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There are differing legal and diplomatic positions on Jerusalem held within the international community.[1] Governments and scholars alike are divided over the legal status of Jerusalem under international law.[2] Most countries of the world do not recognize Jerusalem as Israel's capital. Many do not recognize it as a city that is properly Israel's. Many UN member states formally adhere to the United Nations proposal that Jerusalem should have an international status.[3]
The chief dispute revolves around Israel’s control of East Jerusalem, while broader agreement exists regarding the Israeli presence in West Jerusalem.[2] De jure, the majority of UN member states and most international organisations do not recognise Israel's control 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.[4] As a result, foreign embassies are generally located in Tel Aviv and its suburbs, or suburbs of Jerusalem such as Mevaseret Zion.[3]
Jerusalem is a contentious issue in final status peace talks between Israel and the Palestinian National Authority, which claims Jerusalem as Al Quds, the capital of a future Palestinian state.[5] Israeli Prime Minister Binyamin Netanyahu has stated that “Jerusalem belongs to the Jewish people and will remain under Israeli sovereignty for eternity.”[6]
Other organizations and communities advocate Jerusalem should be an international city.[7]
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From 1517 onwards the city was part of the Ottoman Empire and since 1830, it has had a Jewish majority.[8] The 19th-century saw European countries vying for influence in the city, with some extending their protection over various Christian churches and Holy Places. A number of them also established consulates in Jerusalem. In 1917, following the First World War, Great Britain took control of Jerusalem. 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.[9]
Preceding the termination of the British Mandate of Palestine in May 1948, Great Britain requested that the United Nations General Assembly solve the territorial dispute between Arabs and Jews regarding Palestine. In November 1947 it adopted Resolution 181, which called for the partition of Palestine into an Arab and Jewish state, with Jerusalem being established as a corpus separatum, or a "separated body" with a special legal and political status, administered by the United Nations and separate from both states named in the 1947 United Nations Partition Plan for Palestine.[10] Jewish representatives accepted the plan on the assumption that the Arabs would do likewise. However, the representatives of the Palestinian Arabs and the Arab states rejected the plan, claiming it was illegal.[2]
With the declaration of the establishment of the State of Israel in May 1948 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.[11] Each side recognised the other's de facto control of their respective sectors.[12] 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.[13] 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. Foreign states did not recognise Jordanian or Israeli rule over the respective areas of the city under their control.[11]
The UNGA has stated that the international community, through the United Nations has a legitimate interest, regarding the protection of Jerusalem's unique spiritual, religious and cultural dimensions.[15] Its position on the question of Jerusalem is based upon General Assembly resolution 181 (II) November 29, 1947, which provides 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."[16] 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 UN has maintained that until the final status of the city is agreed by the parties involved, the legal status of the city remains a corpus separatum.[17]
The United Nations General Assembly (UNGA) does not recognise 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."[15]
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.
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 by a lawful act of self-defence.[11] 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 since Jordan had taken the eastern part of the city by an act of aggression in 1948, it never acquired sovereignty, and since Israel conquered it in 1967 during a war of self-defence, it had the stronger right to the land.[11]
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.[18] 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.[19]
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.[20]
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.[21] Prime Minister Ariel Sharon vowed to keep Jerusalem the "undivided, eternal capital of the Jewish people",[22] while his successor Ehud Olmert supported the detachtment of several Arab neighborhoods from Israeli sovereignty and the introduction of an internation trust to run the Temple Mount. When Netanyahu succeeded Olmert, he declared that Jerusalem would remain Israel's undivided and eternal capital, but that the city would be open to those of all faiths.
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."[28]
"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[29]
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.[35] President Bush (1989–1993) stated that the United States does not believe new settlements should be built in East Jerusalem[36] and that it does not want to see Jerusalem "divided". In a speech in June 2008, then-presidential-candidate Barack Obama said "Jerusalem will remain the capital of Israel, and it must remain undivided."[37] The Obama administration has condemned expansion of Gilo and Ramat Shlomo as well as evictions and house demolitions affecting Palestinians living in East Jerusalem.[38][39][40]
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.[41] The U.S. opposed Israel’s moving its capital from Tel Aviv to 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.[41] The U.S. opposed Israel’s annexation of East Jerusalem after the 1967 war.[41] 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.[42] The United States has proposed that the future of Jerusalem should be the subject of a negotiated settlement.[41] 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.[41] In 2002, Congress passed legislation that said that American citizens born in Jerusalem may list "Israel" as their country of birth, although Presidents George W. Bush and Barack Obama have not allowed it.[43] The US maintains six buildings in Jerusalem with a staff of 471. In 2010 it had a budget of $96 million[44]
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.[45] 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.[45]
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.[59][60] No international embassy remains in Jerusalem, although Paraguay has its embassy in Mevasseret Zion, a suburb 10 km west of the city,[61] as did Bolivia until relations were severed in 2009.[61][62]
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.[13] 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.[63] 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.
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".[64] Under the Constitution of the United States the President has exclusive authority to recognize foreign sovereignty over territory.[65] 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.[66] 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. doesn't recognize Jerusalem as the capital."[67] 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.[68]
"The area known as 'Greater' Jerusalem usually refers to an approximately 100-square-mile (260 km2) space surrounding the Old City of Jerusalem. This area includes both West and East Jerusalem, including the adjacent neighborhoods outside of the municipal boundaries of the city. ... Regarding the route of Israel’s security fence in the Jerusalem area, there have been a few competing strategies: to reinforce the municipal boundaries of the city, to alter the demographics in Israel’s favor, and to permanently draw the lines for 'Greater' Jerusalem."
"The Israeli proposal included the following main points: 1. Jewish areas outside Jerusalem's municipal boundaries would be annexed to the city, including such population centers as Givat Ze'ev, Ma'aleh Adumim and Gush Etzion. (Gush Etzion is a major settlement block just south of Jerusalem, and is not shown on the map)."
IRIS.org (Information Regarding Israel's Security).
Map Centre of OCHA oPt (United Nations Office for the Coordination of Humanitarian Affairs – occupied Palestinian territory): [15]
Palestinian Academic Society for the Study of International Affairs (PASSIA). Jerusalem maps section: [17]
Jerusalem Center for Public Affairs study on the Division of Jerusalem. Nadav Shagrai, "Jerusalem: The Dangers of Division. An Alternative to Separation from the Arab Neighborhoods" (2008): [22]
Palestine Center report on a briefing by Stephen Zunes. Lehman, Wendy. "The Evolution of U.S. Policy on Jerusalem: International Law versus the Rule of Force," (2001): [23]