___The EU, Jerusalem and the Peace Process
The EU, Jerusalem and the Peace Process
by
Ruth Lapidoth[1]
I. Introduction
One of the subjects dealt with by the European Union in the sphere of foreign relations since an early stage is the Arab-Israel conflict, or the Middle East peace process [2]. This activity took place mainly in the framework of the EPC (European Political Cooperation), and later of the CFSP ( Common Foreign and Security Policy). Since Jerusalem is a central issue in this context, the EU from time to time has dealt with this question.
The usual tools of the CSFP are declarations, joint actions [3], common positions [4] and since 1999 also common strategies [5]. So far, in the Middle East context the EU has acted mostly by declarations and a few joint actions by the Council and by the European Council. However, we may also refer to certain resolutions adopted by the European Parliament and to answers given by the Council and the Commission to questions submitted by members of the European Parliament. Other documents may also have to be consulted.
In dealing with EPC and CFSP matters, one has to bear in mind that these activities of the EU are of an intergovernmental nature and hence subject to international law, and not to community law [6]. This situation could of course change in the future.
The discussion will center on two main subjects: The attitude of the EU with regard to the existing situation in Jerusalem, on the one hand, and its opinion on appropriate solutions, on the other hand. Two practical, less central, issues will also be mentioned, namely, the dispute between the EU and Israel about visits to the „Orient House“, and the refusal of the EU to participate in the celebrations of the 3000th anniversary of the foundation of Jerusalem.
In order to put the EU activities in the proper context, we will start by outlining the question of Jerusalem in the peace process.
II. Jerusalem and the Peace Process
When studying the Jerusalem question one has to bear in mind at least five aspects. The city is the object of conflicting national aspirations of two people - the Israelis and the Palestinians. It is holy to many millions of peoples - Christians, Jews and Muslims - who do not live there. The population is rather heterogeneous and includes members of some 40 different communities. There is a close relationship - social, economic, religious, cultural and technical - between the city and its periphery, irrespective of the political status of the various areas. Many people have developed a strong emotional attachment to the city, and it has become of symbolic significance. These facts explain the difficulties involved in solving the Jerusalem question.
The recent stages of the peace process started in 1991, with the convening of the Madrid Peace Conference, with the participation of Israel and all its neighbours [7]. It was convened after the Gulf War by the U.S. and the Soviet Union, and the European Community participated in a status similar to that of the convenors. The conference was followed by bi-lateral a well as multi-lateral negotiations. Jerusalem was not on the agenda of the conference, but it was mentioned in a letter of assurances from the U. S. that accompanied the letter of invitation to the conference sent to the Palestinians [8].
In 1993 the PLO and Israel conducted secret negotiations, and as a result, certain letters were exchanged and a Declaration of Principles was signed. The letters involved mutual recognition by the PLO and Israel, as well as renunciation of acts of violence by the PLO [9].
The Declaration of Principles on Interim Self-Government Arrangements [10] foresaw the peaceful solution of the conflict between Israel and the Palestinians in several stages, to start with a five year period of self-government, involving a transfer of powers from Israel and redeployment of the Israeli army.. The process should be completed by an agreement on a permanent settlement based on Security Council resolutions 242 (1967) and 338 (1973). This declaration constituted a turning point in the attitude of the two parties on the question of Jerusalem. The parties agreed that Jerusalem would not be included in the interim self-government arrangements - a concession by the Palestinians. Israel, on the other hand, conceded that Jerusalem would be one of the subjects to be dealt with in the framework of the negotiations on the „permanent status“[11]. In addition, it was agreed that „Palestinians of Jerusalem who live there will have the right to participate in the election process“ for the interim self-government authority for the West Bank and Gaza,[12] although Jerusalem is not within the jurisdiction of that authority.
About a month after the Declaration of Principles was signed, a letter was sent by the Foreign Minister of Israel Shimon Peres to the Foreign Minister of Norway, Johan Jurgen Holst. According to this letter, „all the Palestinian institutions of East Jerusalem, including the economic, social, educational, cultural, and the holy Christian and Moslem places, are performing an essential task for the Palestinian population“ and „will be preserved“[13].
The details concerning the participation in the elections were agreed upon in the Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip of 1995 [14], and in an additional agreement on the Initial Registration Canvass of 1995 [15]. The Palestinians of the eastern neighbourhoods of Jerusalem participated in the elections which took place on 20 January 1996. The EU helped the Palestinians in the preparation of the elections and also took part in the monitoring [16].
In 1994 Israel and Jordan concluded a Treaty of Peace. It did not deal with Jerusalem as such, but with the holy places: „... Israel respects the present special role of the Hashemite Kingdom of Jordan in Muslim Holy shrines in Jerusalem. When Negotiations on the permanent status will take place, Israel will give high priority to the Jordanian historical role in these shrines“[17].
As these lines are being written, Israel and the Palestinians are negotiating on the permanent settlement, including the question of Jerusalem. According to the Sharm el-Sheikh Memorandum of September 1999, the parties agreed to “make a determined effort to conclude a Framework Agreement on all Permanent Status issues“ by February 2000, and a comprehensive agreement by September 2000 [18].
III. The EU and the Present Situation in Jerusalem
As is well known, from 1948 until 1967 Jerusalem was divided between Israel and Jordan, in accordance with the 1949 General Armistice Agreement [19]. At the beginning of the Six- Day War of 1967, Jordan attacked the areas under Israeli control. Israel repelled the Jordanian attack and took the areas which had been under Jordanian control. After the end of the hostilities, Israel extended its „law, jurisdiction and administration“ to eastern Jerusalem and enlarged the municipal area of Jerusalem [20]. In addition, since the new areas included many holy places, she adopted the Protection of the Holy Places Law, of 5727-1967 [21]. The unification of the city and its status as capital of the State as well as the protection of the holy places were reconfirmed by the Basic Law: Jerusalem Capital of Israel, of 1980 [22].
