Positions on the Legal Status of Jerusalem

Fact Sheet

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The legal status of Jerusalem is highly disputed between scholars and politicians. There are no legal documents that clearly settle the status of Jerusalem. In Israeli-Palestinian negotiations the discussion about the status of Jerusalem has always been postponed, like i.e. in the Oslo Accords, 1993. Therefore it does not exist any legally binding bilateral or international treaty that would clarify the legal status of Jerusalem.

In 1980 the Knesset declared Jerusalem to be Israel’s “eternal and indivisible capital”, including the territory of the 1967 occupied East Jerusalem. No other country, however, has recognized Jerusalem as the capital of Israel.

Palestinians, on the other hand, declare East Jerusalem (the territory east of the 1948 armistice line, also known as the green line) as the capital of a future Palestinian State.

Within the International Community it is argued, that the whole city of Jerusalem (East and West) is still under international control according to General Assembly Resolution 181 (1947). This resolution envisaged the separation of the historic Palestine in a Jewish and an Arabic part and saw Jerusalem as a separate entity under international trusteeship. Subsequent UN resolutions, it is argued, refer to resolution 181 and bilateral negotiations excluded the topic of Jerusalem. Also, the EU repeatedly declared their adherence to the Corpus Separatum plan. According to this point of view, all administrative and legislative action taken by Israel in Jerusalem – East and West, would be invalid.

By following this opinion, the question would remain, if the international status applies to Jerusalem as a whole, or only to those parts, that formed the city of Jerusalem at the time the Partition Plan has been introduced and before Israel annexed large parts of the West Bank in the six-day-war 1967 and included them into the city borders.

Between 1948 and 1967 Jerusalem was separated in two parts: West Jerusalem was under the control of Israel, East Jerusalem was under Jordanian control. In the course of the six-day-war (1967) Israel annexed East Jerusalem as well as another 64 qm2 of the West bank into the city borders.

Others argue that neither the Arab -, nor the Jewish side has recognized the 1947 partition plan. At the same time, the de facto division of Jerusalem in East and West that was in place between 1948 and 1967 has been accepted by the international community through various referrals in UN resolutions as well as through customary law and state practice.

Both the EU and the UN, even though they still refer to the Corpus Separatum Plan, speak about an Occupied East Jerusalem and envision a two-state-solution with East Jerusalem as the capital of a future Palestinian State and West Jerusalem as the capital of Israel. Since the early 50ies onwards the international community of states therefore accepted the de facto application of Israeli Law in West Jerusalem while the claim to internationalize Jerusalem has not been raised anymore. At the same time merely actions (factual, legal or administrative) that Israel undertakes in East Jerusalem are declared illegal by the United Nations. Both, the Security Council and the General Assembly in recent resolutions when tackling the issue of Jerusalem, referred to violations of Humanitarian Law (especially the Fourth Geneva Convention) in Occupied East Jerusalem, rather than to violations of the internalization of Jerusalem or the partition plan.

Also the International Court of Justice (ICJ) in his advisory opinion on the “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory” included East Jerusalem in its findings and referred to both, the IV Hague Convention (1907) and the Fourth Geneva Convention (1949) which are applicable in occupied territories.

According to the Israeli position, General Assembly Resolution 181 was a nonbinding proposal, which never materialized. Also, so Israel, there has never been any agreement, treaty, or international understanding which applies the 'Corpus Separatum' concept to Jerusalem. At the same time Israel is not considering East Jerusalem as occupied territory and derives its right regarding the unified Jerusalem from 3000 years of history, as well as from the assumption, Jerusalem had always been without sovereign. This position, however, is not been shared by the International Community.

Summarizing it can be said that the International Community unanimously agrees about the illegality of factual, administrative and legal actions taken by Israel at least in East Jerusalem. Either because they happen on occupied Palestinian territory and violate international humanitarian law, or because they violate the internalization of Jerusalem, declared in resolution 181 and 194 by the UN General Assembly. In the latter case, it has to be differentiated: if resolution 181 is applied to the greater Jerusalem, Israeli actions in both, west and east Jerusalem are illegal as they violate the partition plan. If resolution 181 is applied to the territory of Jerusalem of 1947, actions in this part of the city violate the partition plan, while actions in the 1967 annexed territory stands in violation of humanitarian law, in particular the Fourth Geneva Convention.

Ilona-Margarita Stettner

Sources:

  • http://news.bbc.co.uk/2/hi/middle_east/295001.stm
  • http://www.mfa.gov.il
  • International Court of Justice „Legal Consequences of the Construction of a Wall in the Occupied *John Quigley, „The Legal Status of Jerusalem Under International Law”; The Turkish Year Book vol. 24; S.11 – 23.
  • Raoul Jacobs, „Mandat und Treuhand im Völkerrecht“, Universitätsverlag Göttingen 2004; S. 181 ff.
  • UN General Assembly resolution 181 (II) of 29 November 1947
  • UN General Assembly resolution 194 (III) of 11 December 1948
  • UN Security Council Resolution 252 (1968)