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The United States and the Status of Jerusalem 1947–1984

Published online by Cambridge University Press:  16 February 2016

Shlomo Slonim
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The United States has been involved in the question of Jerusalem ever since the American government assumed a major role in promoting adoption of the Palestine Partition Resolution at the United Nations in 1947. The continuing centrality of the Jerusalem issue in the Arab-Israeli dispute is attested to by the references to Jerusalem in the 1982 Reagan Plan for Peace in the Middle East. Even more significant is the fact that although the Jerusalem issue did not figure in the text of the 1978 Camp David Agreements, it was the subject of three separate letters appended to the Agreements by Prime Minister Begin, President Sadat and President Carter. In fact, it is no secret that the Camp David Talks nearly foundered at the last minute over the Jerusalem question. Moreover, it is noteworthy that the United States, which signed the Agreements simply as a witness and not as a party, found it necessary and proper to publicly define its position on the issue of Jerusalem. On no other issue did the American government feel compelled to put forth an official independent viewpoint in the final documents.

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Israel Law Review , Volume 19 , Issue 2 , Spring 1984 , pp. 179 - 252
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1984

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References

1 The plan was announced on Sept. 1, 1982. For the text see, Weekly Compilation of Presidential Documents, Monday, Sept. 6, 1982, Vol. 18, No. 35, pp. 1081–85. For detailed discussion of the Reagan position on Jerusalem, see below, nn. 215 ff. and accompanying text.

2 Known officially as A Framework for Peace in the Middle East. For the text, see Public Papers of the Presidents, Jimmy Carter, 1978, Vol. 2, (Washington, D.C.: Government Printing Office, 1979) Sept. 17, 1978, pp. 1523–28; and Sept. 22, 1978, pp. 1566–68. Reproduced in (1980) 15 Is. L. R. 284–301.

3 See, for example, the report of former Israeli Ambassador to Washington, Simcha Dinitz, who was present at Camp David. Jerusalem Post, Sept. 19, 1979, p. 3. See also below, Sec. V.

4 The text of the three letters reads as follows:—

Inquiries of Prime Minister Begin's office did not elicit an explanation as to why the Carter letter was addressed to President Sadat alone. But see below, n. 190 and accompanying text.

5 Resolution 181 (II). For the text, see GAOR, 2nd Sess., Resolutions, 16 Sept-29 Nov. 1947, pp. 131 ff. Reprinted in Foreign Relations of the United States, 1948, Vol. 5, Part 2, The Near East, South Asia and Africa (Washington, D.C.: Government Printing Office, 1976) 1709 ff. (Hereinafter cited as FRUS 1948).

6 Ostensibly, the purpose of extending the boundaries thus was to include remote Holy Places within the precincts of Jerusalem. More accurately, however, it was clearly designed to balance the Jewish population of the city. Jerusalem proper, covering the Old City and the new section, had, in 1948, an overwhelming Jewish majority. For figures, see Aumann, Moshe, “Jerusalem” (Jerusalem: Israel Digest, 1968) 30Google Scholar. See also Marie Syrkin, “Jerusalem Belongs to Israel,” New Republic, Dec. 13, 1980. Redrawing the boundaries, as Jewish Agency representative M. Eliash said to U.S. representative Gerig, B., “watered down our [Jewish] majority to a fifty-fifty proportion.” State of Israel, Political and Diplomatic Documents, December 1947-May 1948 (Jerusalem: Government Printer, 1979) 142.Google Scholar (Hereinafter cited as Israeli State Documents: Pre-state volume). As Menahem Kaufman has written: “It would seem that the sponsors of the resolution wished to increase the proportion of Arabs in the population.” This is why “the territory of the international zone included the Arab villages around Jerusalem”. America's Jerusalem Policy: 1947–1948 (Jerusalem: Institute of Contemporary Jewry, Hebrew University, 1982) 8.

7 Thus, the United States, together with Sweden, took the initiative in proposing that the General Assembly accept the basic principles of the UNSCOP majority plan. UN Doc. A/AC.14/16, in GAOR, 2nd Sess., Ad Hoc. Pol. Ctte., Annex 6, Oct. 13, 1947.

8 Foreign Relations of the United States, 1947, Vol. 5, The Near East and Africa (Washington, D.C.: Government Printing Office, 1971) 1250. (Hereinafter cited as FRUS 1947).

9 See editorial note FRUS 1948, pp. 837–38. For text, see TCOR, 2nd Sess., 3rd Part, Annex, pp. 4 ff. Letter dated April 21, 1948, from Secretary-General to President of General Assembly, U.N. Doc. A/541, in GAOR, 2nd Sess., 1948, Annex to vols. 1 and 2, p. 5. For a discussion of the U.S. role in the Trusteeship Council, see Kaufman, , America's Jerusalem Policy, 1947–1948, pp. 1–10.Google Scholar

10 FRUS 1948, pp. 742–44. Reprinted from SCOR, 1948, pp. 157–68.

11 See memorandum by Dean Rusk, Director of UN Affairs in the State Department, to Secretary of State, March 22, 1948. FRUS 1948, pp. 750–51. In Kaufman's words, “the American announcement of policy reversal had rendered obsolete the question of the constitution of the Jerusalem enclave under UN administration”. America's Jerusalem Policy, 1947–1948, p. 15.

12 See, for example, the discussion of such proposals, as reported in FRUS 1948, pp. 860–62, 871, and 912–14. See also Eugene Bovis, H., The Jerusalem Question (Stanford, Calif.: Hoover Institution Press, 1971) 54–56Google Scholar; Brecher, Michael, Decisions in Israel's Foreign Policy (London: Oxford University Press, 1974) 21–22Google Scholar and Kaufman, , America's Jerusalem Policy, 1947–1948, pp. 16–39.Google Scholar

13 See FRUS 1948, pp. 996–97 and n. 1.

14 On the struggle for Jerusalem in the framework of Israel's War of Independence, see Lorch, Netanel, The Edge of the Sword: Israel's War of Independence (Jerusalem: Massada Press, 1961)Google Scholar, passim; and Joseph, Dov, The Faithful City: The Siege of Jerusalem, 1948 (New York: Simon and Schuster, 1960).Google Scholar For a popular account, see Collins, Larry and Lapierre, Dominique, O Jerusalem (London: Weidenfeld and Nicolson, 1972).Google Scholar See also FRUS 1948, pp. 1041–42 and n. 2.

15 See Lorch, , Edge of Sword, pp. 209–18.Google Scholar

16 See UN Docs. S/750, S/758, S/761, S/762, S/764, and S/765. See also memorandum of conversation between Secretary of State Marshall and Moshe Shertok (Sharett), March 26, 1948, as reported in FRUS 1948, p. 763, and also in Israeli State Documents: Pre-state volume, p. 520. See also ibid., at 214, 374–75, 591–92. For a particularly moving appeal by Moshe Shertok to the Security Council on the subject of Jerusalem, see SCOR, 3rd Yr., 277th Mtg., April 1, 1948, p. 21; reproduced in Medzini, Meron (ed.), Israel's Foreign Relations: Selected Documents, 1947–1974, 2 vols. (Jerusalem: Ministry of Foreign Affairs, 1976), Vol. 1, pp. 217–19.Google Scholar

17 See Lorch, , Edge of Sword, pp. 91–96Google Scholar, 205–27.

18 See FRUS 1948, pp. 989 and 992.

19 G.A. Res. 186 (S-2), May 14, 1948; reproduced in FRUS 1948, pp. 994–95.

20 SCOR, 3rd Yr., Supp. for July 1948, pp. 27–30. See also FRUS 1948, pp. 1152–54.

21 UN Doc. S/870, SCOR, 3rd Yr., Supp. for July 1948, pp. 27–30. See also FRUS 1948, p. 1192. For further discussion, see Kaufman, , Americas Jerusalem Policy: 1947–1948, pp. 55 ff.Google Scholar

22 See remarks of Israeli Foreign Minister Sharett, as reported in FRUS 1948, p. 1286, n. 2. See also Israel's official reply to Bernadotte, July 5, 1948. State of Israel, Documents on the Foreign Policy of Israel, May-September 1948, vol. 1 (Jerusalem: Government Printer, 1981) 264. (Hereinafter cited as Israeli State Documents, vol. 1). See also comments of Ambassador Abba Eban, ibid., at 243.

