Positions on Jerusalem

There is significant disagreement in the international community on the legal and diplomatic status of Jerusalem. Legal scholars disagree on how to resolve the dispute under international law. Many United Nations (UN) member states formally adhere to the United Nations proposal that Jerusalem should have an international status.

The chief dispute revolves around the legal status of East Jerusalem, while broader agreement exists regarding the Israeli presence in West Jerusalem. De jure, the majority of UN member states and most international organisations do not recognise Israel's ownership of East Jerusalem which occurred after the 1967 Six-Day War, nor its 1980 Jerusalem Law proclamation, which declared a "complete and united" Jerusalem as the capital of Israel. As a result, foreign embassies are generally located in Tel Aviv and its suburbs.

Jerusalem is one of the key issues in the Israeli–Palestinian peace process. Both Israel and the Palestinians want it as their capital.

The European Union has stated that Jerusalem's status is that of corpus separatum.

Background

See also: Timeline of Jerusalem

Jerusalem municipal area

From 1517 until the First World War, Jerusalem was part of the Ottoman Empire. Since the 1860s, Jews have formed the largest religious group in the city and since around 1887, Jews have been in the majority. In the 19th century, European powers vied for influence in the city, usually on the basis of extending protection over Christian churches and Holy Places. A number of these countries also established consulates in Jerusalem. In 1917 and following the First World War, Great Britain was in control of Jerusalem; from 1923 as part of the Mandate of Palestine. The principal Allied Powers recognized the unique spiritual and religious interests in Jerusalem among the world's three great monotheistic religions as "a sacred trust of civilization", and stipulated that the existing rights and claims connected with it be safeguarded in perpetuity, under international guarantee.

However, the Arab and Jewish communities in Palestine were in mortal dispute and Britain sought United Nations assistance in resolving the dispute. In November 1947, the United Nations General Assembly adopted the United Nations Partition Plan for Palestine (Resolution 181), which called for the partition of Palestine into Arab and Jewish states, with Jerusalem being established as a corpus separatum, or a "separated body" with a special legal and political status, administered by the United Nations. Jewish representatives accepted the plan, however, representatives of the Palestinian Arabs and the Arab states rejected the plan, declaring it illegal.

In May 1948, the Jewish community in Palestine issued the declaration of the establishment of the State of Israel. The new state was quickly recognised de facto by the United States, Iran (which had voted against the UN partition plan), Guatemala, Iceland, Nicaragua, Romania, and Uruguay. The Soviet Union was the first nation to fully recognize Israel de jure on 17 May 1948, followed by Poland, Czechoslovakia, Yugoslavia, Ireland, and South Africa. The United States extended official recognition after the first Israeli election, on 31 January 1949. Israel became a member of the United Nations on 11 May 1949. The states recognizing Israel did not recognize its sovereignty over Jerusalem generally citing the UN resolutions which called for an international status for the city.

With the declaration of the establishment of the State of Israel and the subsequent invasion by surrounding Arab states, the UN proposal for Jerusalem never materialised. The 1949 Armistice Agreements left Jordan in control of the eastern parts of the city, while the western sector was held by Israel. Each side recognised the other's de facto control of their respective sectors. The Armistice Agreement, however, was considered internationally as having no legal effect on the continued validity of the provisions of the partition resolution for the internationalisation of Jerusalem. Soon after Israel declared that Jerusalem was an inseparable part of the State of Israel and its eternal capital. In 1950, Jordan annexed eastern Jerusalem. Though the United Kingdom and Pakistan recognized Jordanian rule over eastern Jerusalem, no other foreign country recognized either Jordanian or Israeli rule over the respective areas of the city under their control.

Following the 1967 war, Israel declared that Israeli law would be applied to East Jerusalem and enlarged its eastern boundaries, approximately doubling its size. The action was deemed unlawful by other states who did not recognize it. It was condemned by the UN Security Council and General Assembly who described it as an annexation in violation of the rights of the Palestinian population. In 1980, Israel passed a law declaring that "Jerusalem, complete and united, is the capital of Israel". The law was declared null and void by the Security council in Resolution 478 and in numerous resolutions by the UN General assembly.

United Nations

Further information: Corpus separatum (Jerusalem)

The United Nations considers East Jerusalem to be occupied Palestinian territory. It envisions Jerusalem eventually becoming the capital of two states, Israel and Palestine.

