Status of Jerusalem


The status of Jerusalem is disputed in both international law and diplomatic practice, with both the Israelis and Palestinians claiming Jerusalem as their capital city. The dispute has been described as "one of the most intractable issues in the Israel–Palestine conflict", with conflicting claims to sovereignty over the city or parts of it, and access to its holy sites. The main dispute revolves around the legal status of East Jerusalem and especially the Old City of Jerusalem, while broader agreement exists regarding future Israeli presence in West Jerusalem in accordance with Israel's internationally recognised borders. The majority of United Nations member states hold the view that the final status of Jerusalem should be resolved through negotiation, and have therefore favored locating their embassies in Tel Aviv prior to a final status agreement. However, in the late 2010s, the international consensus to abstain from expressing a viewpoint on the city's final status has shown signs of fragility, with Russia, the United States and Australia adopting new policy positions. Furthermore, the proposal that Jerusalem should be the future capital of both Israel and Palestine has also gained international support, with endorsements coming from both the United Nations and the European Union.

Background

From the end of the Ottoman–Mamluk War in 1517 until the First World War, Jerusalem was part of the Ottoman Empire. It was part of the Damascus eyalet until, as a result of widespread administrative reform in the mid 1800s, it became an independent sanjak in 1872. Since the 1860s, Jews have formed the largest religious group in the city and since around 1887, with the beginning of expansion outside the old city walls, 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. Much of the property that is now owned by the churches was bought during this time. A number of these countries also established consulates in Jerusalem. After capturing Jerusalem in 1917, Great Britain was in control of Jerusalem; initially under a wartime administration, it was part of the Mandate of Palestine assigned to the Britain in 1920. 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, which called for the partition of Palestine into a separate 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. The Free City of Danzig was a historical precedent for this solution; Trieste was a contemporaneous city ruled by the UN. Jewish representatives accepted the partition plan, while representatives of the Palestinian Arabs and the Arab states rejected it, declaring it illegal.
On May 14, 1948, the Jewish community in Palestine issued the declaration of the establishment of the State of Israel. Israel became a member of the United Nations the following year and has since been recognised by most countries. The countries recognizing Israel did not recognize its sovereignty over Jerusalem generally, citing the UN resolutions which called for an international status for the city. The United States and Guatemala have embassies in Jerusalem.
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 Jerusalem, 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. In 1950, Jordan annexed East Jerusalem as part of its larger annexation of the West Bank. Though the United Kingdom and Iraq recognized Jordanian rule over East Jerusalem, no other country recognized either Jordanian or Israeli rule over the respective areas of the city under their control. Pakistan is sometimes falsely claimed to have recognized the annexation as well.
Following the Six-Day War of 1967, 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 which described it as an annexation and a violation of the rights of the Palestinian population. In 1980, Israel passed the Jerusalem Law, which declared that "Jerusalem, complete and united, is the capital of Israel". The Security Council declared the law null and void in Resolution 478, which also called upon member states to withdraw their diplomatic missions from the city. The UN General Assembly has also passed numerous resolutions to the same effect.

Prelude: UN resolution from 1947

On 29 November 1947 the UN General Assembly passed a resolution which, as part of its Partition Plan for Palestine, included the establishment of Jerusalem as a separate international entity under the auspices of the United Nations, a so-called corpus separatum.

Israel

1948 war and 1949 diplomatic steps

During the 1948 Arab–Israeli War,
Israel took control of West Jerusalem while Jordan took control of East Jerusalem. Although accepting partition before the war, Israel rejected the UN's corpus separatum decision at the Lausanne Conference of 1949, and instead indicated a preference for division of Jerusalem into Jewish and Arab zones, and international control and protection only for holy places and sites. Also in 1949, as the UN General Assembly began debating the implementation of its corpus separatum decision, Israel declared Jerusalem as Israel's "eternal capital".

Aftermath of 1967 Six-Day War

After Israel conquered East Jerusalem from Jordan in 1967 during the Six-Day War, Israel argued that it had the stronger right to the city.
Very soon after its conquest of East Jerusalem in 1967, Israel merged East Jerusalem with West Jerusalem by administratively extending the municipal boundary of the city.

1980 Jerusalem Law

In July 1980, the Knesset passed the Jerusalem Law as part of the country's Basic Law, which declared Jerusalem the unified capital of Israel.

Legal positions since Oslo Accords

On the 'corpus separatum' issue

According to a 1999 statement by the Israeli Ministry of Foreign Affairs, "There is no basis in international law for the position supporting a status of 'corpus separatum' for the city of Jerusalem." In the view of the ministry, the concept of corpus separatum became irrelevant after the Arab states rejected the United Nations Partition Plan for Palestine and invaded the newly created State of Israel in 1948. Accordingly, the ministry states, "There has never been any agreement, treaty, or international understanding which applies the 'Corpus Separatum' concept to Jerusalem."

On sovereignty

In 2003 Israel argued that Jordan had no rights to any land west of the Jordan River, that it had taken the West Bank and East Jerusalem by an act of aggression, and therefore never acquired sovereignty.