23 See, for example, the remarks of the Syrian Acting Foreign Minister, as reported ibid., at 1216, n. 2.

24 GAOR, 3rd Sess., Supp. No. 11 (A/648), pp. 19–22. See also FRUS 1948, p. 1192.

25 See comments of Ambassador Philip Jessup in memorandum of June 30, two days after the Bernadotte proposals appeared, FRUS 1948, p. 1167. (But cf. Jessup's earlier views, ibid., at 1089). See also ibid., at 1233. At this time Washington also supported Bernadotte's scheme for the demilitarization of Jerusalem. Kaufman, , America's Jerusalem Policy, 1947–1948, pp. 54 ff.Google Scholar

26 See ibid., at 1167.

27 Ibid., at 1305.

28 Ibid., at 1368.

29 “Progress Report of the United Nations Mediator in Palestine,” GAOR, 3rd Sess., Supp. No. 11 (A/684), pp. 17 ff. Extracts of the report are reprinted in FRUS 1948, pp. 1401 ff.

30 This divergence from the Partition scheme was subsequently sharply attacked in the General Assembly debates by the Soviet delegate. See GAOR, 3rd Sess., 1st Ctte., 225th Mtg., Dec. 3, 1948, pp. 894, 896. See also the remarks of the Byelorussian delegate, ibid., 211th Mtg., Nov. 24, 1948, p. 743; and of the Polish delegate, ibid., 213th Mtg., Nov. 25, 1948, p. 774.

31 FRUS 1948, pp. 1440–42. See also Kaufman, , America's Jerusalem Policy 1947–1948, pp. 88 ff.Google Scholar

32 Ibid., at 1441.

33 Ibid., at 1440. Sir Hugh, in fact, “personally saw no objection to placing these separate areas under the respective sovereignty of the Jewish State and the [Arab] State”. Ibid.

34 Ibid., at 1484.

35 Ibid., at 1485.

36 UN Doc. A/C. 1/394.

37 G.A. Res. 194 (III).

38 GAOR, 3rd Sess., 1st Ctte., 209th Mtg., Nov. 23, 1948, p. 727.

39 The other two were Turkey and France.

40 See the State Department instructions to the U.S. representative on the Commission, Jan. 19, 1949. Foreign Relations of the United States 1949, Vol. 6, The Near East, South Asia and Africa (Washington, D.C.: Government Printing Office, 1977) 681–83. (Hereinafter cited as FRUS 1949).

41 See ibid., at 739.

42 Ibid., at 739–40.

43 Ibid., at 718, n. 2; 736–38; 740–41.

44 Ibid., at 741, n. 1. The decision was confirmed by President Truman on February 10. Idem.

45 Ibid., at 739.

46 Ibid., at 891.

47 Ibid., at 1294.

48 U.N. Doc. A/973.

49 N.Y. Times, Oct. 9, 1949. See Bovis, , The Jerusalem Question, p. 74.Google Scholar It is clear that Abdullah's fierce opposition to any notion of internationalization was in no way a consequence of the Israeli attitude. The assertion by Cattan that it was connected disregards the documentary record. Cattan, Henry, Jerusalem (London: Croom Helm, 1981) 64.Google Scholar

50 GAOR, 3rd Sess., 2nd Part, Ad Hoc Pol. Otte., 45th Mtg., May 5, 1949, pp. 233–34. It is to be noted that apart from rejecting the notion of territorial internationalization, the Israelis took exception to two additional features of the Conciliation Commission's report. For one thing, they denied that the United Nations possessed “full and permanent authority” over Jerusalem. Secondly, they were outraged by the Commission's proposal that the demographic composition of the city be frozen in its present form. This suggestion was dismissed as an “invidious proposal… reminiscent of discriminatory practices elsewhere in the world”. UN Doc. A/AC. 31/L.34. In a separate legal brief delivered to Member States, Israel furnished an answer to the question: “What legal authority does the United Nations possess with respect to Jerusalem?” After an extensive analysis the brief concluded that, since the Partition Resolution was never carried out, the United Nations possessed no “sovereignty or other form of legal authority” in Jerusalem; it merely possessed “a special and widely recognized interest” in the city. In light of this fact, “the degree of legal authority which the United Nations may exercise in Jerusalem in the future” would depend on a specific grant of authority from the states now “in effective control of the area”. Nov. 4, 1949. British Foreign Office Doc. FO 371/75366. It is noteworthy that the legal advisers of the British Foreign Office, in secret memoranda, accepted the validity of the Israeli argument. “In so far as it demonstrates that the United Nations does not have sovereignty over Jerusalem, this Opinion is incontestible.” J.E.S. Fawcett, Nov. 7, 1949; acquiesced in by G.G. Fitzmaurice, Nov. 8, 1949. “Generally Mr. Eban's paper seems to me to be pretty good law and pretty good common sense.” W.E. Beckett, Nov. 16, 1949. British Foreign Office Doc. FO 371/75366.

51 UN Doc. A/1222, Dec. 7, 1949.

52 UN Doc. A/1227, Dec. 9, 1949.

53 GAOR, 4th Sess., Ad Hoc Pol. Ctte., 57th Mtg., Dec. 5, 1949, p. 344.

54 Ibid.

55 Ibid., Plen., 274th Mtg., Dec. 9, 1949, p. 579.

56 Ibid., Ad Hoc Pol. Ctte., 57th Mtg., Dec. 5, 1949, p. 344. A secret British Foreign Office document of September 25, 1949, reveals the true nature of the U.S. stand at this session of the General Assembly. In a brief for the United Kingdom delegation to the United Nations, it is said: “The United States Embassy have shown us copies of correspondence between President Truman and Cardinal Spellman on this subject. President Truman's letter says that there are very grave doubts in American official quarters as to the possibility of enforcing full internationalization. The Foreign Office share these doubts, although hitherto it would have been useless and impolitic to air them publicly. Meanwhile His Majesty's Government have been in correspondence with the United States Government about the lines on which a final Palestine settlement might be reached. In this correspondence the proposal in regard to Jerusalem was stated as follows: ‘There should be a partition of Jerusalem for administrative purposes with international supervision particularly of the holy places….’ The proposal above is now agreed Anglo/U.S. policy, but this is of course strictly confidential since His Majesty's Government have not ceased to support the principle of full internationalization in public…. The paramount necessity at present is for a peaceful settlement in Palestine which will restore the situation in the Middle East to normal. This settlement should not be held up owing to the international insistence upon an ideal solution for Jerusalem which is unpractical…. There should be international supervision of the holy places and of the line of demarcation between Israel and Jordan in the Jerusalem area. Easy movement between the two parts of Jerusalem should be assured.” British Foreign Office Doc. 371/75343.

57 G.A. Res. 303 (IV), Dec. 9, 1949. Cardinal Spellman it appears, was particularly active in mobilizing Latin American votes for internationalization. See Glick, Edward B., “The Vatican, Latin America, and Jerusalem,” (1957) 11 International Organization 216Google Scholar, and the references cited in n. 24. See also Brecher, , Decisions, pp. 25–26.Google Scholar

58 See instructions of Secretary Acheson to the U.S. Mission to the United Nations, Dec. 13, 1949, FRUS 1949, pp. 1538–39; and memorandum by Secretary Acheson to President Truman, Dec. 20,1949, ibid. at 1554–55.

