JERUSALEM UNDER INTERNATIONAL LAW

• The UN Partition Resolution (General Assembly Resolution 181) proposed that Jerusalem be established as a corpus separatum under an international regime to be administered by the United Nations. Despite the outbreak of hostilities in 1948-49 the United Nations made several attempts to establish the international regime before giving up in 1951. But the proposal remains “on the table” in the sense that it remains one option in future negotiations on the status of the Jerusalem.
• Israel’s measures to integrate West Jerusalem into Israel and the measures taken by Israel following the June 1967 war to assert sovereignty over the whole of Jerusalem have been repeatedly condemned by the United Nations and are of no legal effect.
• Sovereignty over the former mandated territory of Palestine was not transferred to the Mandatory Power during the Mandate but remained in abeyance. Sovereignty over that part of Palestine that became the State of Israel, with the exception of West Jerusalem, passed to Israel. Sovereignty over the remaining mandated territory of Palestine remains in abeyance to be exercised by the Palestinian people once they have achieved self-determination.
• Israel’s occupation of West Jerusalem since 1948 has not been recognised de jure, although most states recognise Israel’s de facto authority over West Jerusalem. The 1949 Israel – Jordan General Armistice Agreement endorsed the de facto division of the City but did not affect the legal status of the City.
• Israel is in belligerent occupation of East Jerusalem. Under international law belligerent occupation cannot confer title. Furthermore, the principle of inadmissibility of acquisition of title through force applies and East Jerusalem is included among the territories occupied in the June 1967 war from which Israel must withdraw in accordance with UN Security Council Resolution 242.
• It is accepted by the international community that Jerusalem does have a separate legal status from Israel and the rest of the Occupied Territories. The precise nature of that status remains to be settled in the context of a final peace settlement, or failing that, by the United Nations. In the meantime sovereignty over the City remains in abeyance.
• Palestine has a valid claim to sovereignty over the City based on the fact that under the Ottomans and during the British Mandate, Jerusalem was an integral part of the territory of Palestine and was its administrative capital. Until Jewish immigration altered the demographic structure of the City, the majority of its inhabitants were of Arab origin. Although sovereignty is in abeyance, it will be revived and vest in the Palestinian State once that state achieves recognition as a sovereign state.
• The Israeli claim to sovereignty over Jerusalem has no substance. It has no basis in non-binding UN General Assembly Resolution 181 since the resolution never envisaged that Jerusalem would form part of the proposed Jewish State, but a corpus separatum subject to an international regime. Nor can the Israeli claim that it acted in self-defence in 1948 and 1967 form the basis for a claim to title.
• A legal regime dating from the time of the Ottomans, known as the “Status Quo”  governs the Holy Places located in the Old City. Successive occupiers have undertaken to uphold the regime and the regime has acquired the status of an international legal obligation binding on existing and future occupiers of that part of the City.
• The Interim Agreement did not affect the legal status of Jerusalem.

The Current Status of Jerusalem in International Law

1.Consideration of the legal status of Jerusalem cannot be divorced from consideration of the status of Palestine as a whole. Prior to the Mandate, sovereignty over Palestine, including Jerusalem, vested in the Ottomans. The Mandate did not transfer sovereignty to the Mandatory Power, nor was sovereignty transferred to the League of Nations.

During the time of the Mandate sovereignty was in effect in abeyance. That situation remained until the establishment of the State of Israel and her recognition as a state by the international community and her admission to the United Nations in 1949. Although recognition of Israel implied recognition of Israeli sovereignty over some area of territory in the former mandated territory of Palestine, since possession of territory is one of the criteria for statehood, it did not imply recognition of Israeli sovereignty over all the territory claimed by Israel. In particular, it did not imply recognition of the 1949 Armistice boundary lines or sovereignty over West Jerusalem.

2.The fact that sovereignty is in abeyance over the remainder of the former mandated territory of Palestine does not of course mean that there is no one entitled to that sovereignty. Since Palestine’s provisional independence was recognised in the League of Nations Mandate and the right of self-determination of the Palestinian people has been recognised, the “unit of self-determination” comprises that area of territory. Sovereignty therefore vests in the Palestinian people to be exercised when they achieve their independence.