The EU has disapproved these acts undertaken by Israel. Thus, in the 1980 Venice Declaration adopted by the European Council it is said that „ they will not accept any unilateral initiative designed to change the status of Jerusalem...“ [23].
With regard to the new Jewish neighbourhoods established in the areas that came under Israeli control in 1967, the EU considers them illegal: „Jewish settlements in the territories occupied by Israel since 1967, including East Jerusalem, are illegal under international law and under the 4th Geneva Convention in particular“ [24].
Without going into a detailed legal analysis, it should however be mentioned that there are also different opinions on the legality of the settlements. In particular, it has been maintained that by Article 49 (6) of the Fourth Geneva Convention of 1949, the parties have only committed themselves not to „transfer“ civilian populations into occupied territories, namely, only forceful transfers, as practised in World War II, are excluded; the Convention does not preclude voluntary movement by individuals, according to this opinion [25]. Moreover, both the 1993 Declaration of Principles [26] and the 1995 Interim Agreement [27] have delayed the discussion of the settlements and put it on the agenda of the final status negotiations. On the other hand, the parties have agreed that „Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations" [28].
The general policy of the EU on the status of Jerusalem has been defined several times, e.g., in the declaration made by the Council on 1st October 1996 in Luxembourg [29]: „East Jerusalem is subject to the principles set out in UN Security Council Resolution 242, notably the inadmissibility of the acquisition of territory by force and is therefore not under Israeli sovereignty. The Union asserts that the Fourth Geneva Convention is fully applicable to East Jerusalem, as it is to other territories under occupation“.
The reference to Security Council resolution 242 (1967) raises certain problems [30]. It will be remembered that this resolution, adopted in November 1967, has been the cornerstone of the treaties of peace between Israel and Egypt (1979) and Jordan (1994) respectively. Moreover, it is to be the basis for the permanent status negotiations with the Palestinians. The question is, whether the EU, by practically requiring a full withdrawal from all the territories occupied in 1967, including eastern Jerusalem, has drawn the right conclusions from the resolution.
The EU has singled out and quotes one paragraph in the preamble to the resolution. A look at some of the provisions in the main text may lead to a somewhat different conclusion:
„ The Security Council...
i. Affirms that the fulfilment of Charter principles requires the establishment of a
just and lasting peace in the Middle East which should include the application of
both the following principles:
(i) Withdrawal of Israel armed forces from territories occupied in the recent
conflict; [31]
(ii) Termination of all claims or states of belligerency and respect for and
acknowledgement of the sovereignty, territorial integrity and political
independence of every State in the area and their right to live in peace within
secure and recognized boundaries free from threats or acts of force;....“
Israel and the Arab States disagree on the interpretation of this withdrawal clause. While the Arabs insist on complete Israeli withdrawal from all the territories occupied by Israel in 1967[32], Israel is of the opinion that the call for withdrawal is applicable in conjunction with the call for the establishment of secure and recognized boundaries to be established by agreement [33]. It seems that the EU has fully endorsed the Arab attitude.
The Arab States base their claim on the combination of the following phrases: the provision in the preamble on „the inadmissibility of the acquisition of territory by war“, and „withdrawal of Israel armed forces from territories occupied in the recent conflict“, in the latter’s French version: „retrait des forces armÈes israÈliennes des territoires occupÈs lors du rÈcent conflit“.
Israel’s interpretation is based in the plain meaning of the English text of the withdrawal clause which was the draft presented by the British delegation. It is also based on the fact that proposals in the Council to add the words „all“ or „the“ before „territories“ were rejected; and on the idea, that in interpreting the withdrawal clause one has to take into consideration the other provisions of the resolution, including the one on the establishment of „secure and recognized boundaries“.
It seems that the resolution does not require total withdrawal for a number of reasons:
(a) The inadmissibility of the acquisition of territory by war merely reiterates the
principle of international law that military occupation, although lawful if it is the result
of an act of self- defence, does not by itself justify annexation and acquisition of title to
territory.
(b) The English version of the withdrawal clause requires only „withdrawal from
territories“, not from all territories, nor from the territories. This provision is clear and unambiguous. As Lord Caradon, the representative of Great Britain, stated in the Security Council on 22 November 1967: „I am sure that it will be recognized by us all that it is only the resolution that will bind us, and we regard its wording as clear...“ [34].
(c) Since there seems to be a discrepancy between the English and the French texts, the English version should be preferred because it is identical with the original version of the British draft on which the resolution is based [35]. It is a well-established rule in international law that multilingual texts of equal authority in the various languages should be interpreted by „accordant la primautÈ au texte original“[36], or the „basic language“ [37]. Various authorities deal with this question in the context of the interpretation of treaties, but by analogy the relevant rules may also be applied to the interpretation of other categories of documents.
One should remember that English was not only officially a „working language“ in the Council, but also in practice the language of most of the deliberations. Indeed, English was used by ten members of the Council, while French was used by three, and Russian and Spanish by one each [38].
(d) The provision on the establishment of „secure and recognized boundaries“ included in para.1, subpara. (ii) of the resolution would have been meaningless if there had been an obligation to a withdrawal of Israelis armed forces from all the territories occupied in 1967. Similarly, there would have been no need to negotiate on borders, as is foreseen for the negotiations on the final status between Israel and the Palestinians [39], if Israel had to withdraw from all the territories.
To conclude, the gist of the withdrawal clause is that “[w]hen peace is made, the resolution calls for Israeli withdrawal to „secure and recognized boundaries“[40]. The EU, by quoting only one provision taken from the preamble, contorts the meaning of that passage and ignores other provisions of the main text which are no less important.