Government positions since Oslo Accords

Positions on the final status of Jerusalem have varied with different Israeli governments.

Yitzhak Rabin (Prime Minister 1992–95)

The Oslo Accords declared that the final status of Jerusalem would be negotiated, but Israeli Prime Minister Yitzhak Rabin declared that he would never divide the city. In 1995, he told a group of school children 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'".

Benjamin Netanyahu (Prime Minister 1996–99)

This position was upheld by his successor, Benjamin Netanyahu, who stated there would be “..no discussion of the case of Jerusalem...”.

Ehud Barak (Prime Minister 1999–2001)

Netanyahu's successor, Ehud Barak, during negotiations, became the first Israeli Prime Minister to allow for a possible division of Jerusalem, despite his campaign promises.

Ariel Sharon (Prime Minister 2001–06)

Prime minister during the second intifada, Ariel Sharon was unequivocal in his support for an undivided Jerusalem. In an interview done one week before a stroke incapacitated him he stated: “Our position is that Jerusalem is not negotiable. We are not going to negotiate on Jerusalem. Jerusalem will be forever a united and undivided capital of Israel.”

Ehud Olmert (Prime Minister 2006–09)

Prime Minister Ehud Olmert vowed to keep Jerusalem the "undivided, eternal capital of the Jewish people", but later supported the detachment of several Arab neighborhoods from Israeli sovereignty and the introduction of an international trust to run the Temple Mount.

Benjamin Netanyahu (Prime Minister 2009–current)

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 reflect Israeli public opinion. According to a 2012 poll by the right-wing 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."
On 2 January 2018 Israel passed into law new legislation that requires the two-thirds majority support of the Knesset for any section of Jerusalem to be transferred to a foreign government.
On 25 January 2018, Netanyahu repeated the previous government position but seemed to alter it, reportedly saying: "Under any peace agreement the capital of Israel will continue to be in Jerusalem."

Palestine

During the British Mandate, the main representation of the Palestinian Arabs was the Arab Higher Committee, formed in the beginning of the Great Arab revolt in 1936; it was outlawed in 1937 and its leaders deported. Reconstituted in 1945 and dominated by Palestinian Arabs, it continued in various iterations until 1948, when, viewed as a threat to Jordan, its army was forced to disband. There was unequivocal support for an Arab controlled Jerusalem.
Until the establishment of the Palestine Liberation Organization in 1964, there was little in terms of an internationally recognised representation of the Palestinian Arabs. The Arab League usually took over the job, with the short-lived Egyptian-controlled All-Palestine Government based in Gaza having little sway, and Jordan taking control of the West Bank with East Jerusalem.
Until the Oslo Accords in 1993, and the Letters of Mutual Recognition, the Palestinians, represented since 1964 by the PLO, had at all times rejected any partition of any part of the former British Mandate territory. However, while they had previously rejected the UN's internationalisation plan, most of the Arab delegations at the Lausanne Conference of 1949 accepted a permanent international regime under United Nations supervision as proposed in Resolutions 181 and 194. The Arabs vociferously objected to Israel moving to Jerusalem its national institutions, namely the Knesset, the presidential, legislative, judicial and administrative offices.
The Palestinian leadership now claims the "1967 borders" as the borders of the Palestinian territories, and includes East Jerusalem as part of these territories. Despite recognition of Israel, and its support in 1949 of corpus separatum, it had never conceded sovereignty of Jerusalem. In 1988, Jordan conceded all claims to the West Bank, including Jerusalem, other than the Muslim holy places on the Temple Mount, and recognized the PLO as the legal representatives of the Palestinian people.
The Palestinian National Authority views East Jerusalem as occupied Palestinian territory, in line with UNSC Resolution 242. The PNA 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 final status negotiations, but is willing to consider alternative solutions, such as making Jerusalem an open city. In the Palestine Liberation Organization's Palestinian Declaration of Independence of 1988, Jerusalem is called the capital of the State of Palestine. In 2000 the Palestinian Authority passed a law designating the city as such, and in 2002 this law was ratified by Chairman Yasser Arafat. 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. The status quo on the Temple Mount now is that tourists are allowed to visit, but not pray, on the Temple Mount, although this seems to be slowly changing.