3.With regard to Jerusalem, Israel’s occupation of West Jerusalem in 1948 has not been recognised de jure. The reason for this is that to do so would be inconsistent with the concept of Jerusalem as a corpus separatum. Thus at present there are no states that maintain embassies in Jerusalem.  Some states maintain consular posts in Jerusalem; though such posts are based on the city’s international status, and no exequatur or other authority for its establishment is sought or obtained from Israel. Most states, including the United Kingdom, regard Israel as exercising only de facto authority over West Jerusalem. Although the 1949 Israel-Jordan General Armistice Agreement endorsed the de facto division of the City, it did not affect the legal status of Jerusalem. In particular, Article II expressly provided that the Agreement should not confer any political or military advantage, that it should not prejudice the rights, claims or positions of either party and that it was dictated exclusively by military considerations.

4.As regards East Jerusalem, prior to the June 1967 war, that part of the City was generally recognised as under the de facto administration of Jordan. Israel’s occupation of East Jerusalem in the June 1967 war did not confer any title. This is because of

1.The well-established rule of international law that belligerent occupation cannot confer title​ and

2.The principle of the inadmissibility of acquisition of territory by force and the requirement that Israel should withdraw from (the) territories occupied by it in the June 1967 war as laid down in Security Council Resolution 242.  Accordingly sovereignty over East Jerusalem, like the remainder of Palestine, remains in abeyance.

5.The next question that needs to be considered is whether Jerusalem has a status different from that of the Occupied Territories and Israel. Although the UN Partition Plan proposed that Jerusalem should have the status of a corpus separatum under a special regime to be administered by the UN, that regime never came into effect. However, it is clear from the history of United Nations’ efforts to internationalise the City following the rejection of the Partition Plan that the concept of a corpus separatum under an international regime for the City lived on. (It should also be noted that, prior to the de facto occupation of East Jerusalem by Jordan in 1950, the Arabs also accepted the principle of an international regime for Jerusalem). Although the proposals for Jerusalem in the UN Partition Plan were recommendations only and are therefore not legally binding, there does appear to be a wide measure of agreement that Jerusalem should continue to be regarded as a corpus separatum (i.e. territory that is legally distinct from Israel and the rest of the Occupied Territories), even though the precise nature of the regime that will apply to the City has not been agreed. It is for this reason that states have not recognised Israel’s claim to sovereignty over West Jerusalem and have not established embassies there. The UN General Assembly and Security Council Resolutions subsequent to General Assembly Resolution 181 speak rather vaguely of the “status of Jerusalem” without defining precisely what that status is. In most cases the term is used in the context of condemning Israeli actions tending to assert Israeli sovereignty over the city and the intention is to ensure that the status quo (whatever that may be) is not altered. Nevertheless the phrase must be interpreted in the historical context, in particular the efforts of the United Nations to establish an international regime for the City and the widespread acceptance of the corpus separatum concept.

6.The international community decisively rejects Israeli claims to sovereignty over the City (East and West). Nor is it accepted that there is currently any other Power that has sovereignty over the city.

Sovereignty is in abeyance. There also appears to be a consensus that Jerusalem does have a status separate from Israel and the rest of the Occupied Territories. The unsuccessful efforts of the United Nations to broker a solution specific to Jerusalem, the widespread acceptance of the corpus separatum concept, and the references in successive UN Resolutions to the “status of Jerusalem” and to the “Palestinian and Arab territories occupied by Israel since 1967, including Jerusalem” testify to that. The precise nature of that status is undetermined. The legal regime that will apply to Jerusalem is a matter that will need to be settled in the context of the final peace settlement, as agreed between the two sides in the Declaration of Principles and in the Interim Agreement. Whether the regime will take the form of a divided city with each side having sovereignty over its respective half, a condominium, an international regime as envisaged in the original Partition Plan, or some other solution, is a matter for negotiation.