

ARTICLE II

Rights, immunities and privileges of religious denominations with respect to Holy Places, as well as the rights, immunities and privileges of religious bodies with respect to monasteries and missionary, educational and welfare establish­ments now maintained by them, shall be preserved as they existed on 14 May 1948.

ARTICLE III

1. The supervision of the protection of and free access to the Holy Places and the maintenance of the rights, immunities and privileges referred to in article 11, shall be the responsibility of the United Nations.

2. The Commissioner appointed pursuant to article VI shall exercise this supervision on behalf of the United Nations and shall make arrangements with the governments concerned regarding the implementation of the provisions of this resolution.

3. For the Jerusalem area such arrangements shall be subject in particular to the provisions of articles VIII, IX, X, XI and X1I. The Commissioner shall negotiate and conclude agreements with the governments concerned in order to ensure that the appropriate provisions of this resolution are carried into effect also in the Holy Land outside the Jerusalem area. He shall report the results of his negotiations to the Secretary-General of the United Nations.

ARTICLE IV

1. The Commissioner shall draw up an authoritative list of Holy Places which were regarded as such on 14 May 1948. If any question arises as to whether any place, building or site was regarded as a Holy Place on 14 May 1948, the Commissioner shall decide;

2. If any question arises between any religious denominations in connexion with any Holy Place, the Commissioner shall decide on the basis of existing rights;

3. Before taking any decision under paragraph 1 and 2 of this article the Commissioner shall consult with members of the panel of advisers as provided in article XIV. His decision shall be final.

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4. If a place, building or site not regarded as a Holy Place on 14 May 1948 is claimed by a religious denomination to be a Holy Place of such character that it is entitled to enjoy the protection of this statute, the Commissioner may pro­pose to the Government concerned that such a place, building or site be brought under the provisions of this resolution.                In the event of the Commissioner and the government concerned failing to reach agreement, the matter shall be referred to the arbitral tribunal as provided in article XV.

ARTICLE V

Should a visitor or pilgrim or a group of visitors and pilgrims be denied free access to any Holy Place, the government denying access shall inform the Com­missioner of the reasons therefor.

ARTICLE VI

l. There shall be a United Nations Commissioner to be appointed for a period of three years on the nomination of the Secretary-General by a Committee of the General Assembly consisting of the eleven members of the Security Council. This Committee shall decide by a majority of the members present and voting. The Commissioner shall be responsible to the General Assembly and may be dismissed by it. He shall report annually to the General Assembly and may also make special reports to the appropriate United Nations organs whenever he deems necessary. His headquarters shall be the former Government House in Jerusalem.

2. There shall be appointed in the same manner a Deputy Commissioner who shall be subject to the same terms of office, and shall be responsible to the Com­missioner. The Deputy Commissioner shall assist the Commissioner and shall replace him in the event of his absence or disability.

3. The Commissioner and the Deputy Commissioner shall not be selected from among nationals of the State of Israel or of an Arab State or from among residents of the Jerusalem area.

4. The Commissioner shall be authorized to appoint and employ under tempor­ary contracts the auxiliary administrative personnel necessary for the carrying out of his functions.

ARTICLE VII

The functions of the Commissioner shall be to exercise the powers conferred upon him by this resolution and to ensure its implementation.

ARTICLE VIII

l. The governments of the States administering the Jerusalem area shall gradually reduce their armed forces in that area in conformity with article VII of the General Armistice Agreement between the Hashimite Kingdom of the Jordan and Israel of 3 April 1949 and shall limit them, not later than three months after the coming into effect of a peace settlement between the States administering the Jerusalem area, to normal peacetime requirements;

2. Should the Commissioner be of the opinion that the forces maintained by either party under paragraph 1 are above normal peacetime requirements, he shall make representations accordingly to the government concerned;

3. In the event of the Commissioner and the governments concerned failing to reach agreement in the matter, it shall be referred to the Security Council.

ARTICLE IX

The jurisdiction and control of each part of the Jerusalem area shall be exercised by the States concerned, subject to the powers of the Commissioner with respect to this area and without prejudice to the rights and claims of either party in the ultimate peaceful settlement for the area.

ARTICLE X

1. The Commissioner shall be empowered:

(a) To request the governments in the Jerusalem area to modify, defer or sus­pend such laws, ordinances, regulations and administrative acts pertaining to the area, which in his opinion impair the protection of and free access to Holy Places or the rights, immunities and privileges referred to in article II;

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(b) To request the governments to take such action or to make such orders or regulations for the maintenance of public security and safety as he deems necessary to ensure the protection of and free access to Holy Places or the safeguarding of the rights, immunities and privileges concerned.

2. The governments shall carry into effect without delay any such action which the Commissioner, in accordance with the provisions of paragraph 1 of this article, deems necessary, for the protection of and free access to Holy Places and the safeguarding of the rights, immunities and privileges concerned.

3. If a government objects to a request made by the Commissioner under this article, the matter shall be referred for a final decision to the arbitral tribunal provided in article XV.                The tribunal shall decide not later than one month from

the submission of a dispute. Without prejudice to the final decision of the tribunal, provisional effect shall be given by the government concerned to the action requested by the Commissioner.

4. The Commissioner shall immediately inform the Secretary-General of the United Nations of any objection of a government to a request made by him under this article.

