Jerusalem: Legal Status, Condominium and Middle East Peace

AuthorJordie Saperia
PositionB.A. (Hons. at York University), J.D. Candidate, 2010 (Western Ontario)

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I Introduction

Any diplomatic process that is serious about achieving a lasting peace between Israelis and Palestinians must provide an answer to the question: what to do about Jerusalem?

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The city is ground zero for the Middle East conflict. It is holy to the world’ s three great monotheistic religions‐Judaism, Christianity and Islam. And, with a new U.S. president committed to tackling the Middle East peace process,1 the question of how to deal with Jerusalem is rendered all the more pertinent and timely. A lesser-known proposition for solving the Jerusalem question is based on an idea in international law called ‘condominium.’The purpose of this Article is to analyze the condominium model as a solution to the Jerusalem question. Notably, there is a dearth of scholarship evaluating the condominium plan for Jerusalem.2 Therefore, this Article aims to fill a gap in the literature.3

This Article is divided into four broad sections: Part One discusses the legal status of Jerusalem and the history of legal disputes over the city since the beginning of the British Mandate; Part Two explains what is meant by condominium and why it is relevant to a discussion about the future of Jerusalem; Part Three provides an overview of the case to be made for establishing a condominium in Jerusalem; and Part Four explains why the condominium model, at least in the present circumstances, is not a compelling template for trying to settle the territorial dispute over Jerusalem.

II Jerusalem: History and Legal Status since the British Mandate

The legal status of Jerusalem is disputed. In 1917, the British captured Jerusalem, a city which had been part of the Ottoman Empire for hundreds of years. That same year, British Foreign Secretary Arthur James Balfour issued a formal statement in what became known as the Balfour Declaration, which provided that the British government “view with favour the establishment in Palestine of a national home for the Jewish people.”However, the Balfour Declaration was silent on the subject of the legal status of Jerusalem.4

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In July 1922, the League of Nations approved the terms of the British Mandate of Palestine. Throughout the British Mandate, Jews and Arabs were given increasing authority to administer their own affairs. However, the terms of the British Mandate, like the Balfour Declaration, did not make reference to Jerusalem.5

On November 29, 1947, the United Nations General Assembly approved the United Nations Partition Plan for Palestine,6 which would divide Palestine into two separate states: Arab and Jewish. The Partition Plan also provided that Jerusalem “be established as a corpus separatum under a special international regime and shall be administered by the United Nations. The Trusteeship Council shall be designated to discharge the responsibilities of the Administering Authority on behalf of the United Nations.” 7 The Jewish Agency, representing the Jewish population in Palestine at that time, accepted the plan, while the Arabs rejected it. The United Nations Security Council did not take further action. Accordingly, the plan to partition Palestine and to establish Jerusalem as a “corpus separatum”never took legal effect.

On May 14, 1948, Israel declared its independence. Egypt, Iraq, Syria, Jordan, Saudi Arabia and Lebanon invaded the nascent country. Although Israel defeated the invading armies, the war resulted in a divided Jerusalem with Israel controlling West Page 178 Jerusalem and Jordan controlling East Jerusalem.8

In 1949, Israeli Prime Minister David Ben-Gurion proclaimed Jerusalem the capital of Israel and established Israel’ s parliament in West Jerusalem. In 1950, Jordan announced the annexation of the West Bank and Jerusalem. However, Israeli claims of sovereignty over West Jerusalem and Jordanian claims over East Jerusalem were not recognized by the international community.9

In June 1967, war broke out again in the Middle East. Israeli Prime Minister Levi Eshkol wrote to King Hussein of Jordan saying that Israel “shall not engage ourselves in any action against Jordan, unless Jordan attacks us.” 10 Jordan nonetheless initiated violent attacks against Israel, which led to battles over East Jerusalem.11 The result: Jordan lost, and Israel secured control over East Jerusalem.