Like the UN, the EU is of the opinion that the eastern parts of Jerusalem are occupied territory subject to the Fourth Geneva Convention of 1949. Again, without going into a detailed legal analysis, it should be mentioned that there are also different opinions on this matter [41]. Thus, some experts in international law maintain, that during the period 1949-1967 ( the time it was under Jordanian rule) , the area was under a vacuum of sovereignty: Britain had abandoned the area, but Jordan could not fill the gap because it had occupied east Jerusalem by an illegal act of aggression [42]. This vacuum existed until Israel occupied east Jerusalem by a lawful act of self-defence and thus was entitled to fill the gap [43]. Under a slightly different interpretation, Israel has the strongest relative title to the area in the absence of a lawful „sovereign reversioner“ due to Jordan’s lack of valid sovereignty [44].
As to west Jerusalem - the area which has been under Israeli jurisdiction since 1948, and is on the Israeli side of the armistice line established under the 1949 Agreement between Israel and Jordan [45], - the EU accepts the de facto control of Israel in these areas, without de-jure recognition [46].
Several times the EU has urged the parties to refrain from activities which prejudge the outcome of the final status negotiations [47]. Has the EU itself lived up to this principle? Let us examine the „Orient House“ affair. This building serves as headquarter for Mr. Faisal Husseini, the PLO’s representative in Jerusalem [48]. The house serves as a centre for various administrative, political and quasi-political activities. Mr. Husseini even receives and briefs foreign diplomats in these premises. Israel claims that these activities contravene the commitments undertaken by the Palestinians in the 1993 Declaration of Principles [49] and in the 1995 Interim Agreement[50], namely, that the offices of the Palestinian authority „shall be located in areas under Palestinian territorial jurisdiction in the West Bank and the Gaza Strip“.
This activity in the Orient House no doubt prejudges the outcome of the permanent status negotiations on Jerusalem. Nevertheless, the EU supports this activity by insisting that its emissaries pay a visit to the place and hold there official talks with Mr. Faisal Husseini. When a member of the European Parliament raised the question whether “holding official talks with Palestinian officials in East Jerusalem“ does not imply „recognition of Palestinian authority over that part of the city“, the Council answered as follows:
„Since the Israeli annexation of East Jerusalem, existing Palestinian institutions in this part of the city have continued to function and new ones, including Orient House, have been created. With the aim of reaffirming the EU¥s policy on the status quo in Jerusalem and exercising the right of free access to both parts of the city, foreign ministers of EU Member States make a point of visiting Orient House when they are in Jerusalem. However, Orient House is not an institution of the Palestinian Authority...“[51].
On the other hand, the EU refused to participate in the celebrations of the 3000th anniversary of the foundation of Jerusalem - a mainly touristic enterprise - to which Israel had invited it. In response to a question submitted to the Council, the latter stated that, according to the Israeli organizers, the celebrations are intended to remind that King David established Jerusalem as his capital 3000 years ago. King David founded his city in what is today East Jerusalem. The EU`s attitude towards these celebrations is therefore a consequence of the non- recognition of the annexation of East Jerusalem by Israel. Moreover, the EU has always maintained that nothing should be undertaken which could prejudge the outcome of the permanent status negotiations [52].
No wonder that a member of the European Parliament expressed the question whether these two attitudes of the Council were consistent [53].
To conclude, the attitude of the EU towards Jerusalem can be summarized as follows: The EU accepts Israel’s de facto control over the western neighbourhoods but does not recognize Israeli sovereignty in these areas. The eastern parts are considered to be occupied territory subject to the Fourth Geneva Convention and Israel is requested to withdraw completely from these areas. The EU considers the establishment of new Jewish neighbourhoods in these eastern areas to be contrary to international law. The parties should refrain from activities which may prejudge the outcome of the permanent status negotiations, but it is doubtful whether the EU itself lives up to this principle with regard to the „Orient House“.
IV. The EU and the Future of Jerusalem
On several occasions representatives of the EU have expressed support for the implementation of agreements reached by the parties to the conflict and have also strongly supported the negotiations on the permanent status [54]. It may be assumed that the EU will accept and welcome any agreement which the parties may reach.
But what is the solution preferred by the EU itself? The answer is: internationalization of the city. This solution has been continuously advocated by the EU, at least since 1971. On 13 May 1971 the European foreign ministers unanimously approved a paper which stated inter alia that „an international status must be given to Jerusalem“[55].
In the Venice Declaration of 13 June 1980 the Heads of State and of Government expressed their opposition to „any unilateral initiative designed to change the status of Jerusalem“, and stated that „any agreement on the city’s status should guarantee freedom of access for everyone to the Holy Places“[56]. With the aim of clarifying and giving substance to the Venice principles, the directors for political affairs of the foreign ministries prepared a document with a list of options on four subjects: 1. Withdrawal of all Israeli troops; 2. Palestinian self-determination; 3. Security guarantees for all states in the region; 4. The status of Jerusalem.[57] The text was approved by the European Council in its Luxembourg statement of 2 December 1980: the Council declared that new contacts should be established with the parties concerned on the basis of the above recommendations[58]. The report remained classified, but its contents was published in two newspapers [59] from which the following quotations on the question of Jerusalem are taken:
„All changes in Jerusalem are illegal which have occurred since the UN plan for the Partition of Palestine in 1947. Several solutions are possible. One would be to return the city to the international status accorded in the UN partition plan. Another would be to divide the city between Israel and the new Palestinian entity while placing the holy places under their respective religious authorities. A final option would be to divide the city and give international status to „the old city“ in East Jerusalem“ [60].
In 1990 the European Parliament adopted a resolution dealing with oppression in the territories under Israeli occupation. One paragraph in the preamble deals with Jerusalem. The parliament took into consideration that members of the Community adhere to the status of the city of Jerusalem as it has been defined by the UN General Assembly resolution 181 of 29 November 1947( which will be outlined below) [61].
