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The Legal Status of Jerusalem Following the ICJ Advisory Opinion on the Separation Barrier

Published online by Cambridge University Press:  04 July 2014

Moshe Hirsch
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Abstract

The present article analyzes the expected implications of the recent Advisory Opinion of the International Court of Justice on the legal status of East Jerusalem in accordance with international law. The Court stated that East Jerusalem is occupied territory and Israel is the occupying power in this territory. Generally, the Opinion lends support to the Palestinians' arguments and is likely to enhance their bargaining position in the future negotiations regarding the regime to be applied to East Jerusalem. Unlike the differential approach undertaken by the parties during the recent stage of negotiations (that suggested applying different legal regimes to the city's different areas), the Court's Opinion did not make distinction between the different parts of East Jerusalem. Analysis of these distinct approaches indicates that the differential approach (adopted during the recent negotiations)is more likely to enhance the prospects of attaining an agreed solution to the dispute over East Jerusalem. The Court's emphasis on the interests of third parties as well as the role of the UN tends to multilateralize the dispute between Israel and the Palestinians regarding the West Bank, including East Jerusalem. The impacts of possible multilateralization of the dispute over East Jerusalem on the prospects of achieving an agreed solution are not clear. In contrast to the Court's multilateral approach with regard to the general Israeli-Palestinian dispute, the analysis of Israel's obligation regarding access to the holy places is essentially premised on two bilateral treaties (the 1949 General Armistice Agreement and the 1994 Peace Treaty between Israel and Jordan). In light of the major importance of numerous holy places in other parts of the globe, a preferable legal analysis could have been founded on a reasonable interpretation of general international human rights instruments, particularly the 1966 Covenant on Civil and Political Rights.

Type
Research Article
Information
Israel Law Review , Volume 38 , Issue 1-2: Special Double Issue: Domestic and International Judicial Review of the Construction of the Separation Barrier , Spring Winter 2005 , pp. 298 - 315
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2004

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Footnotes

*

Arnold Brecht Chair in European Law, Faculty of Law and Department of International Relations, Hebrew University of Jerusalem. Principal Research Fellow, Centre for Energy, Petroleum, Mineral Law & Policy, Faculty of Law, University of Dundee.

I am grateful to Ruth Lapidoth and Yuval Shany for their valuable comments on an earlier draft and to Robbie Sable with whom I consulted on the legal impacts of Treaty of Peace between Israel and Jordan.

References

1 Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, General List, No. 131. For a transcript of this decision see this issue “Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” (2005) 38 (1–2) Is.L.R. 17 CrossRefGoogle Scholar. (hereinafter: “Advisory Opinion”).

2 The controversy over the future of Jerusalem is generally restricted to sovereignty and control over East Jerusalem. Almost all the involved parties agree that West Jerusalem should remain under Israeli sovereignty.

3 This article does not address the separation barrier in Jerusalem area. On this issue, see Michael, Kobi and Ramon, Amnon, A Fence Around Jerusalem (Jerusalem, The Jerusalem Institute for Israel Studies, 2004)Google Scholar.

4 For a survey of the various legal positions on the status of Jerusalem under international law, see Hirsch, Moshe, Couriel, Deborah Housen and Lapidoth, Ruth, Whither Jerusalem? Proposals and Positions Concerning the Future of Jerusalem (Dordrecht, Nijhoff, 1995) 15–21 Google Scholar; Eisner, Michael, “Jerusalem: An Analysis of Legal Claims and Political Realities” (1994) 12 Wis. Int'l L.J. 221, at 238–60Google Scholar; Kletter, Larry, “Note: The Sovereignty of Jerusalem in International Law” (1981) 20 Colum. J. Transnat'l L. 319, at 330–56Google Scholar.

5 These enactments applied the Israeli law, jurisdiction and administration to East Jerusalem. Israeli courts that discussed the impact of these enactments on the Israeli law concluded that East Jerusalem constitutes part of the territory of Israel (no different from the status of West Jerusalem and other areas that were incorporated into Israel after the 1948 War). Law and Administration Ordinance (Amendment No. 11) Law, 5727 – 1967, 21 L.S.I. 75; Municipal Ordinance (Amendment No. 6) Law, 5727-1967, 21 L.S.I. 75-76. On these enactments and their interpretation by Israeli courts, see Lapidoth, Ruth, Commentary on Basic Law Jerusalem Capital of Israel (Jerusalem, Sacher Institute, 1999) 49–56 Google Scholar [in Hebrew]; Hirsch, Housen-Couriel and Lapidoth, supra n. 4, at 22-24.