59 See N.Y. Times, Dec. 11, 1949. See also Bovis, , The Jerusalem Question, p. 80Google Scholar; and FRUS 1949, p. 1553.

60 Jerusalem Post, Dec. 12, 1949.

61 Ibid., Dec. 13, 1949. See also Bovis, , The Jerusalem Question, pp. 80–81.Google Scholar

62 Jerusalem Post, Dec. 12, 1949.

63 See message sent by Secretary of State to U.S. Embassy in Israel, Dec. 9, 1949, in FRUS 1949, p. 1531.

64 See Jerusalem Post, Dec. 12, 1949. Reprinted in FRUS 1949, p. 1532.

65 Divrei HaKnesset, Vol. 3, p. 281. Reprinted in FRUS 1949, p. 1542.

66 Divrei HaKrtesset, Vol. 3, p. 281. Reprinted in Medzini, , Israel's Foreign Relations, Vol. 1, p. 226.Google Scholar

67 See FRUS 1949, pp. 1542, 1551; see also Bovis, , The Jerusalem Question, p. 80.Google Scholar The Trusteeship Council, which was now seized with the Palestine question, adopted a resolution on December 20 expressing its “concern” over the Israeli actions. TCOR, 2nd Spec. Sess., 8th Mtg., p. 84; reported in FRUS 1949, p. 1540. In a reply dated December 30, Israel rejected the Trusteeship Council resolution.

68 Divrei HaKnesset, 2nd Sess., No. 11 (1950), p. 603. See also Brecher, Michael, “Jerusalem: Israel's Political Decisions, 1947–1977” (1978) 32 Middle East Journal 21Google Scholar; and Gabriel Padon, “The Divided City: 1948–1967”, in Msgr. Oesterreicher, John M. and Sinai, Anne (eds.), Jerusalem (N.Y.: John Day, 1974) 92.Google Scholar It might be noted that the opposition in the Knesset had proposed legislation declaring Jerusalem the capital of Israel. Ben Gurion maintained that a law having prospective effect was unnecessary and might have deleterious consequences. He persuaded the Knesset to endorse his draft resolution which confirmed that Jerusalem had been the capital of Israel since time immemorial. See Bovis, , The Jerusalem Question, p. 82Google Scholar, and Brecher, , “Jerusalem: Israel's Political Decisions,” p. 21.Google Scholar

69 FRUS 1949, Dec. 17, 1949, pp. 1547–48.

70 Ibid., at 1555.

71 The instructions are dated January 4, 1950. Foreign Relations of lite United Stares, 1950, vol. 5. The Near East, South Asia, & Africa (Washington, D.C.: Government Printing Office, 1978) 667–68. (Hereinafter cited as FRUS 1950).

72 An exequatur is a written authorization by the state receiving a consul permitting him to exercise his consular functions.

73 FRUS 1950, pp. 686–89.

74 Ibid., at 686. This opinion also concluded that “the General Assembly resolution of December 9, 1949, providing for a special international regime for Jerusalem, was based implicitly on the theory that the Assembly had the right to determine the status and future government of Jerusalem”. In support of this conclusion, the memorandum presented a chain of reasoning which the legal adviser himself conceded was “a complicated one, certainly not free from serious doubts and difficulties”. Ibid., at 688. Particularly open to challenge was the following claim: “Although the Statute for Jerusalem which the United Nations Trusteeship Council drafted pursuant to the November 29 resolution was not placed in operation upon the termination of the British mandate for Palestine (May 14, 1949 [sic]), Jerusalem remained at the disposition of the United Nations.” The memorandum noted that the Israeli Delegation had presented the contrary legal view, namely, that “the Mandate unmistakably came to an end in the absence of a ‘specific link of any kind between the United Nations and Jerusalem’.” The opinion of the American legal adviser, it might be noted, was written before the International Court of Justice delivered its 1950 advisory opinion on the subject of South West Africa in which the issue of the relationship between the mandates system and the United Nations, including the question of the termination of mandates, was extensively analyzed. The subsequent jurisprudence of the International Court on the subject of South West Africa produced a veritable mountain of legal material on the subject. See Slonim, Solomon, South West Africa and the United Nations: An International Mandate in Dispute (Baltimore: Johns Hopkins University Press, 1973)Google Scholar, passim. See below for discussion of the legal status of the United Nations in relation to Jerusalem upon termination of the mandate.

75 FRUS 1950, p. 706, n. 3.

76 Ibid., at 707.

77 Ibid., at 1029–32.

78 UN Doc. A/1286.

79 GAOR, 5th Sess., Supp. No. 1 (Report of the Secy-Gen.), p. 6. No ready explanation of the switch in the Soviet position is available; but see Bovis, , The Jerusalem Question, p. 90.Google Scholar

80 UN Doc. A/AC.38/L.71, Dec. 12, 1950. This draft resolution was sponsored by Belgium.

81 UN Doc. A/AC.38/L.63, Dec. 7, 1950. Sweden sponsored this draft resolution.

82 GAOR, 5th Sess., Ad Hoc Pol. Ctte., 78th Mtg., Dec. 12, 1950, p. 495.

83 Ibid., at 496.

84 Ibid., 80th Mtg., Dec. 13, 1950, p. 512. The joint amendment appears as UN Doc. A/AC. 38/L. 73/Rev.

85 Ibid., 81st Mtg., Dec. 13, 1950, pp. 521–22.

86 On this topic, see the discussion and authorities cited, in Slonim, , South West Africa and the United Nations, pp. 300–301Google Scholar, and Stone, Julius, Israel & Palestine: Assault on the Law of Nations (Baltimore: Johns Hopkins University Press, 1981)Google Scholar chap. 2.

87 It might be noted that in 1952 the General Assembly deliberately refrained from reasserting the principle of internationalization for Jerusalem in adopting a resolution on the Palestine question. See Lauterpacht, Elihu, Jerusalem and the Holy Places (London: Anglo-Israel Association, 1968) 31–33.Google Scholar

88 Ibid., at 31.

89 See text above, at n. 41.

90 See FRUS 1949, p. 741; and Bovis, , The Jerusalem Question, p. 92.Google Scholar

91 N.Y. Times, Nov. 4 and 5, 1954; and Bovis, , The Jerusalem Question, p. 93.Google Scholar

92 N.Y. Times, Nov. 11, 1954. As Bovis says: “In making such protests, the U.S. and the U.K. based their stand not on the premise that territorial internationalization was necessarily the best solution for Jerusalem but on the grounds that the [Assembly] resolutions… were the last actions by the U.N. on the matter and should therefore be respected.” The Jerusalem Question, p. 92.

93 Ibid., at 93.

94 Dept. of State Bulletin, Nov. 22, 1954, p. 776.

95 Dept. of State press release 576, July 22, 1952; reprinted in Whiteman, Marjorie M. (ed.), Digest of International Law, Vol. 2 (Washington, D.C.: Government Printing Office, 1963) 1163.Google Scholar In February 1951 an internal State Department Policy Statement had proposed that “consideration should be given to moving the Embassy to Jerusalem”. Foreign Relations of the United States 1951, vol. 5. The Near East and Africa (Washington D.C.: Government Printing Office, 1982) 576. This proposal was never acted upon. See ibid., at 579, n. 1.

96 Bovis, (The Jerusalem Question, pp. 93–94)Google Scholar and Brecher, (“Jerusalem: Israel's Political Decisions”, p. 22)Google Scholar maintain that Israel delayed the move for a year to gauge international reaction to the original announcement. Sensing that the repercussions would not be serious, Israel decided to go ahead in 1953.

97 Dept. of State Bulletin, Aug. 10, 1953, pp. 177–78.

98 See Bovis, , The Jerusalem Question, pp. 93–94.Google Scholar

99 Ibid., at 94–95; and Brecher, , “Jerusalem: Israel's Political Decisions”, p. 22.Google Scholar The members of the Soviet bloc, it might be noted, never engaged in a diplomatic blockade of Jerusalem, but neither did they move their embassies to Jerusalem. Padon, “The Divided City”, p. 93. From 1956 onwards all new diplomatic missions in Israel—with the exception of West Germany in 1956—were established in Jerusalem. Brecher, “Jerusalem: Israel's Political Decisions”, p. 22. The following states maintained their embassies in Jerusalem: Bolivia, Central African Republic, Chile, Columbia, Congo (Brazzaville), Congo (Zaire), Costa Rica, Dahomey, Dominican Republic, Ecuador, Gabon, Guatemala, Ivory Coast, Mada gascar, Netherlands, Niger, Panama, Upper Volta, Uruguay and Venezuela. Cited in Adler, Stephen, “The Jerusalem Law: Origin and Effects”, in Ahimeir, Ora (ed.), Jerusalem—Aspects of Law, (Jerusalem: Institute for Israel Studies, 2nd rev. ed., 1983) xxxviiGoogle Scholar, n. 6.