The same opinion was reiterated in a Note Verbale sent by the Embassy of Germany in Tel Aviv in the name of the EU to Israel’s ministry of foreign affairs on 1st March 1999:
„...The EU reaffirms its known position concerning the specific status of Jerusalem as a corpus separatum. This position is maintained in strict accordance with international law. The EU therefore does not intend to change its existing practices over meetings in Jerusalem...“ [62].
This Note Verbale was sent in the context of the disagreement over visits to „Orient House“ by emissaries of the EU. The expression corpus separatum refers us to the above mentioned resolution 181 of the UN General Assembly which will now be discussed.
It will be remembered that in 1947, after World War II, Britain requested the UN General Assembly to consider the Palestine question, and on 29 November 1947 the Assembly adopted its famous resolution on the future government of Palestine[63]. The resolution recommended the establishment of an Arab state, a Jewish state, and a special entity of Jerusalem. Part III of the resolution dealt with Jerusalem. The General Assembly recommended the establishment of a „corpus separatum under a special international regime“ [64]. The objectives were to be the preservation of the unique spiritual and religious interests in the city, and „to this end to ensure that order and peace, and especially religious peace, reign in Jerusalem“ [65]. In addition, the regime was intended to foster cooperation among all the inhabitants of the city. The UN Trusteeship Council and a governor appointed by it were to administer the corpus separatum, [66] while preserving existing local autonomous units and considering the establishment of new ones.
The city was to be demilitarized and neutralized. In case of obstruction by one or more sections of the population, the governor was to have authority to take all necessary effective measures. Jerusalem was to have a police force composed of people recruited outside Palestine. A legislative council, elected by the adult residents of the city, would have had powers of legislation and taxation. However, the governor was authorized to veto any legislative or other measures that contravened the provisions of the Statute adopted by the Trusteeship Council for the city. In case of failure of the legislative council to act, the governor could adopt necessary temporary ordinances.
The Statute was to provide for the establishment of an independent judiciary system, including a court of appeal. In the economic sphere, the General Assembly recommended the
establishment of an economic union between Jerusalem and the Jewish and Arab states, that were to be established in Palestine.
The resolution also dealt with freedom of transit and visits, relations with the Arab and Jewish states, citizenship and human rights, in particular in matters of religion. Special provisions were intended to ensure existing rights at holy places (a hint to the historical status quo decreed by the Ottoman Empire in the 19th century [67]) including rights of access and of worship. The Governor was authorized to undertake repairs at holy places in case the relevant community failed to carry out the necessary repairs. Another provision deals with the taxation of holy places. The protection of the holy places in Jerusalem was entrusted to the governor and he was also to have certain responsibilities with regard to holy shrines in the Jewish and the Arab state. Moreover, he was to be authorized to adopt decisions - on the basis of existing rights - in case of disputes between different religious communities or rites with regard to holy places in the Jewish and the Arab state.
The regime was to be established in the first instance for a period of ten years, after which the Trusteeship Council was to re-examine it in light of the experience acquired and in light of the wishes of the residents.
The corpus separatum was to apply to a large area, from ¡in Karim in the West to beyond the Eastern slopes of Mount Scopus and the Mount of Olives in the East, thus including El-Ezariya and Abu Dis; and from Shu`afat in the North to beyond Bet Jala, Bethlehem and Beit Sahur in the South (see attached map).
The General Assembly resolution received the consent of the national leadership of the Jewish community of Palestine [68], but the Arabs categorically rejected it [69] and immediately initiated attacks on Jewish towns and villages, including the Jewish neighbourhoods of Jerusalem.
This, then, is the resolution and the corpus separatum to which the EU still subscribes. Moreover, according to the 1999 Note Verbale, this is in strict accordance with international law. The reference to international law is problematic. It should be remembered that this is a General Assembly resolution, and, as is well known, resolutions of the Assembly are mere recommendations. Only in matters of its internal regulations and of the UN budget is the Assembly authorized to adopt binding decisions [70]. If the two parties had accepted the resolution, it could have become binding for them because of their mutual consent. But, as mentioned, the Arabs rejected it vehemently. Since it was rejected by the Arabs, Israel’s consent has not matured into a binding commitment and lost its effect.
If the drafters of the Note Verbale of 1999 intended to say, that the opinion which favours the implementation of the corpus separatum idea is in conformity with international law, this would be acceptable. Inernationalization is not contrary to international law. But if the drafters wished to convey the idea, that there is an obligation under international law to accept and implement the corpus separatum regime, it would be difficult to agree with them [71].
The UN General Assembly in 1947 and the EU are not the only ones who have favoured an internationalization of Jerusalem. Some have recommended the internationalization of the whole city while others limited that solution to the Old City or the holy places [72]. However, these proposals are hardly anymore relevant today since all the parties directly involved reject territorial internationalization.
The development of the attitude of the Holy See is revealing in this regard. In the past, the Vatican was in favour of territorial internationalization of the city of Jerusalem and in 1947 supported the corpus separatum solution. However, after the 1967 Six Day War, the Holy See adopted a different proposal which would leave the question of sovereignty to be agreed upon by the parties, but would call for a special internationally guaranteed „statute“ (or „status“) for Jerusalem. This status should involve geographical, individual and communal aspects: the recognition of Jerusalem’s sacredness (in particular of the Old City) and the obligation to preserve it both physically and demographically; equality of rights of all residents and freedom of access for all pilgrims; the right of the religious communities to function; and international guarantees for that regime [73].
Maybe the time has come for the EU too to abandon the corpus separatum idea, and adopt a more practical proposal.
To conclude: the EU supports the ongoing negotiations on the permanent status, including those about Jerusalem. It may be assumed that the EU will accept whatever solution the parties may adopt, provided that free access and freedom of worship at the holy places are ensured.[74] However, the EU seems still to favour a solution based on the corpus separatum notion, namely, territorial internationalization of the city - a notion which is out of date.