6 Lauterpacht, Elihu, Jerusalem and the Holy Places (London, The Anglo-Israel Association, 1968) 47 Google Scholar; Schwebel, Stephen. M., “What Weight to Conquest?” (1970) 64 Am. J. Int'l L. 344, at 346 CrossRefGoogle Scholar.

7 See General Armistice Agreement, 3 March 1949, Jordan-Israel, art. II(2), 42 U.N.T.S. 304; Blum, Yehuda Z., “Zion Has Been Redeemed in Accordance with International Law” (1971) 27 Hapraklit 315, at 320 Google Scholar [in Hebrew].

8 For the Jordanian legal measures on the unification of the West Bank, including East Jerusalem, to Jordan in 1950, see Whiteman, Marjorie M., Digest of International Law (Washington DC, Department of State Publications, 1963) vol. 2, 1163–1167 Google Scholar.

9 Blum, supra n. 7, at 319.

10 Ibid., at 320.

11 Lauterpacht, supra n. 6, at 48; Blum, supra n. 7, at 320; Schwebel, supra n. 6, at 346.

12 Lauterpacht, supra n. 6, at 48.

13 Schwebel, supra n. 6, at 346; Blum, supra n.7, at 320. On Blum's view regarding the legal status of the West Bank, see Blum, Yehuda Z., “The Missing Reversioner: Reflections on the Status of Judea and Samaria” (1968) 3 Is.L.R. 279 CrossRefGoogle Scholar.

14 See, e.g., Palestine National Council: Political Communiqué and Declaration of Independence, Nov. 15, 1988, 27 I.L.M. 1661, at 1665 (1988). On the Palestinian position in detail, see Klein, Menachem, Jerusalem: The Contested City (New York, New York University Press, 2001) 104–204 Google Scholar.

15 The GA recommended the creation of a separate entity (corpus separatum), demilitarized and neutral, and the establishment of special international regime in the city. Future Government of Palestine, 29 November, 1947, G.A. res. 181 (II), U.N. GAOR, 2nd. Sess., 146-150.

16 Cattan, Henry, Jerusalem (New York, St. Martin's Press, 1981) 107–121 Google Scholar.

17 Ibid., at 64.

18 Cattan, Henery, Palestine and International Law (London, Longman, 2nd ed., 1976) 71 Google Scholar.

19 Ibid., at 139-141.

20 Cattan, supra n. 16, at 111 -121.

21 Mallison, Thomas and Mallison, Sally, The Palestinian Problem in International Law and World Order (London, Longman, 1986) 197–201 Google Scholar.

22 Ibid., at 71-73.

23 Ibid., at 206, 233. Similarly, John Quigly supports the view that sovereignty in East Jerusalem accrue to Palestinian people but his view is not based on the Partition Resolution. Quigley, John, “Old Jerusalem: Whose to Govern?” (1991) 20 Denv. J. Int'l L. & Pol'y 145, at 164–166 Google Scholar.

24 See in detail, Klein, Menachem, The Jerusalem Problem: The Struggle for Permanent Status (Gainseville, University Press of Florida, 2003) 63–126 Google Scholar.

25 Ibid., at 67-77, 111-115. See also Article 2 of the EU Description of the Outcome of Permanent Status Talks at Taba, Ha'aretz, 20 September, 2004, http://www.haaretzdaily.com/hasen/pages/ShArt.jhtml?itemNo=130196&contrassID=2&subContrassID=5&sbSubContrassID=0&listSrc=Y.

26 Klein, supra n. 24, at 92-97, 103- 109.

27 See Article 2.6 of the EU Description of the Outcome of Permanent Status Talks at Taba, supra n. 25.

28 Advisory Opinion, supra n. 1, at paras. 68-69.

29 Regulations Concerning the Laws and Customs of Waron Land annexed to the Fourth Hague Convention of 18 October 1907, art. 42; available at http://www.icrc.Org/ihl.nsf/0/1d1726425f6955aec125641e0038bfd6.

30 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Art. 2, 75 U.N.T.S. 287.