United Nations General Assembly resolution 181 (II), passed on November 29, 1947, provided for the full territorial internationalisation of Jerusalem: "The City of Jerusalem shall be established as a corpus separatum under a special international regime and shall be administered by the United Nations." This position was restated in the wake of the 1948 Arab–Israeli War in UN General Assembly Resolution 303(IV) of 1949. According to a 1979 report prepared for and under the guidance of the Committee on the Exercise of the Inalienable Rights of the Palestinian People, it would appear that the United Nations has maintained the principle that the legal status of Jerusalem is that of a corpus separatum.

The United Nations General Assembly does not recognize Israel's proclamation of Jerusalem as the capital of Israel, which is, for example, reflected in the wording of General Assembly Resolution 63/30 of 2009 which states that "any actions taken by Israel, the occupying Power, to impose its laws, jurisdiction and administration on the Holy City of Jerusalem are illegal and therefore null and void and have no validity whatsoever, and calls upon Israel to cease all such illegal and unilateral measures."

A total of six UN Security Council resolutions on Israel have denounced or declared invalid Israel's control of the city, including UNSC resolution 478 which affirmed that the enactment of the 1980 Basic Jerusalem Law declaring unified Jerusalem as Israel's "eternal and indivisible" capital, was a violation of international law. The resolution advised member states to withdraw their diplomatic representation from the city.

The UN including the Security Council have consistently affirmed its position that East Jerusalem is occupied territory subject to the provisions of the Fourth Geneva Convention. The International Court of Justice in its 2004 Advisory opinion on the "Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory" described East Jerusalem as "occupied Palestinian territory."

Israel

Israel's parliament

Israel declared Jerusalem as its capital, later annexed East Jerusalem and declared the united city its capital. Most Israeli governments rejected calls to divide Jerusalem and proclaimed that it would remain united under Israeli sovereignty, though some Israeli governments were willing to discuss a division of the city. Israel has also suggested that the future capital of a Palestinian state should be in the Jerusalem suburb of Abu Dis.

Israel claims it acquired sovereignty over the western part of the city in 1948. Upon the departure of Britain, the area remained without a sovereign and during the war, Israel took control of it. Jerusalem was declared as the capital of Israel in 1949. Following the 1967 Six-Day War, Israel extended its jurisdiction and administration over eastern Jerusalem, establishing new municipal borders. It also ensured protection and freedom of access to the holy sites of the city. Although at the time Israel informed the UN that its actions had not constituted annexation but rather administrative and municipal integration, later rulings by the Israeli Supreme Court indicated that the eastern sector had become part of Israel. Israel was of the view that Jordan had taken the eastern part of the city by an act of aggression in 1948 and therefore never acquired sovereignty, and that Israel conquered it in 1967 during a war of self-defence and therefore had the stronger right to the land.

In July 1980, the Knesset passed the Jerusalem Law as part of the country's Basic Law. The law declared Jerusalem the unified capital of Israel. The Knesset together with the presidential, legislative, judicial and administrative offices are all located within the city.

In November 2010, the Knesset passed a law which requires approval in a public referendum and the votes of at least 60 Knesset members before any withdrawal from East Jerusalem or the Golan Heights.

Israel believes that there is no basis in international law for the position supporting a status of corpus separatum for the city of Jerusalem. Israel holds that it was a non-binding proposal which never materialised, having become irrelevant when the Arab states rejected United Nations General Assembly Resolution 181 and invaded the fledgling State of Israel. Neither has there ever been any agreement, treaty, or international understanding which applies the corpus separatum concept to Jerusalem.

Positions on the future status Jerusalem have varied with different Israeli governments. Despite having signed the Oslo Accords which declared that the future status of Jerusalem would be negotiated, Israeli Prime Minister Yitzhak Rabin declared that he would never divide the city. In 1995, he told a group of schoolchildren that "if they told us peace is the price of giving up a united Jerusalem under Israeli sovereignty, my reply would be 'let's do without peace'". This position was upheld by his successor, Benjamin Netanyahu. Netanyahu's successor, Ehud Barak, became the first Israeli Prime Minister to agree to the division of Jerusalem despite his campaign promises. Prime Minister Ariel Sharon vowed to keep Jerusalem the "undivided, eternal capital of the Jewish people", while his successor Ehud Olmert supported the detachment of several Arab neighborhoods from Israeli sovereignty and the introduction of an international trust to run the Temple Mount. When Netanyahu succeeded Olmert, he declared that "all of Jerusalem would always remain under Israeli sovereignty" and that only Israel would "ensure the freedom of religion and freedom of access for the three religions to the holy places". These statements seem to closely echo many of the Israeli populace's opinions. According to a 2012 poll by the Jerusalem Center for Public Affairs, 78% of Jewish voters who responded said that they would reconsider voting for any politician that wants to relinquish Israel's control over the Old City and East Jerusalem