ARTICLE XI

The Commissioner shall be empowered to employ under temporary contracts a limited number of guards for the performance of his functions in the Jerusalem area as well as to assure his own security and that of his staff. These guards shall not be selected from among nationals of the State of Israel or of an Arab

State.      The salaries, allowances and administrative expenses of the Commissioner, Deputy Commissioner, and the staff of the Commissioner, including guards and administrative personnel, shall be included in the annual budget of the United Nations. These salaries and allowances shall be exempt from local taxation.

ARTICLE XII

The governments in the Jerusalem area shall upon the Commissioner's request direct their respective police forces to assist the Commissioner in the performance of his duty.

ARTICLE XIII

If at any time it appears to the Commissioner that any Holy Place is in need of urgent repair, he may call upon the religious denominations or bodies concerned to carry out such repair. If in the opinion of the Commissioner the repair is not carried out or is not completed within a reasonable time, he may arrange for repairs to be carried out or completed. The expenses incurred shall be borne by the religious denominations or bodies concerned. The Commissioner shall decide, after due investigation on the basis of existing rights, which denominations or bodies are responsible for the repair.

ARTICLE XIV

The Commissioner shall appoint a panel of advisers consisting of representatives of the religious denominations and of the governments in the Holy Land. These advisers shall be nominated by the religious denominations and governments concerned. If a disagreement arises in connexion with the provisions of this resolution, the Commissioner shall consult advisers from the panel representing such religious denominations or religious bodies and governments as are concerned with the dispute. No representative of any religious denomination shall be con­sulted on questions relating to a Holy Place belonging wholly to another religious faith.

ARTICLE XV

1. Any dispute between the Commissioner and one of the governments of the States in the Holy Land concerning the interpretation or implementation of this resolution or of any supplementary agreements or arrangements, which is not settled by negotiation, shall be referred for final decision to an ad hoc tribunal of arbitrators, one to be nominated, as the case may be, either by the Hashimite Kingdom of the Jordan or by the State of Israel, and one to be nominated by the Secretary-General of the United Nations. In the event of two arbitrators being unable within seven days to agree on the choice of an umpire, the latter shall be nominated by the President of the International Court of Justice.

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2. In case of a dispute between the Commissioner and both governments concerned, two arbitrators will be nominated by the respective governments con­cerned and two by the Secretary-General. In the event of their inability within seven days to agree on the choice of the fifth arbitrator, the latter shall be nomi­nated by the President of the International Court of Justice.

3. The decisions of the arbitral tribunal shall be binding on the governments concerned.

ARTICLE XVI

Nothing in this resolution shall apply to purely Moslem Holy Places, religious buildings or sites and Moslem religious interests within territory controlled by the Hashimite Kingdom of the Jordan, or to purely Jewish Holy Places, religious buildings or sites and Jewish religious interests within territory controlled by the State of Israel.

ARTICLE XVII

The terms of this resolution can be reviewed only by the General Assembly.

APPENDIX III

UNITED KINGDOM, UNITED STATES OF AMERICA, URUGUAY:

AMENDMENT TO THE DRAFT RESOLUTION OF SWEDEN (A/AC.3S/L.63)

U.N doc. A/AC.38/L.73/Rev. 2

(Original text: English)

(13 December 1950)

Preamble

Replace the sixth paragraph of the preamble by the following:

"Pending further decisions by the United Nations with respect to the interests of the international community in the Jerusalem area;"

Operative part

Replace the operative part of the draft resolution by the following text:

"1. Resolves to invite the Governments of Israel and the Hashimite Kingdom of the Jordan to pledge themselves before the United Nations to:

"(a) Observe human rights and fundamental freedoms in the Jerusalem area, and in particular freedom of thought, conscience and religion as set forth in article 18 of the Universal Declaration of Human Rights;

"(b) Refrain from any act that would endanger the Holy Places in their terri­tories;

"(c) Guarantee to nationals of their States, as well as aliens, without distinction as to nationality, free access to Holy Places in their territories, without prejudice to the General Armistice Agreement between the Hashimite Kingdom of the Jordan and Israel of 3 April 1949;

"(d) Observe and maintain as they existed on 14 May 1948 the rights, immuni­ties and privileges of religious denominations with respect to Holy Places, as well as the rights, immunities and privileges of religious bodies with respect to monasteries and missionary, educational and welfare establishments now maintained by them;

"(e) Levy no tax in respect of any Holy Places which were exempt from such taxation on 14 May 1948 and make no charge in the incidence of any form of taxation which would either discriminate between the owners and occupiers of different Holy Places or would place such owners and occupiers in a position less favourable in relation to the general incidence of that form of taxation than existed on 14 May 1948;

"(f) Maintain and respect the property rights of religious bodies;

"(g) Reduce their armed forces in the Jerusalem area in progressive stages with a view to their limitation to normal peacetime requirements upon the conclusion of a peace settlement;

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"2. Resolves to send to Jerusalem a United Nations representative to represent the interests of the United Nations in the Holy City in implementation of para­graph 1 of this resolution; and to report to the General Assembly with such rec­ommendations as he may consider appropriate with regard to the Jerusalem question; the United Nations representative in Jerusalem shall be appointed on the nomina­tion of the Secretary-General by a Committee of the General Assembly consisting of the eleven members of the Security Council; this Committee shall decide by a majority of the members present and voting;

"3. Calls upon the governments of the States in the Holy Land to co-operate fully with the United Nations representative;

"4. Requests the Secretary-General to furnish to the United nations rep­resentative such staff and other facilities, as are required in the performance of his task."

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Other Pamphlets in this Series are:

No. 1. ARAB-ISRAEL RELATIONS 1963 by Anthony Wedgwood Benn.   Price: 3s. 6d.

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