31 Advisory Opinion, supra n. 1, at para. 78.

32 Ibid., at para. 78.

33 Ibid., at para. 93. See also para. 90.

34 Separate opinion of Judge Kooijmans, paras. 8-9 available at http://www.icj.cij/icjwww/idocket/imwp/imp_advisory_opinion_separate_kooijmans.htm. See also on this question in Separate opinion of Judge Al-Khasawneh, paras. 8-9 available at http://www.icj.cij/icjwww/idocket/imwp/imp_advisory_opinion_separate_Al-Khasawneh.htm.

35 Ibid., at para. 95. The Court explained that “[t]he object of the second para, of Article 2 is not to restrict the scope of application of the Convention, as defined by the first para., by excluding there from territories not falling under the sovereignty of one of the contracting parties. It is directed simply to making it clear that, even if occupation effected during the conflict met no armed resistance, the Convention is still applicable.”

36 Ibid., at para. 101. See also paras. 96-99.

37 Ibid., at para. 84. See also para. 119.

38 Ibid., at para. 120.

39 Declaration of Principles on Interim Self-Govemment Arrangements, Sept. 13, 1993, Israel-PLO, art. V, 32 I.L.M. 1525.

40 Interim Agreement on the West Bank and the Gaza Strip, Sept. 28, 1995, Israel-PLO, art XXXI (5), 36 I.L.M. 551.

41 On the provisions of the Israeli-Palestinians agreements regarding Jerusalem, see, Lapidoth, Ruth, “Jerusalem: Past, Present and Future” (1996) 48 R.I.D.C. 9 Google Scholar; Lapidoth, Ruth, “Jerusalem and the Peace Process” (1994) 28 Is.L.R. 402 CrossRefGoogle Scholar.

42 On the impact of domestic groups on international negotiations, see Putnam, Robert, “Diplomacy and Domestic Politics: The Logic of Two-Level Games” (1988) 42 Int'l Org. 427 CrossRefGoogle Scholar.

43 See, e.g., Knopf, Jeffrey W., “Beyond Two-Level Games: Domestic-International Interaction in the Intermediate -Range Nuclear Forces Negotiations” (1993) 47 Int'l Org. 599 CrossRefGoogle Scholar.

44 See Baird, Douglas. G., Gertner, Robert. H. and Picker, Randel C., Game Theory and the Law (Cambridge Massachusetts, Harvard University Press, 1994) 224 Google Scholar.

45 This note addresses only the impact of legal factors on the future negotiations over East Jerusalem. On the impact of non-legal factors, see Hirsch, Moshe, “The Future Negotiations over Jerusalem, Strategical Factors and Game Theory” (1996) 45 Cath. U. L. Rev. 699, at 712–714 Google Scholar.

46 It is possible, however, that the constituent documents of certain international organizations or some other international convention provide that future advisory opinions will bind the relevant parties (“compulsive opinions”). See The Charter of The United Nations: A Commentary, in Simma, Bruno, ed. (Oxford, Oxford University Press, 2002) 1181–1182, 1188 Google Scholar (hereinafter: “Simma”).

47 Ibid.; Rosenne, Shabtai, The World Court (Dordrecht, Nijhoff, 1995) 106–110 Google Scholar; Pomerance, Michla, “The Advisory Role of the International Court of Justice and its ‘Judicial’ Character”, in Muller, A.S., Raič, D. and Thuránszky, J.M., eds. The International Court Of Justice: Its Future Role After Fifty Years (The Hauge, Nijhoff, 1997) 271, 285 Google Scholar et seq.; Shaw, Malcolm N., International Law (Cambridge, Cambridge University Press, 5th. ed., 2003) 1000–1001 CrossRefGoogle Scholar; Malanczuk, Peter, Akerhurst's Modern Introduction to International Law (London, Routledge, 7th. ed., 1997) 289–290 Google Scholar. See also Advisory Opinion, supra n. 1, at paras. 60-62.

48 Shahabuddeen, Mohamed, Precedent in the World Court (Cambridge, Cambridge University Press, 1996) 71 CrossRefGoogle Scholar.

49 See Shaw, supra n. 47, at 1001-1004; Akerhurst, supra n. 47, at 289; Harris, David. J, Cases and Materials on International Law (London, Sweet and Maxwell, 5th ed., 1998) 1035–1036 Google Scholar.

