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The Practice and Case Law of Israel in Matters Related to International Law

Published online by Cambridge University Press:  04 July 2014

Deborah Perla
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Extract

I. The Fundamental Agreement between the Holy See and the State of Israel

On December 30, 1993, the Fundamental Agreement between the Holy See and the State of Israel was signed in Jerusalem by representatives of both parties. The agreement, which precedes the first diplomatic relations entered into between the Holy See and the State of Israel, covers areas of international relations which include both general issues such as human rights and freedom of religion and particular issues regarding Vatican-Israel relations, such as the status of the Catholic Church in Israel and the role of the Holy See in territorial disputes in the region. The goals and meanings of many of the provisions of the Agreement have as yet to be further defined however, and several of them will be discussed following a brief survey of the historical events leading to the conclusion of this agreement.

Type
International Law
Information
Israel Law Review , Volume 28 , Issue 4 , Autumn 1994 , pp. 707 - 730
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1994

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References

1 (1994) 33 International Legal Materials 153.

2 This position was expressed by an official of the Apostolic Delegation of the Vatican during the period that this Agreement was under discussion, in a paper entitled, “Answers to Questions Frequently Asked about the Relations Existing between the Holy See and the State of Israel”, December, 1993.

3 “Comments on the Fundamental Agreement between the Holy See and the State of Israel”, (June 1994) 2 Justice (Journal of the Association of Jewish Lawyers) 24.

4 Ha'aretz, September 30, 1994, p. A-4.

5 Minerv, Yitzhak Sergio, “The Agreement with the Vatican: Objectives which have been Reached and Problems which Remain Open”, (Winter, 1995) 130 Gesher 42, at 47Google Scholar.

6 Supra n. 2.

7 Article 1 of the Montevideo Convention on Rights and Duties of States 1933 (165 League of Nations Treaty Series 19), which contains the most widely accepted formulation of the criteria of statehood, requires: (a) a permanent population; (b) a defined territory; (c) government; (d) capacity to enter into relations with other states.

8 Shaw, Malcom N., International Law (Grotius Publications Limited, Cambridge, 1991) 167–168Google Scholar; on the issue of the legal personality of the Vatican City, see also, Brownlie, Ian, Principles of Public International Law (Clarendon Press, Oxford, 4th ed., 1990) 65–66Google Scholar.

9 See, e.g., Opinion No. 1, Conference on Yugoslavia, Arbitration Commission, (1993) 92 International Law Reports, 162, 163.

10 Shaw, supra n. 8, at 243-5.

11 Supra n. 3, at 25.

12 Ibid.

13 Personal interview with Mr. Eitan Margalit on November 16, 1994.

14 Minerv, supra n. 5, at 47.

15 Justice, supra n. 12, at 26.

16 See e.g., The Holy See and the Middle East, Address by Archbishop Renato R. Martino, Middle East Colloquium, Fordham University, April 10, 1989, Reproduced in Lapidoth, Ruth and Hirsch, Moshe, eds., The Jerusalem Question and its Resolution: Selected Documents, (Martinus Nijhoff Publishers, The Netherlands, 1994)Google Scholar.

17 34 L.S.I. 209.

18 Hirsch, Moshe and Housen-Curiel, Debra, The Jerusalem Question: Proposals for its Resolution, (The Jerusalem Institute for Israel Studies, Jerusalem, 1994) 117Google Scholar.

19 Ibid.

20 Minerv, supra n. 5, at 50.

21 The Jerusalem Post, September 30, 1994, p. 2.

22 Hirsch, Moshe, Housen-Couriel, Debra and Lapidoth, Ruth, Whither Jerusalem? (Martinus Nijhoff Publishers, Dordrecht, and the Jerusalem Institute for Israel Studies) to be published in 1995Google Scholar.

23 Ibid.

24 Zander, Walter, “On the Settlement of Disputes about the Christian Holy Places”, in (1973) 8 Is. L.R. 332–3Google Scholar.

25 Ibid.

26 Ibid., at 337.

27 See Lapidoth, “Lexicon of Terms” in Hirsch and Housen-Curiel, supra n. 18, at 149.

28 Ibid.

29 Zander, supra n. 26, at 342.

30 Ibid., at 344.

31 Ibid., at 349.

32 Ibid., at 350.

33 Supra, n. 28.

34 Divrei HaKnesset, vol. 4 (2nd Session), reproduced in Ruth Lapidoth and Moshe Hirsch, eds., The Jerusalem Question and its Resolution: Selected Documents, supra n. 16, at 81-82.

35 Supra, n. 23.

36 The Random House College Dictionary, Stein, Jess, ed. (Random House, 1979) 1124Google Scholar.

37 Ibid., at 807.

38 Nationalist Circles (registered association) v. Minister of Police (1970) 24(ii) P.D. 141.

39 Orthodox Coptic Archbishop of Jerusalem and the Near East v. Minister of Police (1971) 25(i) P.D. 225, at 234.

40 Drayton, , Laws of Palestine (1934) vol. 3, p. 2625Google Scholar.

41 Supra n. 13.

42 Aryeh Ganber v. The Tel Aviv Assessing Officer (1993) (as yet unpublished; Takdin 93(2) 1190).

43 1 L.S.I. [N.V.] 145, at 147.

44 Supra n. 42, at 1194.

45 500 U.N.T.S. 95.

46 Supra n. 42, at 1194.

47 Ibid.

48 Ibid., at 1193.

49 Ibid.

50 Ibid., at 1194.

51 I. Brownlie, Principles of Public International Law, supra n. 8, at 361-362.

52 Ibid.

53 These articles, respectively, refer to the size of the consular staff, the nationality of consular officers, and persons declared “non grata”.

54 Para. 3 of Article 23 states:

A person appointed as a member of a consular post may be declared unacceptable before arriving in the territory of the receiving State or, if already in the receiving State, before entering on his duties with the consular post. In any such case, the sending State shall withdraw his appointment.

55 Supra n. 42, at 1193.

56 Italian Consulate Employee Case, (1978) 75 International Law Reports 97–98Google Scholar.

57 Ibid., at 98.

* Our thanks to the Foreign Office for providing us with this material.

58 Third United Nations Conference on the Law of the Sea, Official Records, volume XVI, 182nd meeting. The representative of Israel, after the procedural vote in which Israel had been the sole State voting No, said, almost prophetically, that “history had shown that at times even a minority of one could be in the right”.

59 United Nations Conference on the Law of the Sea, Official Records, volume XVII, 184th meeting, 24 September 1982; 190th meeting, 8 December 1982.

60 It is not widely known that in the First Committee of the General Assembly at its 1708th meeting on 2 December 1969 Israel expressed strong reservations at the idea of convening the Conference, and at the Committee's 1799th meeting on 15 December 1970 Israel abstained in all the crucial votes regarding the convening of the Conference.

61 United Nations General Assembly, 49th session, Official Records, 78th meeting (A/49/PV.78).

62 This list was kindly provided by Ms. Hemda Golan, Deputy Legal Advisor and Director of the Treaty Division and by Ms. Annie Dadon of the Treaty Division, Israel Ministry for Foreign Affairs, Jerusalem.