100 See text above, at n. 59; and Whiteman, , Digest of International Law, Vol. 2, pp. 1163–68Google Scholar.

101 This information is drawn from Whiteman, idem, and Bovis, , The Jerusalem Question, p. 88.Google Scholar

102 see FRUS 1950, pp. 845, 869, and 875.

103 Ibid., at 874–875 and n. 2; but cf. the remarks of Stuart W. Rockwell of the Office of African and Near Eastern Affairs, ibid., at 921. Israel protested the Jordanian action and declared it was “a unilateral act which in no way binds Israel”. Foreign Minister Sharett, Moshe, Divrei HaKnesset, Vol. 5, p. 1282Google Scholar (May 3, 1950).

104 FRUS 1950, p. 1096, n. 3.

105 Ibid., at 1096–97.

106 U.S. Ambassador at Amman (Mills) to Secretary of State (Herter). Reproduced in Whiteman, Marjorie M., (ed.), Digest of International Law, Vol. 1 (Washington, D.C.: Government Printing Office, 1963) 594.Google Scholar

107 U.S. Consul General at Jerusalem (Franklin) to Secretary of State (Dulles), idem. For a vivid account of the trials and tribulations of a U.S. Consul General in administering two offices in a divided Jerusalem and the anomalous nature of his task, see Wilson, Evan M., Jerusalem, Key to Peace (Washington, D.C.: Middle East Institute, 1970).Google Scholar

108 Padon, “The Divided City,” pp. 104–105.

109 For a survey of the events leading up to the Six Day War, see Sachar, Howard M., A History of Israel: From the Rise of Zionism to Our Time (N.Y.: Knopf, 1976) chap. 21Google Scholar; and Safran, Nadav, Israel: The Embattled Ally (Cambridge, Mass.: Harvard University Press, 1978) chap. 21.Google Scholar

110 See Sachar, , A History of Israel, p. 643Google Scholar; Pfaff, Richard H., Jerusalem: Keystone of an Arab-Israeli Settlement (Washington, D.C.: American Enterprise Institute, 1969) 35Google Scholar; Gerson, Alan, “Trustee-Occupant: The Legal Status of Israel's Presence in the West Bank,” (1973) 14 Harvard International Law Journal 8, 14–16.Google Scholar Foreign Minister Abba Eban, in an address to the General Assembly on June 19, 1967, described the events in the following terms: “Jordan was given every chance to remain outside the struggle. Even after Jordan had bombarded and bombed Israel territory at several points, we still proposed to the Jordanian monarch that he abstain from any continuing hostilities. I sent a message to him to this effect through General Odd Bull, the United Nations representative, at 12.30 p.m., some hours after the beginning of hostilities.… Jordan tragically answered not with words but with a torrent of shells. Artillery opened fire fiercely along the whole front with special emphasis on the Jerusalem area. Thus Jordan's responsibility for the second phase of the concerted aggression is established beyond doubt. Surely this responsibility cannot fail to have its consequences in the peace settlement.” GAOR, 5th Emerg. Spec. Sess., Plen., 1526th Mtg., June 19, 1967, pp. 12–13.

111 See Sachar, , A History of Israel, pp. 643–45, 650Google Scholar; and Bovis, , The Jerusalem Question, pp. 101–102.Google Scholar For a legal analysis of the events surrounding the Six Day War, see Stone, Julius, The Middle East Under Cease-Fire (Sydney: A Bridge Publication, 1967)Google Scholar; Wright, Quincy, “Legal Aspects of the Middle East Situation”, in Halderman, John W. (ed.), The Middle East Crisis: Test of International Law (Dobbs Ferry, N.Y.: Oceana, 1969) 5–31Google Scholar; O'Brien, William V., “International Law and the Outbreak of War in the Middle East, 1967,” (1967) 11 Orbis 692–723Google Scholar and Higgins, Rosalyn, “The June War: The United Nations and Legal Background,” (1968) 3 Journal of Contemporary History 253–73.CrossRefGoogle Scholar

112 Writers have experienced considerable difficulty in selecting a neutral term for the area of the former Palestine mandate which was under Jordanian control between 1948 and 1967. See Gerson, “Trustee-Occupant,” p. 1, n. 1. Initially, the U.S. State Department used the term “Arab Palestine” or “Central Palestine.” See, e.g., FRUS 1950, p. 1096 and n. 3. In this paper, the term “the West Bank”, as a shortened version of “the West Bank of the River Jordan”, has been selected as a geographical term to describe the area concerned during the entire period with which this paper deals, i.e., 1947–48 to the present.

113 Law and Administration Ordinance (Amendment No. 11) Law, 5727–1967. For text, see 21 L.S.I. 75. Reprinted in Medzini, , Israel's Foreign Relations, Vol. 1, p. 245.Google Scholar

114 Municipalities Ordinance (Amendment No. 6) Law, 5727–1967. For text, see 21 L.S.I. 75. Reprinted in Medzini, , Israel's Foreign Relations, Vol. 1, pp. 245–46.Google Scholar

115 Protection of Holy Places Law, 5727–1967. For text, see 21 L.S.I. 76. Reprinted in Medzini, , Israel's Foreign Relations, Vol. 1, p. 247.Google Scholar

116 Jerusalem (Enlargement of Municipal Area) Proclamation, 5727–1967. For text, see K.T., No. 2065, June 28, 1967, pp. 2694–95. The new borders were not identical with those of the 1947 Partition Resolution.

117 On the subject of self-defence in the context of the Six Day War, see Shapira, Amos, “The Six-Day War and the Right of Self-Defence”, (1971) 6 Is. L. R. 65–80.Google Scholar In the light of the unwillingness of the Security Council or General Assembly to accept any proposal which branded Israel as an aggressor, Shapira concludes that “the United Nations record on this matter… provides solid support for Israel's claim to have acted in legitimate exercise of its right of self defence”. Ibid., at 80. See also Rosenne, Shabtai, “Directions for a Middle East Settlement—Some Underlying Problems”, in Halderman, , Middle East Crisis, pp. 55–56Google Scholar and Feinberg, Nathan, Studies in International Law (Jerusalem: Magnes Press, 1979) 580–85.Google Scholar

118 Res. 2253 (ES V), July 4, 1967. The text is reproduced in Medzini, , Israel's Foreign. Relations, vol. 1, pp. 247–48Google Scholar, and in Lall, Arthur, The UN and the Middle East Crisis, 1967 (N.Y.: Columbia University Press, 1970), Appendix 8.Google Scholar For discussion of the UN reaction to the reunification of Jerusalem, see S. Jones, Shepard, “The Status of Jerusalem: Some National and International Aspects”, in Halderman, , Middle East Crisis, pp. 169–82Google Scholar; and Morzellec, Joelle Le, La Question de Jerusalem Devant L'Organisation Des Nations Unies (Brussels: E. Bruyant, 1979), part 3.Google Scholar

119 The Letter, dated July 10, 1967, is reproduced in Medzini, , Israel's Foreign Relations, Vol. 1, pp. 248–51Google Scholar; and in N.Y. Times, July 12, 1967. But cf. the decision of the Israeli Supreme Court, Ruwaydi and Maches v. Hebron Military Court (1970) 24(ii) P.D. 419, 423; International Law Reports (editor: Lauterpacht, H.), Vol. 48 (1975), p. 63CrossRefGoogle Scholar (English Summary), in which at least two of the judges accepted that east Jerusalem was formally annexed by Israel. See also the discussion which this decision provoked between Dinstein, Yoram and Blum, Yehuda, (1971–1972) 27 HaPraklit 5–11, 315–24, 519–22Google Scholar and (1972–73) 28 ibid., 183–96. See also Adler. “The Jerusalem Law: Origin and Effects,” p. xxxv.