50 Statute of the International Court of Justice, art. 68.

51 Simma, supra n. 46, at 1182, 1188; Sands, Philippe, Klein, Pierre, Bowett's Law Of International Institutions (London, Sweet & Maxwell, 5th ed., 2001) 364 Google Scholar; Shaw, supra n. 47, at 1004-1005; Harris, supra n. 49, at 1035; Akerhust, supra n. 47, at 289.

52 Advisory Opinion, supra n. 1, at para. 163.

53 Ibid., at para. 99.

54 The Court briefly addressed the expected impact of its Opinion on the future negotiations between Israel and the Palestinians. The question arose in the context of some parties' argument that the Court should decline to exercise its jurisdiction because an opinion could impede a negotiated solution to the Israeli-Palestinian conflict (para. 51). The Court stated in that regard that “[i]t is not clear, however, what influence the Court's opinion might have on those negotiations” (para. 53) and it consequently concluded that it “cannot regard this factor as a compelling reason to decline to exercise its jurisdiction”; ibid., at para. 53.

55 Ibid., at para. 118. See also Separate opinion of Judge Kooijmans, supra n. 34, at paras. 31-33; Separate Opinion of Judge Higgins, paras. 28-31 available at http://www.icj.cij/icjwww/idocket/imwp/imp_advisory_opinion_separate_Higgins.htm.

56 Generally, international legal proceedings tend to enhance position of the weaker party in a certain geopolitical setting.

57 Western Sahara Case, 1975 I.C.J. 12 Google Scholar. On the dispute regarding the status of Sahara, Western, Marauhn, Thilo, “Sahara”, in Bernhardt, Rudolf, ed., Encyclopedia of Public International Law (Amsterdam, Elsevier Science B.V., 2000) vol. IV. 283 Google Scholar.

58 See, e.g., Harris, supra n. 49, at 118-119.

59 See supra, Section II(C).

60 On the zero-sum features of the dispute over East Jerusalem, see Hirsch, supra n. 45, at 711-712.

61 See supra. Section II(C).

62 Generally, the prime aim of international tribunals is not necessarily the enhancement of the prospects of agreed political solution to international disputes but rather to provide the legal answers to the relevant legal questions. As discussed above, political solutions and international legal rules that are involved in international disputes are closely interlinked.

63 See, e.g., Wälde, Thomas, “Methods for Settling Boundary Disputes: Escaping from the Fetters of Zero-Sum Outcomes” (2003) 4(1) Journal of World Investment 51 CrossRefGoogle Scholar.

64 The bilateral character of this dispute is particularly clear since the conclusion of the 1993 DOP, which provides that Israel and the Palestinians have the crucial role of shaping the future arrangements to be applied to East Jerusalem.

65 Advisory Opinion, supra n. 1, at para. 155

66 The Court drew the following conclusion regarding the obligations of third states: “… all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction. It is also for all States, while respecting the United Nations Charter and international law, to see to it that any impediment, resulting from the construction of the wall, to the exercise by the Palestinian people of its right to self-determination is brought to an end. …”. Ibid., at para. 159. Judges Higgins and Kooijmans criticized these parts of the Court's Opinion. Separate Opinion of Judge Higgins, supra n. 55, at paras. 36-39; Separate Opinion of Judge Kooijmans, paras. 40-46, supra n. 34.

67 See, e.g., ibid., at para. 122.

68 See ibid., at para. 120

69 Ibid., at para. 46.

70 Ibid., at para. 49. The court further elaborated on the UN responsibility: “This responsibility has been described by the General Assembly as “a permanent responsibility towards the question of Palestine until the question is resolved in all its aspects in a satisfactory manner in accordance with international legitimacy” (General Assembly Resolution 57/107 of 3 December 2002). Within the institutional framework of the Organization, this responsibility has been manifested by the adoption of many Security Council and General Assembly resolutions, and by the creation of several subsidiary bodies specifically established to assist in the realization of the inalienable rights of the Palestinian people.”

71 Ibid., at para. 161.

72 See Hirsch, supra n. 45, at 711-712.

73 Snidal, Duncan, “Relative Gains and the Pattern of International Cooperation” (1991) 85 Am. Pol. Sc. Rev. 703, at 722 Google Scholar.