United Nations

The United Nations considers East Jerusalem to be part of Israeli-occupied territories or occupied Palestinian territory. It envisions Jerusalem eventually becoming the capital of two states, Israel and Palestine. This is at odds with other General Assembly Resolutions, which promote an internationally administered Jerusalem.
United Nations General Assembly resolution 181, passed on 29 November 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." The resolution received the consent of the Jewish leadership in Palestine, but it was rejected by the Arabs. This position was restated in the wake of the 1948 Arab–Israeli War in 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."
Although the General Assembly cannot pass legally binding resolutions over international issues, the United Nations Security Council, which has the authority to do so, has passed a total of six Security Council resolutions on Israel on the matter, 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 Security Council, as well as the UN in general, has consistently affirmed the position that East Jerusalem is occupied Palestinian 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".
Many UN member states formally adhere to the UN proposal that Jerusalem should have an international status, as outlined in General Assembly Resolution 181. The European Union has also followed the UN's lead in this regard, declaring Jerusalem's status to be that of a corpus separatum, or an international city to be administered by the UN. On the other hand, and inconsistent with the status of corpus separatum, the UN has designated East Jerusalem occupied Palestinian territory. China recognizes East Jerusalem as the capital of Palestine.
The UN has never revoked resolutions 181 and 194, and maintains the official position that Jerusalem should be placed under a special international regime.UNGA, 30 November 2011,
"Recalling its resolution 181 of 29 November 1947, in particular its provisions regarding the City of Jerusalem,"
"Reiterates its determination 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," Nevertheless, Secretary-General Ban Ki-moon said on 28 October 2009 that Jerusalem must be the capital of both Israel and Palestine.
The United States recognized Jerusalem as Israel's capital in 2017, and moved its embassy there on March 14, 2018, coinciding with the 70th anniversary of the state.

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."

Organisation of Islamic Cooperation

On 13 December 2017, the Organisation of Islamic Cooperation, consisting of 57 primarily Muslim countries, declared East Jerusalem as the capital of the State of Palestine and invited “all countries to recognise the State of Palestine and East Jerusalem as its occupied capital.” The declaration makes no mention of Jerusalem as corpus separatum, nor makes any reference to West Jerusalem.

Location of foreign embassies

After Israel passed the Jerusalem Law in 1980, the UN Security Council adopted Resolution 478, which called upon UN member states to withdraw their diplomatic missions from the city. Thirteen countries—Bolivia, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, the Netherlands, Panama, Uruguay and Venezuela—moved their embassies from Jerusalem 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 remained in Jerusalem, although Bolivia had its embassy in Mevasseret Zion, a suburb west of the city, until relations were severed in 2009.
Various countries recognized Israel as a state in the 1940s and 1950s, without recognizing 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.

Russia

On 6 April 2017 the Russian Ministry of Foreign Affairs issued a statement saying, "We reaffirm our commitment to the UN-approved principles for a Palestinian-Israeli settlement, which include the status of East Jerusalem as the capital of the future Palestinian state. At the same time, we must state that in this context we view West Jerusalem as the capital of Israel." Some commentators interpreted this as a Russian recognition of Israel's claim to West Jerusalem, while others understood the statement as a Russian intention to recognize West Jerusalem as Israel's in the context of a peace deal with the Palestinians. On 14 June 2018, Russia held, for the first time, its annual Russia Day reception in Jerusalem. Until then, the annual reception has been held in the Tel Aviv area. Although Russia has publicly recognised West Jerusalem as the capital of Israel, it continues to locate its embassy in Tel Aviv.
Prior to these events, in 2011 the Russian President Dmitry Medvedev stated that Russia had recognized the State of Palestine with East Jerusalem as its capital already in 1988, and that it had not changed its view.
Russia has publicly opposed Israeli settlement construction in East Jerusalem. In March 2010, the Russian Foreign Ministry denounced Israeli plans to construct homes for Jewish settlers in East Jerusalem, calling the measure "unacceptable" and in opposition to "internationally acknowledged reconciliation proceedings". In January 2011, reaffirming Russia's recognition of the State of Palestine, President Dmitry 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

The United States recognizes Jerusalem as the capital of Israel and maintains its embassy there. Prior to the embassy's opening in Jerusalem on 14 May 2018, the United States maintained its embassy in Tel Aviv, and a consulate general in Jerusalem as part of the "Consular Corps of the Corpus Separatum". When Israel was founded, the position of the United States was that its recognition of Israel did not imply a particular view on the status of Jerusalem. The US voted for the UN Partition Plan in November 1947, which provided for the establishment of an international regime for the city, and Resolution 194 in 1948, following the 1948 Arab-Israeli War. But the US voted against in 1949 which reaffirmed that Jerusalem be established a corpus separatum under a special international regime to be administered by the UN, because the US regarded the plan as no longer feasible after both Israel and Jordan had established a political presence in the city. Since then the US position has been that final status of Jerusalem be resolved through negotiations.
The US Consulate was given a lot in the neighborhood of Talpiot in 1989 with a 99-year lease agreement with the Israeli government and relocated there in 2002. On 14 May 2018, the US reclassified its Jerusalem consulate as the US embassy in Jerusalem.

China

China recognizes East Jerusalem as the capital of the State of Palestine. In a 2016 speech to the Arab League, PRC president Xi Jinping said that "China firmly supports the Middle East peace process and supports the establishment of a State of Palestine enjoying full sovereignty on the basis of the 1967 borders and with East Jerusalem as its capital." China announced that this position remains unchanged in the aftermath of the US recognizing Jerusalem as Israel's capital.

United Kingdom

The United Kingdom position on Jerusalem states that "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. 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".

France

The French Government notes that "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."

Other G20 countries