120 For text of the President's address, see Dept. of State Bulletin, Vol. 57 (1967), p. 31.

121 See Slonim, Shlomo, United States-Israel Relations, 1967–73: A Study in the Convergence and Divergence of Interests, Jerusalem Papers on Peace Problems, no. 8 (Jerusalem: Leonard Davis Institute for International Relations, 1974) 11, n. 12.Google Scholar

122 See text above, at nn. 56 and 83.

123 Dept. of State Bulletin, July 17, 1967, p. 60.

124 GAOR, 5th Emerg. Spec. Sess., Plen., 1546th Mtg., July 3, 1967, p. 1.

125 Ibid., Plen. 1554th Mtg., July 14, 1967, pp. 9–11.

126 Ambassador Goldberg also noted that the United States had voted for a Latin-American draft resolution (UN Doc. A/L. 523/Rev. 1) “which dealt with Jerusalem as one of the elements involved in a peaceful settlement in the Middle East”. Ibid., at 10. The Latin-American draft resolution would also have had the Assembly “reaffirm … as in earlier recommendations, the desirability of establishing an international regime for the city of Jerusalem, to be considered by the General Assembly at its twenty-second session”. There was never any explanation of the U.S. vote and thus the intention of Washington in supporting this clause on internationalization is not clear. The resolution was never adopted. Subsequently, in discussing the legal implications of Security Council Resolution 242 (Nov. 22, 1967), Ambassador Goldberg wrote: “A most significant omission in the Resolution is any specific reference to the status of Jerusalem and the Resolution's failure to reaffirm past U.N. resolutions for the internationalization of the city. The logical inference from this omission is that 242 realistically recognizes the desuetude of the prior U.N. internationalization resolutions.” “United Nations Security Council Resolution 242 and the Prospects for Peace in the Middle East”, (1973) 12 Columbia Journal of Transnational Law 192. See also n. 155, below.

127 UN Doc. S/8560.

128 UN Doc. S/8590, May 20, 1968.

129 S.C. Res. 252, May 21, 1968. Reproduced in Moore, John Norton (ed.), The Arab-Israeli Conflict: Readings and Documents (Princeton, N.J.: Princeton University Press, 1974), vol. 3, pp. 990–991.Google Scholar

130 SCOR, 1426th Mtg., May 21, 1968, p. 2.

131 S/9284, June 26, 1969.

132 A New York Times editorial of July 1, 1969 foreshadowed the change in the American position. The editorial, entitled “O Jerusalem,” stated: “Although the United States has declared it does not recognize ‘any unilateral actions affecting the status of Jerusalem’, American delegates have abstained from past United Nations resolutions on this subject. If the United States is to play an effective role in promoting a Middle East settlement, this country must make clear its commitment to a settlement of the Jerusalem question that recognizes the rights of Arabs and the interest of the world community in this age-old city of contention.”

133 S.C. Res. 267, July 3, 1969.

134 SCOR, 1483rd Mtg., July 1, 1969, p. 11.

135 Dept. of State Bulletin, Jan. 5, 1970, p. 10.

136 Strangely enough, the Yost address before the Security Council did not even produce an Israeli protest. The Rogers Plan was vigorously criticized by the Israeli government: see Jerusalem Post, Dec. 12, 1969. On December 15, 1969, Prime Minister Golda Meir bitterly attacked the Plan in a major policy speech to the Knesset, Ibid., Dec. 16, 1969. For the text of her address, see Divrei HaKnesset, vol. 56, pp. 192 ff. On December 22, 1969, the plan was officially rejected by the Israeli government. Jerusalem Post, Dec. 23, 1969.

137 N.Y. Times, March 12, 1980, p. 26.

137a The primary exponent of this thesis is Dinstein, Yoram in a series of articles in (1971–1972) 27 HaPraklit 5–11, 519–22.Google Scholar

137b see the replies of Yehuda Z. Blum, (1971–1972) 27 ibid. 315–24 and (1972–1973) 28 ibid. 183–90. Blum points out that the armistice agreement was concluded without prejudice to territorial rights. It was clearly stated that the demarcation lines were not to be construed as political boundaries. This point is noted by Dinstein himself in his article, “The United Nations and the Arab-Israel Conflict,” in Moore, , The Arab-Israeli Conflict, vol. 2, p. 485.Google Scholar

137c This point is frankly acknowledged by Crown Prince Hassan bin Talal, A Study on Jerusalem, (London: Longman, 1979) 24–25.Google Scholar The absence of any Arab recognition of Jordanian sovereignty over the West Bank or east Jerusalem would seem to be particularly fatal to any Jordanian claim of sovereignty.

138 See remarks of the U.S. Ambassador to the United Nations in Security Council discussions on the invasion of Palestine by the armies of five Arab states, including Jordan. He said: “The situation in Palestine is not merely a threat to the peace but a breach of the peace of a very serious nature.… Probably the most important and the best evidence we have… is contained in the admissions of the countries whose five armies have invaded Palestine that they are carrying on a war. Their statements are the best evidence we have of the international character of this aggression…. They tell us quite frankly that their business in Palestine is political…. Of course, the statement that they are there to make peace is rather remarkable in view of the fact that they are waging war.” SCOR, 302nd Mtg., May 22, 1948, p. 41.

139 Ibid., at 42–43. The text of the Jordanian reply is reproduced, ibid., at 42.

140 See text above, at nn. 101 and 105.

141 See Stone, Julius, The Middle East Under Cease-Fire, pp. 12–13Google Scholar; Stone, , Israel and Palestine, pp. 51–56, 116–23, 177–78Google Scholar; Blum, Yehuda Z., “The Missing Reversioner: Reflections on the Status of Judea and Samaria”, (1968) 3 Is.L.R. 288Google Scholar; Blum, , The Juridical Status of Jerusalem, p. 15Google Scholar; Lauterpacht, , Jerusalem and the Holy Places, p. 47Google Scholar; Schwebel, Stephen M., “What Weight to Conquest?” (1970) 64 Am. J. of Int'l L. 346CrossRefGoogle Scholar; Gerson, “Trustee-Occupant,” pp. 36–39; Rostow, Eugene V., “‘Palestinian Self-Determination’: Possible Futures for the Unallocated Territories of the Palestine Mandate,” (1979) 5 Yale Studies in World Public Order 10Google Scholar; Rostow, , (1980) 58 Foreign Affairs 956.Google Scholar But cf. Dusen, Michael Van, “Jerusalem, The Occupied Territories, and the Refugees,” in Khadduri, Majid (ed.) Major Middle Eastern Problems in International Law (Washington D.C.: American Enterprise Institute, 1972) 51.Google Scholar It is interesting to note that Jordanian Crown Prince H.R.H. Hassan Bin Talal acknowledges that Jordan's status in east Jerusalem from 1948 to 1967 was no more than that of a “military occupant”. He, however, seeks to equate Israel's status in west Jerusalem to Jordan's in east Jerusalem. He does not accept the thesis that Israel's status was different because Israel was acting defensively in 1948. A Study on Jerusalem, pp. 24–27.

142 Stone, , No Peace—No War, p. 39Google Scholar; Blum, “Status of Judea and Samaria”, p. 288; Blum, , Juridical Status of Jerusalem, p. 15Google Scholar; Lauterpacht, , Jerusalem and the Holy Places, p. 47Google Scholar; Schwebel, “What Weight to Conquest?”, p. 346.