74 Advisory Opinion, supra n. 1, at para. 129. The Court's observations on the freedom of access to the holy places only scantly mentioned international human right law: “In addition to the general guarantees of freedom of movement under Article 12 of the International Covenant on Civil and Political Rights, account must also be taken of specific guarantees of access to the Christian, Jewish and Islamic Holy Places. …”.. On the freedom of access to the holy places, see also para. 149.

75 On the view that the Armistice Agreement has already terminated in 1967, see Section II(A).

76 General Armistice Agreement, supra n. 7.

77 Treaty of Peace Between The State of Israel And The Hashemite Kingdom of Jordan October 26, 1994, 2042 U.N.T.S. 395.

78 Ibid.

79 If the 1949 Armistice Agreement, or only Article VIII thereof, is still in force, the question arises whether the latter provision of this bilateral Agreement creates rights to third parties; on this question, see further below with regard to the 1994 Treaty of Peace.

80 Aust, Anthony, Modern Treaty Law and Practice (Cambridge, Cambridge University Press, 2000) 207 Google Scholar.

81 Article 36(1) of the Vienna Convention on the Law of Treaties provides as follows:

“A right for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the contrary otherwise provides”. 8 I.L.M. 679. See also Jennings, Robert and Watts, Arthur, Oppenheim's International Law (London, Longman, 9th ed., 1996) 1261–1263 Google Scholar; Harris, supra n. 49, at 825.

82 See, e.g., Statement made by Israel's Prime Minister, Levi Eshkol, to leaders of the religious communities in Jerusalem, 27 June 1967, reprinted in Lapidoth, Ruth and Hirsch, Moshe, The Jerusalem Question and its Resolution: Selected Documents (Dordrecht, Nijhoff, 1994) 166 Google Scholar. The freedom of access to the holy places is also protected by Israel's Protection of Holy Places Law, 5727-1967, 21 L.S.I. 76. Article 1 of this statute states: “The Holy Places shall be protected from desecration and any other violation 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.” On Israel's policy regarding the holy places in Jerusalem, see Berkovits, Shmuel, The Battle for the Holy Places (Jeursalem, Jerusalem Institute for Israel Studies, 2000) 246–284 Google Scholar [in Hebrew].

83 The freedom of access to holy places is not an absojute freedom and it is subject to some limitations under international law; see below on these limitationls.

84 Article 18 of the Universal Declaration provides as follows: “Everyone has the right to freedom of thought, conscience and religion; this right includes the freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” Reprinted in (1949) 43 Am. J. Int'l L. - Supplement 127 Google Scholar.

85 Article 18(1) of the Covenant provides as follows: “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include the freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching”. International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171.

86 21 I.L.M. 205 (1982). On the Declaration and its legislative history, see Lerner, Natan, “Toward a Draft Declaration against Religious Intolerance and Discrimination” (1981) 11 Isr. YB. Hum. Rts. 82 Google Scholar; Tahzib, Bahiyyih G., Freedom of Religion or Belief: Ensuring Effective International Legal Protection (The Hague, Nijhoff, 1996) 155–165 Google Scholar.

87 See in this respect on Article 6 of the 1981 Declaration in Lerner, ibid., at 94.

88 See, e.g., Watson, Geoffrey R., “Progress for Pilgrims? An Analysis of the Holy See-Israel Fundamental Agreement” (1998) 47 Cath. U. L. Rev. 497, at 525 Google Scholar.

89 See also Krishnaswami, Arcot, “Study of Discrimination in the Matter of Religious Rights and Practices” (1978) 11 N. Y. U. J. Int'l L. & Pol. 227, at 247 Google Scholar; Mason, Peter W., “Pilgrimage to Religious Shrines: An Essential Element in the Human Right to Freedom of Thought, Conscience, and Religion” (1993) 25 Case W. Res. J. Int'l L. 619, at 638–641 Google Scholar.

90 The freedom of religion under general international law is subject to certain limitations. See Article 18(3) of the 1966 Covenant, supra n. 85. On the freedom of access to holy places in context of Christian Pilgrimage, see Hirsch, Moshe, “Freedom of Pilgrimage to Christian Holy Places in Jerusalem under International Law” in Lapidoth, Ruth, Ahimeir, O. eds. Freedom of Religion in Jerusalem (Jerusalem, Jerusalem Institute for Israel Studies, 1999) 121 Google Scholar.