V. Conclusion
The European Union has in certain areas contributed positively to the peace process in the Middle East [75]. Thus, it has appointed an able special envoy to the area [76]; it is prepared to participate in a system of guarantees [77]; it is prepared to make suggestions in the search for a permanent settlement [78]; troops of its members participate in the various peace-keeping forces in the area – MFO [79], UNDOF and UNIFIL; the EU has played an important role in the multilateral working groups established after the 1991 Madrid Peace Conference, in particular it has been very active in the Regional Economic Development working group which it has chaired ( it is its „gavelholder“); the EU has a counter-terrorism programme of assistance to the Palestinians [80] and has granted them considerable financial assistance in other spheres [81]; it has initiated the Barcelona Process which may indirectly encourage the peace-making [82]; it has decided to work for the termination of the economic boycott against Israel by the Arab States [83]; it has even been said that at the origin of the secret negotiations in 1993 lay a research work funded by the EU.
However, on the subject of Jerusalem, the EU has not been helpful so far. As to its attitude with regard to the existing status of the city, it has completely adopted the Arab view.
Moreover, it is possible that the dispute between Israel and the Palestinians about the „Orient House“ would not have reached such intensity but for the inflammatory attitude of the EU. As to the future of the city, while supporting the negotiations between the parties, the EU still seems to prefer the corpus separatum solution which is unsuitable under the present circumstances.
However, the EU can contribute considerably to the search of a solution for the city, or different solutions for its various parts. In particular, it can serve as an inspiring precedent for models of compromise, in particular for a reduced relevance of territorial sovereignty as practised by the EU itself, and for the possibility of cooperation between neighbours without agreement on the exact location of the borders [84].
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[1] The Bessie and Michael Greenblatt Professor of International Law at the Faculty of Law and at the Department of International Relations at the Hebrew University of Jerusalem. This article was written while the author was visiting professor at the Geschwister-Scholl-Institut f¸r Politische Wissenschaft of the Ludwig-Maximilians-Universit‰t in Munich. The author wishes to express her thanks to the Center for Applied Policy Research and its director, Prof. Dr. Werner Weidenfeld, and to the Bertelsman Foundation. Many thanks are due to those who helped me at various stages to find the material upon which this article is based: Ms Isabelle Reinery, Mr. Jonathan Quivel, Ms. Alexandra Meir, and Mr. Roman Maruhn. Special thanks are due to Ms. Victoria Reichl.
[2] David Allen and Michael Smith, „ Europe, the United States, and the Arab-Israeli Conflict“, in
David Allen and Alfred Pijpers, eds., European Foreign Policy Making and the Arab-Israeli Conflict,
The Hague, Martinus Nijhoff, 1984, pp. 187-210, at p. 187; also published as David Allen and Michael
Smith, „ Europe, the United States and the Middle East: a Case Study in Comparative Policy Making“, 22 Journal of Common Market Studies, 1983, pp. 125-146, at p. 125; Ilan Greilsammer and Joseph Weiler, Europe’s Middle East Dilemma: The Quest for a Unified Stance,
Boulder, Westview Press, 1987, p. 26; Simon Nuttall, „ Two Decades of EPC Performance“,in
Elfriede Regelsberger, Philippe de Schoutheetede de Tervarent and Wolfgang Wessel, eds., Foreign
Policy of the European Union: From EPC to CFSP and Beyond, Boulder, Lynn Rienner, 1997, pp.
19-40, at p. 24
[3] Article 14 of the 1997 Treaty of Amsterdam. On joint actions, see e.g. Ramses A. Wessel, The European Union’s Foreign and Security Policy: Legal Institutional Perspective, The Hague, Kluwer, 1999, at p.116-121.
[4] Article 15 of the 1997 Treaty of Amsterdam, see Wessel, ibid., pp. 119-124
[5] Article 13 (2) ?? of the 1997 Treaty of Amsterdam; see Franco Algieri, „Die Reform der GASP - Anleitung zu begrenztem gemeinsamen Handeln“, in Werner Weidenfeld, ed., Amsterdam in der Analyse, G¸tersloh, Bertelsmann, 1998, pp. 89-120, at pp. 95-98; Uwe Schmalz (ext.), Zwischen Anspruch und Wirklichkeit: Die Amsterdamer Vend Wirklichkeit: Die Amsterdamer Vertragsbestimmungen zur Gemeinsamen Auflen-und Sicherheitspolitik - Analyse, Bewertung und Perspektiven, Sankt Augustin, Konrad-Adenauer-Stiftung, 1998, at pp.54-55
[6] Thomas Oppermann, Europarecht: Ein Studienbuch, 2. Auflage, M¸nchen, Beck, 1999, at p. 126;
Lars M¸nch, „Die gemeinsame Aktion im Rahmen der GASP: Inhalt, Rechtsnatur und Reformbed¸rftigkeit“, 1996 Europarecht, Heft 4, pp. 415-433, at p. 421; Martti Koskenniemi, „International Law Aspects of the Common Foreign and Security Policy“, in id.,ed., International Law Aspects of the European Union, The Hague, Kluwer, 1998, pp. 27-44, at p. 30 ( The author also discusses the difficulty involved in the distinction between community law and international law) ; Ian McLeod, I. D. Hendry and S. Hyett, The External Relations of the European Communities., Oxford, Clarendon Press, 1996, p. 412
[7] For the text of the letter of invitation, see Ruth Lapidoth and Moshe Hirsch, eds., The Arab-Israel Conflict and its Resolution: Selected Documents, Dordrecht, Martinus Nijhoff, 1992, at pp. 384-386
[8] Ruth Lapidoth, “ Jerusalem: Past, Present and Future“, 48 Revue internationale de droit comparÈ
(1996), pp. 9-33, at p. 25
[9] For the text , see 28 Israel Law Review (1994), pp. 440-441.