143 See the extended debate between Yoram Dinstein and Yehuda Blum, on this question in HaPraklit, supra n. 119.

144 See the remarks of Ambassador Goldberg in the Security Council, SCOR, 1358th Mtg., June 13, 1969, pp. 10–11Google Scholar; and in the General Assembly, GAOR, 5th Emerg. Spec. Sess., 1527th Mtg., June 20, 1967, p. 4.Google Scholar See also Dinstein, Yoram, “The Legal Issues of ‘Para-War’ and Peace in the Middle East,” in Moore, , Arab-Israeli Conflict, vol. 2, p. 162.Google Scholar

145 Schwebel, “What Weight to Conquest?”, p. 346.

146 Stone, , No Peace—No War, p. 40Google Scholar; Schwebel, “What Weight to Conquest?” pp. 346–47; Blum, “Status of Judea and Samaria”, p. 294, n. 60; and Blum, , Juridical Status of Jerusalem, p. 21.Google Scholar

147 Lauterpacht, , Jerusalem and the Holy Places, p. 45.Google Scholar

148 Gerson, “Trustee-Occupant”, p. 39. It should be noted that the International Committee of the Red Cross does not accept this thesis. According to the Committee, “the Fourth Convention applies to every occupation of territory, whatever the legal status in the said territory of the ousted military forces”. Shamgar, Meir, “Legal Concepts and Problems of the Israeli Military Government—The Initial Stage”, in Shamgar, Meir (ed.), Military Government in the Territories Administered by Israel 1967–1980: The Legal Aspects, Vol. 1 (Jerusalem: Hebrew University Faculty of Law, 1982) 32.Google Scholar

149 Glahn, Gerhard von, The Occupation of Enemy Territory (Minneapolis: University of Minnesota Press, 1957) 273.Google Scholar

150 Blum, “Status of Judea and Samaria”, p. 293. The same point is made by Eugene Rostow writing in Foreign Affairs, supra n. 141. But cf. Hassan, , Study on Jerusalem, pp. 35–37.Google Scholar

151 See Discourse 2, “Jewish Settlements in Judea and Samaria (the West Bank) and Geneva Convention, IV, Article 49 (6) Relative to the Protection of Civilian Persons in Time of War,” Israel and Palestine, pp. 177–181. The same point is made by Senator Moynihan, Daniel P. in “‘Joining the Jackals’: The U.S. at the U.N. 1977–1980,” (1981) 71 Commentary 28Google Scholar; and Eugene Rostow, “Palestinian Self-Determination,” p. 9. A similar argument is made by William V. O'Brien in an article which appeared in the Washington Star, Nov. 26, 1978.

152 Reproduced from U.S. Congress, House of Representatives (95th Congress, 1st Session), Committee on International Relations, Israeli Settlements in the Occupied Territories, Hearings before the Subcommittees on International Organizations and on Europe and the Middle East (Washington, D.C.: Government Printing Office, 1978) 167–72.Google Scholar See also Hassan, , Study on Jerusalem, pp. 33–36 and 43.Google Scholar Hassan notes that Additional Protocol 1 to the Geneva Convention, adopted in 1971, was specifically designed (in Article 4) to make the Convention applicable regardless of issues of sovereignty. But as Hassan acknowledges, Israel has never signed or ratified this Protocol. Ibid., at 36–37.

153 Shamgar, Meir, “The Observance of International Law in the Administered Territories”, (1971) 1 Israel Yearbook on Human Rights 263Google Scholar; reprinted in Moore, , The Arab-Israeli Conflict, Vol. 2, p. 490.Google Scholar See also Shamgar, , Military Government in the Territories, pp. 31–43.Google Scholar

154 Glahn, Gerhard von, in his most recent study, Law Among Nations, (New York: Macmillan, 4th ed., 1982) 678–79Google Scholar, cites four arguments presented by Israel to justify its settlement policy and to deny the applicability of Article 49 (6) to the West Bank and Jerusalem. According to von Glahn, the arguments are: (1) the Shamgar thesis (see above, in text, at n. 153); (2) the Blum thesis regarding Jordan's aggression in 1948 (see above, in text, at n. 150); (3) the settlements are needed for national security purposes; and (4) the West Bank “represented traditional parts of the ancient homeland of the Jewish people, hence could validly be reclaimed by Jewish settlers”. In conclusion, von Glahn says: “From a legal point of view, all four arguments fail in view of the clear wording of Geneva-IV, to which Israel is a party.” Ibid., at 679. Remarkably enough, von Glahn does not address himself to the substance of the Israeli arguments and, in what can only be regarded as an ex cathedra manner, pronounces them all to be unsupportable.

155 It might be noted that the U.N. Committee on the Exercise of the Inalienable Rights of the Palestinian People, in a paper issued in 1979 and entitled “The Status of Jerusalem”, pp. 18 and 20, contends that General Assembly and Security Council resolutions after 1967 which declare that Israeli actions tending to change the “legal status” of Jerusalem are “invalid” must be taken to refer to the legal status of the “corpus separatum” of the original Partition Resolution. (See also Cattan, , Jerusalem, p. 109Google Scholar). Julius Stone demonstrates the untenability of this interpretation if only because not a single post-1967 U.N. resolution on Jerusalem ever cites or refers to the Partition Resolution. Israel and Palestine, chap. 7 and p. 131. Stephen Schwebel also concludes that UN “treatment of the Jerusalem question over the years” suggests that “the United Nations has acquiesced in the demise of internationalization”. “The Middle East: Prospects for Peace,” in Moore, , Arab-Israeli Conflict, vol. 2, p. 139.Google Scholar See also supra n. 126.

156 See above, n. 74.

157 FRUS 1950, p. 687.

158 See, in particular, Cattan, Henry, Palestine, the Arabs and Israel: The Search for Justice (London: Longman, 1969) 261–69Google Scholar; and Feinberg, Nathan, On An Arab Jurist's Approach to Zionism and the State of Israel (Jerusalem: Magnes, 1971).Google Scholar See also the works cited by Gerson, “Trustee-Occupant”, p. 32, n. 100.

159 See discussion in Slonim, , South West Africa and the United Nations, pp. 303–305.Google Scholar

160 See, for instance, Eagleton, Clyde, “Palestine and the Constitutional Law of the United Nations”, (1948) 42, Am. J. of Int'l L. 397.CrossRefGoogle Scholar

161 Lauterpacht, , Jerusalem and the Holy Places, p. 16.Google Scholar Hassan agrees with Lauterpacht on this point. However, he endeavors to demonstrate that unilateral declarations by Israel bind it to a scheme for the internationalization of Jerusalem, , Study on Jerusalem, pp. 20–21.Google Scholar The same argument is presented by Cattan, , Jerusalem, pp. 106–107.Google Scholar Feinberg effectively dismissed this argument, On An Arab Jurist's Approach, pp. 34–56.

162 See ibid., at 26–27 and Stephen M. Schwebel, “The Middle East: Prospects for Peace,” in Moore, , Arab-Israeli Conflict, vol. 2, pp. 134–35.Google Scholar

163 International Status of South-West Africa, Advisory Opinion, I.C.J. Reports 1950, p. 144. Emphasis supplied. For analysis of the advisory opinion, see Slonim, South-West Africa and the United Nations, chap. 5.

164 In this regard, it is to be noted that the United States in 1948 adopted the position that the United Nations was powerless to enforce a political settlement pursuant to a recommendation of the General Assembly. Thus, while the Security Council could take action to prevent aggression against Palestine from outside, it was incapable of enforcing partition. See the statement of the U.S. Ambassador before the Security Council on February 24, 1948. SCOR, 3rd Yr., Nos. 16–35, pp. 264–269; reprinted in FRUS 1948, pp. 651–54.