On 17 May 2015, Prime Minister Netanyahu reiterated, regarding Jerusalem serving as the capital of both Israel and a future Palestinian state, “Jerusalem has forever been the capital of only the Jewish people and no other nation.”

Palestinian National Authority

The Palestinian National Authority views East Jerusalem as occupied territory according to United Nations Security Council Resolution 242. The Palestinian Authority claims all of East Jerusalem, including the Temple Mount, as the capital of the State of Palestine, and claims that West Jerusalem is also subject to permanent status negotiations. However, it has stated that it would be willing to consider alternative solutions, such as making Jerusalem an open city. The official position of the PNA is that Jerusalem should be an open city, with no physical partition and that Palestine would guarantee freedom of worship, access and the protection of sites of religious significance.

European Union

The European Union currently views the status of Jerusalem as that of a corpus separatum including both East and West Jerusalem as outlined in United Nations Resolution 181. In the interest of achieving a peaceful solution to the Arab-Israeli conflict, it believes a fair solution should be found regarding the issue of Jerusalem in the context of the two-state solution set out in the Road Map. Taking into account the political and religious concerns of all parties involved, it envisions the city serving as the shared capital of Israel and Palestine.

The EU opposes measures which would prejudge the outcome of permanent status negotiations on Jerusalem, basing its policy on the principles set out in UN Security Council Resolution 242, notably the impossibility of acquisition of territory by force. It will not recognise any changes to pre-1967 borders with regard to Jerusalem, unless agreed between the parties. It has also called for the reopening of Palestinian institutions in East Jerusalem, in accordance with the Road Map, in particular Orient House and the Chamber of Commerce, and has called on the Israeli government to cease all discriminatory treatment of Palestinians in East Jerusalem, especially concerning work permits, access to education and health services, building permits, house demolitions, taxation and expenditure."

"The European Union set out its position in a statement of principles last December. A two-state solution with Israel and Palestine side by side in peace and security. A viable state of Palestine in the West Bank, including East Jerusalem, and the Gaza Strip, on the basis of the 1967 lines. A way must be found to resolve the status of Jerusalem as the future capital of both Israel and Palestine." - Catherine Ashton, High Representative for Foreign Affairs and Security Policy of the European Union

Russia

Russia views as desirable the establishing of an international regime for the city and is against Israeli settlement construction in East Jerusalem. On March 2010 Russian Foreign Minister Sergey Lavrov said: "Israel's plans to continue the construction activities were unacceptable and could hamper the reconciliation process". In January 2011, reaffirming Russia's recognition of the State of Palestine, president Medvedev said Russia "supported and will support the inalienable right of the Palestinian people to an independent state with its capital in East Jerusalem."

United States

File:Greater Jerusalem May 2006 CIA remote-sensing map 3500px.jpg

Greater Jerusalem, May 2006. CIA remote sensing map showing what they regard as settlements, plus refugee camps, fences, walls, etc.

The United States views as desirable the establishing of an international regime for the city. Its final status must be resolved through negotiations and it does not recognise Jerusalem as Israel's capital.

United States policy on Jerusalem refers specifically to the geographic boundaries of the "City of Jerusalem" based on the UN's corpus separatum proposal. De jure, Jerusalem is part of the Palestine Mandate and has not been under sovereignty of any country since.

The United States voted for the United Nations Partition Plan for Palestine in November 1947 and United Nations General Assembly Resolution 194 in December 1948 following the 1948 Arab-Israeli War but voted against Resolution 303 in December 1949 that reaffirmed that Jerusalem be established a corpus separatum under a special international regime to be administered by the United Nations because the U.S. regarded the plan as no longer feasible after both Israel and Jordan had established a political presence in the city.