On November 22, 1967, the United Nations Security Council adopted Resolution 242. The resolution provided for “[w]ithdrawal of Israeli armed forces from territories occupied in the recent conflict.” 12 This particular language had important repercussions. To be precise, the resolution did not call for withdrawal of Israeli forces from ‘all territories’or ‘the territories.’ 13 Thus, it was held that the resolution did not explicitly call on Israel to withdraw from any part of Jerusalem.

In 1980, Israel passed the Basic Law: Jerusalem, Capital of Israel, which provided, inter alia, that “Jerusalem, complete and united, is the capital of Israel.” 14 However, this was condemned by the United Nations Security Council as “a violation of international law.” 15

In 1988, the Palestine National Council of the Palestine Liberation Organization (the “PLO”) announced the establishment of Palestine with Jerusalem as its capital. The council declared: “[t]he Palestine National Council, in the name of God, and in the namePage 179of the Palestinian Arab people, hereby proclaims the establishment of the State of Palestine on our Palestinian territory with its capital Jerusalem (Al-Quds Ash-Sharif).” 16 However, the Palestinian attempt to claim sovereignty over Jerusalem failed because it has not been recognized by the international community as having any legal effect.

In 1995, the U.S. Congress adopted the Jerusalem Embassy Act, recognizing Israeli rule over East Jerusalem. The Act provided that: “(1) Jerusalem should remain an undivided city in which the rights of every ethnic and religious group are protected; (2) Jerusalem should be recognized as the capital of the State of Israel; and (3) the United States Embassy in Israel should be established in Jerusalem no later than May 31, 1999.” 17 However, the Act also included a provision enabling the President of the U.S. to postpone the law’ s application should it be in the interests of U.S. national security.18 Indeed, U.S. presidents have invoked this provision since Congress adopted the legislation. Thus, despite the Jerusalem Embassy Act, the U.S. government has not officially recognized Israel’ s claim of sovereignty over Jerusalem by setting up its embassy in that city.

On September 13, 1993, Israel and the PLO signed the Declaration of Principles ( “the Oslo Accords” ). The primary object of the Oslo Accords was to “establish a Palestinian Interim Self-Government Authority ... for the Palestinian people in the West Bank and the Gaza Strip, for a transitional period not exceeding five years, leading to a permanent settlement based on the Security Council Resolutions 242 and 338.” 19 The Oslo Accords also provided that “[p]ermanent status negotiations will commence as soon as possible...these negotiations shall cover remaining issues, including: Jerusalem...” 20

In July 2000, at the Camp David talks on the final status agreement, the U.S. suggested that the Armenian and Jewish Quarters of the Old City be placed under the sovereignty of Israel and that the Christian and Muslim Quarters fall under the sovereignty of a future Palestine. Israeli Prime Minister Ehud Barak offered to consider the suggestion — and others — as a basis for negotiation, on the condition that Yasser Arafat, Chairman of the Palestinian Authority ( “PA” ), did the same. However, Arafat rejected the offer outright.21

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On June 24, 2002, U.S. President George W. Bush outlined the “Roadmap for Peace.” Phase III of the plan called for “final, permanent status resolution in 2005, including on borders, Jerusalem, refugees settlements.” 22 However, nothing materialized.

On November 27, 2007, the U.S. hosted the Annapolis Conference to address core issues such as Jerusalem. Despite efforts to conclude an agreement before 2008,23 no agreement was reached. Hence, the debate over the legal status of Jerusalem persists.

III Condominium and the Future of Jerusalem
A What Exactly Is Condominium and How Does It Differ from Traditional Sovereignty?

The concept of condominium can be confusing. It has been described variously as: (1) “joint sovereignty by two or more nations;” 24 (2) “joint undivided sovereignty;” 25 (3) “division of sovereignty, or joint sovereignty, or both;” 26 (4) a “piece of territory consisting of land or water...under the joint tenancy of two or more States, [with] these several States exercising sovereignty conjointly over it, and over the individuals living thereon;” 27 (5) “territory placed under the joint authority of two or more states and thus subject to the different states’rules, which have been issued by a joint organ;” 28 and (6) “the status of a territory where the enjoyment and exercise of the competences...belong to a partial international community characterized by the...

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