165 For this reason, of course, the case of the Palestine mandate is quite different from the case of the South West Africa mandate. The 1950 Status opinion and the 1971 Namibia opinion both held that the South West Africa mandate as an institution had survived. (But cf. the 1966 judgment of the Court in the South West Africa Cases, p. 19, where the question of the survival of the mandate was said to be still an open one; and see Slonim, , South-West Africa and the United Nations, p. 286Google Scholar, n. 21). However, in the case of Palestine the Assembly fulfilled the task which the 1950 Status opinion assigned to the General Assembly in the matter of mandates: it gave its “consent” to the termination of the Palestine mandate by adopting the Partition Resolution. Thereafter, the mandate came to an end as did the role of the United Nations in connection with it. For this reason, it is also clear that Article 80 (1) of the U.N. Charter preserving the rights of states or peoples in mandates until trusteeship agreements are concluded, has no bearing on the subject. See also in this regard the International Court's omission in its 1962 judgment in the South West Africa Cases, Preliminary Objections to refer to Article 80 (1), as noted in Slonim, , South-West Africa and the United Nations, p. 198Google Scholar, n. 43. Although the 1971 Namibia opinion confirmed the relevance of Article 80 (1) in the context of the South West Africa mandate, this was because, as noted, it found that the mandate had survived as an institution and that South Africa was in breach of that mandate. This was totally inapposite to the issue of Palestine where the General Assembly duly fulfilled its assigned role. For a different viewpoint, see Rostow, “Palestinian Self-Determination,” pp. 8–11 and the discussion in Stone, , Israel and Palestine, pp. 121–23.Google Scholar

166 See, in this regard, the discussion in Slonim, , South West Africa and the United Nations, pp. 62–72.Google Scholar See also note by Kletter, Larry, “The Sovereignty of Jerusalem in International Law”. (1981) 20 Columbia Journal of Transnational Law 333 and 356.Google Scholar

167 Stone, in reaching a similar conclusion, cites the comment of U.S. Legal Adviser, Herbert Hansell, that the 1947 partition was never effectuated, Israel and Palestine, p. 65. See also ibid., at 101, 127–28; and see n. 155 above.

168 See, in this regard, Gerson, “Trustee-Occupant”, pp. 35, 42–43. For consideration and dismissal of this argument, see also notes by Levine, Alan, “The Status of Sovereignty in East Jerusalem and the West Bank”, (1972) 5 New York University Journal of International Law and Politics 500Google Scholar; and Crane, Melinda, “Middle East: Status of Jerusalem”, (1980) 21 Harvard International Law Journal 788–89.Google Scholar

169 Even if one should extend the concept of Jerusalem to the artificial “area” devised in 1947 by the United Nations so as to “balance” the Arab and Jewish populations in the city, by 1967 when Israel gained control of that “area”, there was already an absolute Jewish majority in greater Jerusalem. Interestingly enough, Hassan, despite his support for the principle of self-determination, doubts whether application of the principle in Jerusalem will afford a solution to (he problem, Study on Jerusalem, pp. 48–49. On the issue of self-determination generally, see Pomerance, Michla, Self-Determination in Law and Practice: The New Doctrine in the United Nations (Hague: Nijhoff, 1982).Google Scholar

170 It might be noted that prior to 1948 Jewish communities in east Jerusalem were not limited to the Walled City; Nevei Yaacov and Atarot, both conquered by the Arab Legion in its 1948 sweep toward the Old City, were thriving Jewish suburbs in the eastern section of the city.

171 The re-unification of Jerusalem in 1967 also had the effect of restoring access to the Mount Scopus enclave which, contrary to the Armistice Agreement, had been denied for nineteen years. The Hadassah Hospital and Hebrew University buildings located there were now given a fresh lease of life and this whole area of north-east Jerusalem was revived as an integral part of the city. See Michael Van Dusen, “Jerusalem,” p. 50.

172 Page 1.

173 Carter, Jimmy, Keeping Faith: Memoirs of a President (N.Y.: Bantam, 1982) 325, 341, 354.Google Scholar The issue of Jerusalem is barely touched upon in the book by Brzezinski, Zbigniew, Power and Principle: Memoirs of the National Security Adviser 1977–81 (N.Y.: Farrar, Straus, Giroux, 1983).Google ScholarWeizman, Ezer, likewise, devotes very little attention to the Jerusalem issue at Camp David. The Battle for Peace (New York: Bantam, 1982) 373.Google Scholar Second-hand reports by newspapermen also reveal nothing new. See, for instance, Yaari, E., Haber, E., and Schiff, Z., Shnat Hayonah (The Year of the Dove) (Tel Aviv: Michaelmark Books, 1980) 347–49Google Scholar and Marcus, Yoel, Camp David (Gateway to Peace) (Tel Aviv: Schocken, 1979) 177–79.Google Scholar The latter two books are in Hebrew.

174 Carter, , Keeping Faith, p. 340.Google Scholar

175 Ibid., at 364.

176 ibid., at 371 ff.

177 Ibid., at 374 and 388. Key features of the Jerusalem clause in the American plan closely parallel certain recommendations of a 1975 Middle East Study Group convened by the Brookings Institution. According to the Report of this Study Group the Jerusalem question could only be resolved within the framework of a general settlement, if the following criteria, as a minimum, were fulfilled: “(a) There should be unimpeded access to all the holy places and each should be under the custodianship of its own faith, (b) There should be no barriers dividing the city which would prevent free circulation throughout it. (c) Each national group within the city should, if it so desires, have substantial political autonomy within the area where it predominates.” Toward Peace in the Middle East: Report of a Study Group (Washington, D.C.: Brookings Institution, 1975). It might be noted that two participants in the Brookings Study Group were present at Camp David, namely, Zbigniew Brzezinski, Director of the National Security Council, and William Quandt, the Council's Middle East specialist. The latter, it is believed, had a major hand in drafting the Jerusalem clause in the American plan at Camp David.

178 Carter, , Keeping Faith, p. 375.Google Scholar

179 Ibid., at 388.

180 Ibid., at 389.

181 Ibid., at 395.

182 Emphasis supplied. Sadat, however, agreed, according to Carter, “that the Wailing Wall should always be retained exclusively by the Jews”. Idem.

183 Dayan, Moshe, Breakthrough: A Personal Account of the Egypt-Israel Peace Negotiations (London: Weidenfeld & Nicolson, 1981) 179.Google Scholar

184 Carter, , Keeping Faith, p. 398.Google Scholar

185 Ibid., at 384. Secretary of State Vance in his account of this episode fails to note that Carter's promise to Sadat reversed his earlier stand on Jerusalem and the implicit commitment to the Israelis. See Vance, Cyrus, Hard Choices: Critical Years in America's Foreign Policy (N.Y.: Simon and Schuster, 1983) 225–26.Google Scholar

186 Carter, , Keeping Faith, p. 333.Google Scholar

187 Ibid., at 397.

188 Dayan, , Breakthrough, p. 177.Google Scholar

189 Carter, , Keeping Faith, p. 398Google Scholar; Dayan, , Breakthrough, pp. 178–79.Google Scholar The depths of the crisis are described in considerable detail in the Dayan work.

190 This whole episode provides a possible answer to the question posed above at the end of n. 4: Why was the Carter letter addressed to Sadat only? Quite simply, Begin was opposed to the exchange of letters in the first place.

191 See Facts on File Weekly World News Digest 1978, Sept. 28, Oct. 13 and 27, 1978, pp. 762 and 802 and Snoval, Zalman, “The Subject is Jerusalem”, Jerusalem Post, June 12, 1979, p. 10.Google Scholar The text is reproduced in Yosef Nedavah, , Sichsuch Yisrael Arav, (Ramat Gan: Revivim, 1983, Hebrew) 410–15.Google Scholar See also Vance, , Hard Choices, pp. 230–31.Google Scholar

192 See Jerusalem Post editorial, April 23, 1980; and see the interview with Kollek, in Jerusalem Post Magazine, Feb. 1, 1980, p. 4.Google Scholar Kollek indicated he would not even object to seeing a “sovereign Moslem flag flying on the Temple Mount mosques”. Ibid. Nonetheless, Kollek has also said: “To divide sovereignty geographically according to the lines of 1967 without erecting walls and barbed wire, as proposed by some Arab groups, is not a viable proposition. Egyptian President Anwar Sadat spoke of divided sovereignty in a united city. This simply cannot work. The proposition is a contradiction. Two legal systems? Two police forces? The barbed wire and the mines would soon return.” “Jerusalem: Present and Future,” (Summer 1981) Foreign Affairs 1043.