[10] For the text, see 32 International Legal Materials (1993), pp. 1525-1544. See also Joel Singer, „ The Declaration of Principles on Interim Self-Government Arrangements“, 1 Justice (1994) , pp. 4-21; Eyal Benvenisti, „ The Israel - Palestinian Declaration of Principles: A Framework for Future Settlement“, 4 European Journal of International Law (1993) , pp. 542-554; Antonio Cassese, „ The Israel - PLO Agreement and Self-Determination“, 4 European Journal of International Law (1993), pp. 564-571; Raja Shihadeh, „Can the Declaration of Principles Bring About a „ Just and Lasting Peace“ ? “, 4 European Journal of International Law (1993), pp. 555-563
[11] Declaration of Principles, supra note 10, Article 5 (3) , and Agreed Minutes to Article 4
[12] Declaration of Principles, supra note 10, Annex I, para. 1.
[13] The Jerusalem Post, 7 June 1994, at p. 1
[14] For the text, see 36 International Legal Materials (1997) , p. 551 (excerpts). The full text was published in 33 Kitvei- Amana, no. 1071, p. 1 ( Israel’s publication of treaties). See also Joel Singer, „The West Bank and Gaza Strip: Phase Two“, 7 Justice (1995) , pp. 5-17; Rotem M. Giladi, „The Practice and Case Law of Israel in Matters Related to International Law“, 29 Israel Law Review (1995), pp. 506-543; Raja Shihadeh, From Occupation to Interim Accords: Israel and the Palestinian Territories, London, Kluwer, 1997, at pp. 31-72
[15] Not published. The author expresses her thanks to Mr. Daniel Taub who kindly equipped her with a copy.
[16] Esther BarbÈ and Ferran Izquierdo, „ Present and Future of Joint Actions for the Mediterranean Region“, in Martin Holland, ed., Common Foreign and Security Policy: The Record and Reforms, London, Pinter, 1997, pp. 120-135. at. p. 130
[17] 34 International Legal Materials (1995), p. 43, Article 9. For an analysis see Reuven Merhav and Rotem Giladi; The Role of the Hashemite Kingdom of Jordan in a Future Permanent Status Settlement in Jerusalem: Legal, Political and Practical Aspects, The Jerusalem Institute for Israel Studies, 1999 (Hebrew)
[18] For the text, see Fehler! Textmarke nicht definiert. Hofo 30. See Article 1, para.c and d.
[19] 42 United Nations Treaty Series (1949) , no. 656, pp. 304-320
[20] Law and Administration Ordinance ( Amendment No. 11) Law, 5727-1967, 21 Laws of the State of Israel, Authorized Translation 5727- 1966/67, p. 75; Law and Administration Order (No. 1), 5727-1967, Kovets Hatakanot (collection of orders and regulations ), no. 2064, 5727 (19666/67), p. 2690
[21] 21 Laws of the State of Israel, Authorized Translation 5727-1966/67, p. 76.
[22] 34 Laws of the State of Israel, Authorized Translation 5740-1979/80, p.209
[23] For the text, see Bulletin of the European Communities, 6-1980, p.10. For a discussion of this declaration, see Ilan Greilsammer and Joseph Weiler, supra note 2, pp. 44-52; David Allen and Michael Smith (1983), supra note 2, at p. 133; Geoffrey Edwards, „ Common Foreign and Security Policy: Incrementalism in Action? “ in Martti Koskenniemi, ed., supra note 6, pp. 3-17, at p. 7. Simon Nuttall, supra note 2, at pp. 26-27; Panayiotis Ifestos, European Political Cooperation: Towards a Framework of Supranational Diplomacy? Avebury, Aldershot, 1987, at pp. 451-470
[24] See e.g. among many examples the reply of the Commission to a question submitted by a member of the European Parliament, 10 September 1991, OJ No. C 2, 1992, Item 45. See also the Luxembourg Declaration of the European Council of 29 June 1991, Bulletin of the European Communities, 6-1991, p. 7. at p. 16; Declaration of the Council of Ministers of 1. October 1996 in Luxembourg, Bulletin of the European Communities, 10-1996, para. 1.4.13; Declaration by the Heads of State and of Government of the European Union, Berlin 25 March 1999, Bulletin of the European Communities, 3-1999, p. 7, at p. 23
[25] International Commission of Jurists, Israel Branch??
[26] Supra, note 10, Article V (3) and Agreed Minutes B, IV (1)
[27] Supra, note 14, Article XXXI (5)
[28] Ibid., Article XXXI (7)
[29] Luxembourg Declaration by the Council of Ministers of 1 October 1996, supra note 24. See also Declaration by the Presidency of 27 February 1997, E/18/97, 6308/97 (Presse 59)
[30] Security Council, Official Records, 22nd year, Resolutions and Decisions, pp.8-9. This resolution has been the subject of differing interpretations by the parties (as shown in the text below) and of a great number of articles. Among the more recent publications, see articles by Adnan Abu Odeh, Nabil Elaraby, Meir Rosenne, Dennis Ross, Eugene Rostow and Vernon Turner, in: UN Security Council Resolution 242: The Building Block of Peacemaking, The Washington Institute for Near East Policy, 1993; Ruth Lapidoth, „Security Council Resolution 242 at Twenty Five“, 26 Israel Law Review (1992), pp. 295-318
[31] The French version reads: „retrait des forces armÈes israÈliennes des territoires occupÈs lors du rÈcent conflit“
[32] See e.g. replies by Jordan (23 March 1969) and by Lebanon ( 21 April 1969) to questions submitted by Ambassador Gunnar Jarring, in the Report by UN Secretary-General U Thant, UN Doc. S/ 10070, of 4 January 1971.