The U.S. opposed Israel's moving its capital from Tel Aviv to West Jerusalem following Israel's declaration of Jerusalem as its capital in 1949 and opposed Jordan's plan to make Jerusalem its second capital announced in 1950. The U.S. opposed Israel's annexation of East Jerusalem after the 1967 war. The United States has proposed that the future of Jerusalem should be the subject of a negotiated settlement. Subsequent administrations have maintained the same policy that Jerusalem's future not be the subject of unilateral actions that could prejudice negotiations such as moving the U.S. Embassy from Tel Aviv to Jerusalem.

In 2002, passed as part of the "Foreign Relations Authorization Act, Fiscal Year 2003" Congress said, "For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel," although Presidents George W. Bush and Barack Obama have not allowed it. A federal appeals court declared the 2002 law invalid on 23 July 2013. On 8 June 2015, The Supreme Court in a 6-3 ruling struck down Section 214(d) of the Foreign Relations Authorization Act, FY 2003, citing the law as an overreach of Congressional power into foreign policy.

President George H. W. Bush (1989–1993) stated that the United States does not believe new settlements should be built in East Jerusalem and that it does not want to see Jerusalem "divided". The Obama administration has condemned expansion of Gilo and Ramat Shlomo as well as evictions and house demolitions affecting Palestinians living in East Jerusalem.

The United States maintains a consulate in Jerusalem that deals primarily with the Palestinian Authority, while relations with the Israeli government are handled from the U.S. embassy in Tel Aviv. The U.S. consulate is not accredited to the Israeli government. The U.S. has six buildings in Jerusalem with a staff of 471. In 2010 the consulate had a budget of $96 million.

United Kingdom

The United Kingdom position on Jerusalem states, "Jerusalem was supposed to be a ‘corpus separatum’, or international city administered by the UN. But this was never set up: immediately after the UNGA resolution partitioning Palestine, Israel occupied West Jerusalem and Jordan occupied East Jerusalem (including the Old City). We recognised the de facto control of Israel and Jordan, but not sovereignty. In 1967, Israel occupied E Jerusalem, which we continue to consider is under illegal military occupation by Israel. Our Embassy to Israel is in Tel Aviv, not Jerusalem. In E Jerusalem we have a Consulate-General, with a Consul-General who is not accredited to any state: this is an expression of our view that no state has sovereignty over Jerusalem."

The UK believes that the city's status has yet to be determined, and maintains that it should be settled in an overall agreement between the parties concerned, but considers that the city should not again be divided. The Declaration of Principles and the Interim Agreement, signed by Israel and the PLO on 13 September 1993 and 28 September 1995 respectively, left the issue of the status of Jerusalem to be decided in the ‘permanent status’ negotiations between the two parties.

In 2012, the UK Press Complaints Commission initially ruled that the newspaper The Guardian had not acted wrongly in writing that "Jerusalem is not the capital of Israel; Tel Aviv is," but this was later overturned. In the latter ruling, the UK Press Complaints Commission ruled that The Guardian was wrong to refer to the Israeli capital unequivocally as Tel Aviv, saying that this "had the potential to mislead readers and raised a breach of... the Editors’ Code of Practice." In addition, prior to the latter ruling, The Guardian retracted their statement, saying, "While it was therefore right to issue a correction to make clear Israel's designation of Jerusalem as its capital is not recognised by the international community, we accept that it is wrong to state that Tel Aviv – the country's financial and diplomatic centre – is the capital".