193 At the same time, it should also be borne in mind that annual State Department country Reports to Congress on Human Rights have regularly bracketed east Jerusalem with the West Bank and Gaza Strip as territories “occupied” by Israel since 1967. However, there is no indication that this designation derives from a definitive legal determination of the status of the area; rather, it appears simply to be a convenient means of distinguishing in the report between territories under Israeli control prior to 1967 and those that came under its control since that date.

194 Res. S/465, March 1, 1980.

195 “Israeli Settlements and the Status of Jerusalem”, Statement on the U.S. Vote in the Security Council of the United Nations, March 3, 1980. Public Papers of the Presidents of the United States, Jimmy Carter 1980 (Washington D.C.: Government Printing Office, 1981) 427. See also Facts on File, March 7, 1980, pp. 162–64. The presidential statement also expressed reservations about the reference to “dismantling” of settlements in the Council resolution. Writing on the episode in his biography, Carter notes that at Camp David he had pledged that the United States “would either abstain from voting or veto any new resolutions on the subject [of Jerusalem].” Keeping Faith, p. 492. Brzezinski indicates that he opposed the presidential retraction. Power and Principle, pp. 441–42.

196 March 16, 1980. Reproduced in Egyptian Position in Negotiations Concerning Establishment of Transitional Arrangements for the West Bank and Gaza 1979–1980, (Cairo: Ministry of Foreign Affairs 1981) 60–64. It will be recalled that Sadat in his letter appended to the Camp David agreements had said that “Arab Jerusalem should be under Arab sovereignty”. For full text, see above, n. 4.

197 Public Papers of the Presidents of the United States, Jimmy Carter 1980–81, Part I, p. 487.

198 U.S. Middle East Policy, Hearing Before the Committee on Foreign Relations, United States Senate, Ninety-Sixth Congress, Second Session, March 20, 1980, pp. 5–8; and Resolution of Inquiry Concerning U.S. Vote in the U.N. Security Council on Israeli Settlements in the Occupied Territories, Hearing Before the House of Representatives Committee on Foreign Affairs, March 21, 1980, pp. 46–49. Emphasis supplied.

199 March 22, 1980.

200 Senate Foreign Relations Committee Hearing, p. 28.

201 Ibid., at 13.

202 Ibid., at 8.

203 Congressman Bowen, House Committee on Foreign Affairs Hearing, p. 72. Congressman Findley charged that the retraction amounted to “repudiating superfluous words”. Ibid., at 75. The Secretary was also asked why, on this occasion, the United States had not issued its customary disclaimer on the resolution's characterization of the land as “Arab or Palestinian”. In response, the Secretary assured the questioner that no change in policy was intended. Ibid., at 61 and 71.

204 Ibid., at 73.

205 ibid., at 67.

206 See the report in the N.Y. Times, April 18, 1980, p. 10. See also Harif, Yosef, Ma'ariv (Hebrew), April 16, 1980.Google Scholar See also report of Begin letter to Sadat on the subject of Jerusalem, N.Y. Times, August 13, 1980, p. A.5.

207 Res. S/465. See discussion above, at nn. 194–195 ff.

208 Ha'aretz (Hebrew), April 2, 1980. See also Kollek, Teddy, “Jerusalem: Present and Future”, (Summer 1981) Foreign Affairs 1042.Google Scholar

209 See articles by former adviser to the Prime Minister, Katz, Shmuel, Jerusalem Post, March 28, 1980, p. 7Google Scholar, and May 23, 1980, p. 7. A bill declaring Jerusalem the capital of Israel had been introduced into the Knesset several months earlier by M.K. Geula Cohen, a member of Tehiya, a small right-wing party not associated with the government (at that time). This private member's bill had not yet received a first reading by March 1 and might well have remained unenacted if not for the Security Council and Egyptian actions. In the face of such external challenges, the government and opposition joined ranks to pass the bill. For background analysis, see Gruen, , “The United States, Israel and the Middle East”, in American Jewish Yearbook (1982) 127–29Google Scholar; and N.Y. Times, July 31, 1980, where the text of the law is also reproduced. For excerpts, see following note.

210 Basic Law: Jerusalem Capital of Israel, 5740–1980 (July 31, 1980). 34 L.S.I. 309. The relevant text is as follows: “1. Jerusalem united in its entirety is the capital of Israel. 2. Jerusalem is the seat of the President of the State, the Knesset, and the Government, and the Supreme Court. 3. The Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings with regard to those places.”

211 Res. S/478. August 20, 1980. For discussion and legal analysis, see note by Melinda Crane, “Middle East: Status of Jerusalem”, supra n. 168 at 784–93.

212 Dept. of State Bulletin, Oct. 1980, pp. 78–79. In fact, thirteen states maintaining embassies in Jerusalem withdrew them from the city. N.Y. Times, Aug. 31, 1980. Subsequently, Costa Rica and El Salvador returned their embassies to Jerusalem.

213 Tillman, Seth P., The United States in the Middle East: Interests and Obstacles (Bloomington: Indiana University Press, 1982) 169.Google Scholar

214 See Jerusalem Post, March 25, 1980, and Near East Report, March 26, 1980, according to which Reagan, in the course of a meeting with Jewish leaders, said: “I mean that the sovereignty is Israel's. An undivided city of Jerusalem means sovereignty for Israel over that city.”

215 See N.Y. Times, Sept. 2, 1982, p. A.11.

216 Ibid., Sept. 9, 1982, p. A. 10.

217 See discussion above in text at n. 192.

218 Sept. 3, 1982. Nonetheless, the Israeli Government objected, inter alia, to the Jerusalem plank in the Reagan Plan, because of its suggestion for Arab residents to vote in the establishment of the Self-Governing Authority. Israel maintained that “the meaning of such a vote is the repartition of Jerusalem into two authorities”. Government Press Release, Sept. 2, 1982.

219 U.S. Info. Cable, State Dept., Feb. 23, 1983.

220 Alan J. Kreczko, an assistant legal adviser in the State Department has written a semi-official analysis of the Reagan Plan in which he cites the State Department view that east Jerusalem constitutes occupied territory. Notably, however, in discussing the text of the Reagan Plan, he implicitly recognizes that the Plan itself provides no endorsement of that view; cf. Kreczko's interpretation of the Yost statement with his quotation from Secretary Vance. (Winter 1982–83) 49 Foreign Policy, 146–47 and 152–53.

221 See above in text at nn. 68–71.

222 Ibid.

223 Ibid., at n. 76.

224 Ibid., n. 95.

225 Ibid.

226 See Dept. of State Bulletin, Sept. 23, 1974, p. 423.

227 For text of the bill see New York Times, March 27, 1984. The matter became an issue in the U.S. presidential primary elections with Democratic candidates Walter Mondale and Gary Hart expressing support for the bill. See Facts on File, March 30, 1984, pp. 226–27.

228 See ibid., March 16, 1984, p. 185.

229 Statement of Michael B. Armacost, Under Secretary of State for Political Affairs, Washington, D.C., June 21, 1984, in appearance before the House Foreign Affairs Sub-committee on Europe and the Middle East.

230 Faas on File, March 16, 1984, p. 185.

231 New York Times, March 29, 1984. In its campaign against the bill the Administration also had the support of former Presidents Richard Nixon (ibid., May 24, 1984) and Jimmy Carter (letter to Congressman Lee Hamilton, Chairman of the House Sub-committee on Europe and the Middle East, Committee on Foreign Affairs, June 6, 1984) as well as of three former Secretaries of State, Dean Rusk, Cyrus Vance, and Edmund S. Muskie (Statement to the Congress Regarding the Jerusalem Issue, October 1, 1984). Columnist William Safire took President Reagan to task for opposing the Jerusalem bill since as a candidate he had said, “the sovereignty [there] is Israel's”, New York Times, March 22, 1984.

232 See above in text at nn. 95. 105 and 106.

233 Statement of Harold Saunders, former Assistant Secretary of State for the Near East and South Asia, June 20,1984.

234 “I disagreed when the previous administration referred to them as illegal. They're not illegal.” Jerusalem Post, Feb. 4, 1981.

235 New York Times, April 3, 1984.