[33] Statement by Ambassador Abba Eban, UN General Assembly Official Records, 23rd session, 1686th Plenary Meeting, 8 October 1968, pp. 9-13 at 9 ( sec. 92), and 11 (sec. 110).
[34] Security Council Official Records, 1382rd meeting of 22 November 1967, p. 7, sec.61. See also Cyrus R. Vance and Joseph J. Sisco, „ Resolution 242, Crystal Clear“, The New York Times, 20 March 1988.
[35] UN Doc. S/ 8247, of 16 November 1967
[36] Charles Rousseau, Droit Internationale Public, vol. 3, Paris, Sirey, 1977, at p. 290
[37] Sir Arnold Duncan McNair, The Law of Treaties, London, Oxford University Press, 1961, p.434. The 1969 Vienna Convention on the Law of Treaties, too, implicitly refers to the original text of the document since it recommends having recourse to the preparatory work of the treaty and the circumstances of its conclusion (Article 33, sec. 4). See also Mala Tabory, Multilingualism in International Law and Institutions, Alphen, Sijthoff and Noordhoff, 1980, at p. 211 ; Sir Ian Sinclair, The Vienna Convention on the Law of Treaties, 2nd ed., Manchester University Press, 1984, at p. 152; Prosper Weil, „Le rËglement territorial dans la rÈsolution du 22 Novembre 1967“, Nouveaux Cahiers, No. 23 (Winter 1970)
[38] Shabtai Rosenne, „On Multi-Lingual Interpretation“, 6 Israel Law Review (1971), pp. 360 –365
[39] Declaration of Principles of 1993, supra note 10, Article V (3); and Interim Agreement of 1995, supra note 14, Article XXXI (5)
[40] Eugene V. Rostow, „The Perils of Positivism: A Response to Professor Quigley“, 2 Duke Journal of Comparative and International Law (1992), pp. 229-246, at p. 229
[41] See e.g. a summary of the main Opinions on the Status of Jerusalem in Ruth Lapidoth, „Jerusalem -some Jurisprudential Aspects“, in 45 Catholic University of America Law Review (1996), pp. 661-686, at pp.671-676.
[42] See, e. g., Elihu Lauterpacht, Jerusalem and the Holy Places, London, The Anglo-Israel Association, 1968, reprinted in 1980; Julius Stone, Israel and Palestine - Assault on the Law of Nations, Baltimore, The John Hopkins University Press, 1981, at pp. 116-118; Stephen Schwebel, „What Weight to Conquest? “ 64 American Journal of International Law (1970), p. 344. For a similar but not quite identical opinion, see M.I. Gruhin, „Jerusalem: Legal and Political Dimensions in Search for Peace“, 12 Case Western Journal of International Law (1980), p. 169
[43] Ibid.
[44] Yehuda Z. Blum, The Juridical Status of Jerusalem, Jerusalem, The Davis Institute for International Relations, 1974
[45] Supra Note 19
[46] Reply of 20 December 1995 by the Council to a question submitted by a member of the European Parliament, OJ of the European Communities, 39th year, C 56, of 26 February 1996
[47] See, e.g., the reply mentioned in note 46; Declaration of the Presidency of 27 February 1997, E/18/97, 6308/97 (Presse 59) of 5 March 1997; Luxembourg Declaration by the Council of Ministers, 10 October 1996, Bulletin of the European Communities, 10-1996, para.1.4.13; Presidency Conclusions of the Berlin meeting of the European Council of 25 March 1999, supra, note 24.
[48] On the Orient House, see Menahem Klein, Doves Over Jerusalem’s Sky: The Peace Process and the City 1977-1999, Jerusalem Institute of Israel Studies, 1999, at pp. 137-138
[49] Supra, note 10, Annex II Article 5
[50] Supra, note 14, Article 1 (7)
[51] Reply by the Council of 2 April 1996 to three written questions submitted in the European Parliament, OJ No. C 137, 1996, Item 7 (96/C 137/07)
[52] Reply of the Council of 20 December 1995 to a question submitted in the European Parliament, OJ, 39th year, C 56/21, of 26 February 1996
[53] Questions no. E-3151/95, P-3316/95 and P-238/96 of November 1995, to which the Council replied on 2 April 1996, supra note 51.
[54] See e.g. the Florence Declaration of the European Council of 22 June 1996, Press Release Florence (21-06-1996) - Document SN 300/96 (Presse O); Resolution of the European Parliament of 18 September 1997, OJ, 40th year, C 304, of 6 October 1997; Luxembourg Declaration by the European Council of 13 December 1997, para.71,75 and 79, Bulletin of the European Communities, 12-1997, p.8. at p. 16-17; Berlin Declaration of the European Council (Presidency Conclusions) of 25 March 1999, supra, note 24; Luxembourg Declaration of the Council of 1 October 1996, Bulletin of the European Communities 10-1996, para. 1.4.13.
[55] Ilan Greilsammer and Joseph Weiler, supra note 2, at p. 27.
[56] Ibid. p. 48
[57] Ibid. p.59
[58] Ibid. p. 58
[59] Le Soir of 28 and 29 December 1980, pp.1 and 3; International Herald Tribune of 2 March 1981, pp. 1 and 2.
[60] That is the quotation from the International Herald Tribune. The text concerning Jerusalem in Le Soir reads as follows: “Plusieurs options pour JÈrusalem.
En ce qui concerne JÈrusalem, les Neuf considËrent, en conformitÈ avec les rÈsolutions de l`O.N.U., tout ce qui a ÈtÈ fait depuis le plan de partage de la Palestine du 27 [sic.] novembre 1947, comme illÈgal. Ils proposent des lors plusieurs solutions:
-Retour au statut international de „corpus separatum“ prÈvu par le plan de partage de 1947;
- Division de la ville en plaÁant les lieux saints sous l¥autoritÈ religieuse;
- Division de la ville avec internationalisation de la vieille ville.