Other countries

• Australia: Australia does not officially recognize Jerusalem as Israel's capital and maintains its embassy in Tel Aviv.
• Canada: "Canada considers the status of Jerusalem can be resolved only as part of a general settlement of the Palestinian–Israeli dispute. Canada does not recognize Israel's unilateral annexation of East Jerusalem." In the fact sheet on Israel displayed on the Canadian Foreign Affairs Department's website, the "Capital" field states that "While Israel designates Jerusalem as its capital, Canada believes that the final status of the city needs to be negotiated between the Israelis and Palestinians. At present, Canada maintains its Embassy in Tel Aviv.".
• Denmark: "Israel has declared Jerusalem to be its capital. Due to the conflict and unclear situation concerning the city's status foreign embassies are in Tel Aviv."
• Finland: "Israel considers Jerusalem to be its capital city. The international community has not recognized this. The Finnish embassy is in Tel Aviv."
• France: "It is up to the parties to come to a final and overall agreement with regard to the final status, which would put an end to the conflict. France believes that Jerusalem must become the capital of the two States."
• Germany: According to the German Federal Foreign Office: "Capital city (not internationally recognized): Jerusalem" The German embassy is in Tel Aviv.
• Italy: "Endorsing the stance of the European Union in this regard, Italy does not recognise the legitimacy of any border changes that are not agreed between the parties. The question of Jerusalem is extremely sensitive, being the home to the Holy Places belonging to the three great monotheistic religions. To resolve this issue it will be necessary for the parties to reach a difficult, but possible, agreement to safeguard the special character of the city and meet the expectations of both peoples."
• Japan: "Japan cannot recognize such a unilateral change to the legal status of an occupied territory, which is in total violation of the relevant United Nations resolutions." "Japan believes that issues relating to Jerusalem should be resolved through the permanent status negotiations between the parties concerned, and until such a solution is achieved both parties should refrain from taking any unilateral action relating to the situation in Jerusalem."
• Norway: "Norway considers the Israeli presence in East Jerusalem to be in violation of international law, as does the entire international community."
• Saudi Arabia: A just solution must be reached regarding the issue of Jerusalem in line with UN Security Council Resolutions 242 and 338. It views the Israeli expansion of the geographical boundaries of Jerusalem as illegal and a violation of international agreements.
• Sweden: "Sweden, like other states, does not recognise Jerusalem as Israel's capital, which is why the embassy is in Tel Aviv."
• Vatican City: The Holy See has expressed the position that Jerusalem should become an international city, either under the United Nations or a related organization. Pope Pius XII was among the first to make such a proposal in the 1949 encyclical Redemptoris nostri cruciatus. This idea was later re-proposed during the papacies of John XXIII, Paul VI and John Paul II.

Location of foreign embassies

Subsequent to UNSC resolution 478, 13 countries (Bolivia, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, the Netherlands, Panama, Uruguay and Venezuela) which had maintained their embassies in Jerusalem, moved their embassies out of the city, primarily to Tel Aviv. Costa Rica and El Salvador moved theirs back to Jerusalem in 1984. Costa Rica moved its embassy back to Tel Aviv in 2006 followed by El Salvador a few weeks later. No international embassy remains in Jerusalem, although Bolivia had its embassy in Mevasseret Zion, a suburb 10 kilometres (6.2 mi) west of the city, until relations were severed in 2009.

Various countries recognized Israel as a state in the 1940s and 1950s, but they did not recognize Israeli sovereignty over West Jerusalem. There is an international sui generis consular corps in Jerusalem. It is commonly referred to as the "Consular Corps of the Corpus Separatum". The states that have maintained consulates in Jerusalem say that it was part of Mandate Palestine, and in a de jure sense, has not since become part of any other sovereignty. The Netherlands maintains an office in Jerusalem serving mainly Israeli citizens. Other foreign governments base Consulate General offices in Jerusalem, including Greece, Spain, the United Kingdom and the United States. Since the President of Israel resides in Jerusalem and confirms the foreign diplomats, the ambassadors have to travel from Tel Aviv to Jerusalem to submit letters of credentials upon being appointed.

United States Embassy

Main article: Jerusalem Embassy Act

The United States maintains its embassy in Tel Aviv, and a Consulate General in Jerusalem as part of the "Consular Corps of the Corpus Separatum". Under the Constitution of the United States the President has exclusive authority to recognize foreign sovereignty over territory. The Congress has adopted a number of concurrent resolutions which support recognition of a united Jerusalem as the capital of Israel and urging Jerusalem as the site of the U.S. embassy. The resolutions expressed the "sense" of the House or Senate but had no binding effect. The Jerusalem Embassy Act of 1995 stated that "Jerusalem should be recognized as the capital of the State of Israel; and the United States Embassy in Israel should be established in Jerusalem no later than May 31, 1999". The Justice Department Office of Legal Counsel concluded that the provisions of the bill invade exclusive presidential authorities in the field of foreign affairs and are unconstitutional. The fact that a U.S. embassy is located in a particular city, like Tel Aviv, does not legally mean that the U.S. recognizes that city as a capital. Experts in the field of foreign relations law have said that, faced with congressional force majeure, the State Department could simply construct another embassy in Jerusalem and continue to argue that the U.S. does not recognize Jerusalem as the capital. The U.S. Consulate relocated to the neighborhood of Talpiot to provide visa and other consular services to residents of Jerusalem and the Palestinian Territories.

See also

• Green Line (Israel)
• Foreign relations of Israel
• Corpus separatum (Jerusalem)