Dans le cas d’une division de la ville, celle-ci pourrait Ítre placÈe sous administration commune“
[61] Resolution of 18 January 1990, published in the OJ No. C 38 of 19 February 1990, at p. 77
[62] Akiva Eldar, „EU Asserts Jerusalem is not Israel“, Ha¥aretz, English edition, 11 March 1999
[63] General Assembly Official Records, 2nd session 1947, pp. 131-151
[64] Section A
[65] Section C (1) (a)
[66] Section A, and C (2).
[67] On the status quo, see L. G. A. Cust, On the Status Quo in the Holy Places, London, 1929, reprinted in 1980 by Ariel; Shmuel Berkovitz, The Legal Status of the Holy Places in Israel , Ph.D. Thesis submitted in 1978 to the Hebrew University, pp. 35-45; Izhak Englard, „The Legal Status of the Holy Places in Jerusalem“, 28 Israel Law Review (1994), pp. 589-600, at pp. 591-593
[68] UN General Assembly Official Records, 2nd session, 1947, Ad Hoc Committee on the Palestinian Question, at pp. 12-19 ( reprinted in Lapidoth and Hirsch, supra note 7, at pp. 55-56)
[69] UN General Assembly Official Records, 2nd session, 1947, Ad Hoc Committee on the Palestinian Question, at pp. 5-11; ibid., plenary meetings, vol. 2, at pp. 1425-1427 (reprinted in Lapidoth and Hirsch, supra note 7, at pp. 57-60)
[70] Charter of the United Nations, Articles 10 and 17. See also Bruno Simma, Charter of the United Nations: A Commentary, Oxford University Press, 1995, at p. 237
[71] Certain authors have, however maintained that the resolution is binding upon the parties; see Sally V. Mallison and W. Thomas Mallison, „The Jerusalem Problem in Public International Law: Juridical Status and a Start Towards Solution“, in Hans Koechler, ed., The Legal Aspects of the Palestine Problem with Special Regard to the Question of Jerusalem, Wien, Braumueller, 1981, pp. 98-119, at p. 107; Antonio Cassese, „Legal Considerations on the International Status of Jerusalem“, ibid., pp. 144-153, at pp. 149 and 151
[72] Moshe Hirsch, Deborah Housen-Couriel and Ruth Lapidoth, Whither Jerusalem? Proposals and Positions Concerning the Future of Jerusalem, The Hague, Nijhoff, and the Jerusalem Institute for Israel Studies, 1995, at pp. 139-141.
[73] Ibid., pp. 127-128
[74] Conclusion of the Presidency on the Florence deliberations of the European Council, 22 June 1996, Press Release Information: Florence ( 21- 06-1996)- Document SN 300/96 (Presse O), chapter VIII ( Declaration on the Peace Process in the Middle East); The 1980 Venice Declaration, para. 8, supra, note 23
[75] See e. g. Sven Behrendt, „Europe in the Middle East: The Underestimated Actor: Introduction“, in Sven Behrendt and Christian Peter Hanelt, eds., The Political Role of the European Union in the Middle East, Munich/G¸tersloh, Bertelsmann, 1998, pp. 1-10, at p. 1-4; Gerald M. Steinberg, The European Union and the Middle East Peace Process, Jerusalem Letter/ Viewpoints, No. 418, 15 November 1999 ( published by the Jerusalem Center for Public Affairs); id., „Searching for a Sustainable Peace Settlement Between Israel and its Neighbours: An Israeli View“, in Sven Behrendt and Christian Peter Hanelt, eds., Security in the Middle East, Munich/ G¸tersloh, Bertelsmann, 1999, pp. 19-24; Joel Peters, „Europe and the Arab-Israeli Peace Process: The Declaration of the European Council of Berlin and Beyond“, ibid., pp. 25-40, at p. 27, 31-37
[76] Joel Peters, ibid., p. 32-34; Joseph Alpher, „The Political Role of the EU in the Middle East: Israeli Aspirations“, in Sven Behrendt and Christian Peter Hanelt, eds., The Political Role of the European Union in the Middle East, supra note 75, pp. 71-79, at pp. 74-75. The Special Envoy’s mandate was defined in a Joint Action adopted on 25 Nov. 1996 by the Council ( 96/ 676/CFSP), OJ No L 315/1, of 4 December 1996. The author wishes to express her thanks to Dr. Sven Behrendt for having provided her this document.
[77]See the Venice Declaration, supra note 56
[78] The Luxembourg Declaration of the European Council of 13 December 1997, para. 83, supra note 54; The Berlin Declaration ( Presidency Conclusions) of the European Council of 25 March 1999, supra note 24.
[79] Alfed Pijpers, „European Participation in the Sinai Peace-Keeping Force (MFO)“, in David Allen and Alfred Pijpers, eds., European Foreign Policy-Making and the Arab-Israeli Conflict, The Hague, Nijhoff, 1984, pp. 211-223
[80] Esther BarbÈ and Ferran Izqierdo, supra note 16, at p. 130
[81] Ibid.
[82] Joel Peters, „The Barcelona Process and Arab-Israeli Multilateral Talks: Competition or Convergence? “, in Sven Behrendt and Christian Peter Hanelt, (eds.), The Political Role of the European Union in the Middle East, supra note 75, pp. 43-56, at pp. 50-54; Esther BarbÈ and Ferran Izqierdo, supra note 16, at pp. 120-129.
[83] Resolution of the Council about a Joint Action to support the Peace Process in the Middle East, Resolution 94/276/GASP, Bulletin of the European Communities, 4-1994, p.66
[84] E.g., the cooperation between Germany and the Netherlands in the Ems-Dollard area, despite disagreement about the location of the boundary. See Georg Nolte, „Ems-Dollard“, in Rudolf Bernhardt, ed., Encyclopedia of Public International Law, vol. 2 (1995), pp. 78-80.
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