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  You are in: Home > Middle East Studies > The Holy Places of Jerusalem  
 

The Holy Places of Jerusalem in Middle East Peace Agreements
The Conflict between Global and State Identities

Enrico Molinaro

Enrico Molinaro is is founder, organizer, and fundraiser of the non-profit association Mediterranean Perspectives, and Primary Coordinator of international scholarly conferences with the participation of academic, diplomatic, religious and political authorities. He lectures at Luiss University’s Doctoral Program of Political Theory, and at La Sapienza University’s Master Program of International Protection of Human Rights in Rome, Italy. He has also authored the book Negotiating Jerusalem (Passia, 2002).

 

Throughout history, Jerusalem and its Holy Places have been the objects of fierce religious controversy over worship rights, such as the Holy Sepulchre inter-Christian disputes and the Har Ha Bait/Haram Al Sharif (Temple Mount/Noble Sanctuary) Israeli–Jewish/Palestinian-Muslim disputes. This multidisciplinary study offers two competing political ways of interpreting these disputes and the Arab–Israeli conflict in general: the state/national (territorial) perspective focuses on Israelis and Palestinians as the two main groups entitled to possession of and worship in Jerusalem’s Holy Places; the global/transnational perspective, on the other hand, entitles millions of Jews, Christians, Muslims and their respective clergy worldwide to raise claims to the city’s Holy Places as universal symbols of devotion and worship.

This work provides international law practitioners and Middle East scholars with a thorough overview of the legal, historical and diplomatic interpretation of the provisions embodied in the international documents adopted in the Middle East Peace Process. In addition to applying the legal notion of international local custom, this study provides three alternative terms to express the three different meanings of sovereignty namely, independence, authority and title. Based on his work’s methodology and conclusions, the author has initiated second track meetings behind closed doors between Israelis and Palestinians, which have resulted in a political–diplomatic data-base. Those seeking a deeper understanding of the intricate legal terminology surrounding Jerusalem will find the main results produced by these meetings to be of particular interest, such as The Guidelines for a Jerusalem Statute, wherein both parties share cultural–religious principles towards building a better coexistence in Jerusalem (Annex III), and The Glossary of historically complex terms such as Status Quo and Holy Places (Annex IV).

Preface
Acknowledgments

Introduction

I Purpose of the research
II Methodology and limits of the research
III Sources

1 The Holy Places of Jerusalem in the Middle East Peace Agreements
1.1 The Declaration of Principles on Interim Self-Government Arrangements (DoP) of September 13, 1993
1.1.1 The secret negotiations held in Oslo leading to the DoP
1.1.2 The reference to Jerusalem in the DoP provisions
1.1.3 The territorial–political status quo in Jerusalem after the DoP
1.2 The letter sent on October 11, 1993, by Israeli Foreign Minister Peres to Norway’s Foreign Minister Holst
1.3 The Israeli–Jordanian Peace Treaty of October 26, 1994
1.3.1 The Status Quo/Modus Vivendi on the Har Ha Bait/Al Sharif Haram
1.3.2 The competition between Jordan and the PLO on the Jerusalem Waqf
1.4 Agreements concluded by the Holy See mentioning the Status Quo
1.4.1 Fundamental Agreement with Israel (December 13, 1993)
1.4.2 Basic Agreement with the PLO (February 15, 2000)

2 Personal Jurisdiction in the Ottoman Empire and the Origin of the inter-Christian Status Quo
2.1 Personal and territorial criteria for organizing Political authority: A historical overview
2.1.1 Roman Empire until the Middle Ages
2.1.2 Legal–historical background of the term sovereignty and its three different aspects: Independence, authority and title
2.1.3 Functional, personal and territorial jurisdiction in international practice: The limits of the European state model
2.2 The principle of personal jurisdiction in the Ottoman Empire
2.2.1 The application of personal jurisdiction in the Millet system
2.2.2 The Capitulations and the consular jurisdiction applied to foreign and protected persons
2.3 The origin of the Status Quo in the Christian Holy Places under Ottoman rule
2.3.1 The Ottoman Firmans and the guarantees towards the Christian population of the Empire in the Paris Treaty of 1856
2.3.2 The Berlin Treaty’s new attitude of protecting all Christendom
2.3.3 The introduction of the state model to the Middle East and the origin of Arab nationalism

3 The Status Quo in the Holy Places during the British Mandate
3.1 The concept of the Holy Places’ inviolability for all religions
3.1.1 Theodor Herzl’s and Herbert Samuel’s plans for a Jewish role in Palestine
3.1.2 The Sykes–Picot Agreement and the Husayn–McMahon correspondence
3.1.3 The negotiations with the World Zionist Organisation and the Balfour Declaration
3.2 British steps towards Holy Places’ international protection at Peace Conferences
3.2.1 Priority of world interest in the Holy Places at the Paris Peace Conference
3.2.2 The King–Crane Commission and the San Remo conference
3.3 The terms of the mandate in Palestine approved by the League of Nations
3.3.1 The British policy towards the Muslim, Christian and Jewish communities
3.3.2 The development of the Palestinian-Arab and the Jewish-Zionist national movements
3.3.3 The 1929 disturbances and the Jewish–Muslim Status Quo/Modus Vivendi
3.4 Settlement of disputes on rights and claims in connection with the Holy Places
3.4.1 Immunity from ordinary jurisdiction according to the 1924 Palestine Holy Places Order in Council
3.4.2 The competent body to settle the Holy Places’ disputes
3.4.3 A critique of the erroneous interpretation of the local government’s authority according to the
Paragraph 3 of the 1924 Order-in-Council
3.5 The proposals of a special regime for Jerusalem from1937 to 1947
3.5.1 The Peel and Woodhead Commissions’ partition plans
3.5.2 The 1939 White Paper, President Truman’s policy and the termination of the British Mandate
3.5.3 The United Nations Special Committee on Palestine (UNSCOP)
3.5.4 The Partition Resolution’s special regime for Jerusalem and the status of the General Consuls in the city

4 The Status Quo/Modus Vivendi of the Holy Places in the Arab–Israeli Conflict
4.1 The Jordanian–Israeli Armistice Agreement of April 3, 1949
4.1.1 The partition of Jerusalem between Israel and Jordan
4.1.2 Israeli position on the protection of the Holy Places
4.1.3 The Israeli Draft Resolution on Jerusalem submitted to the General Assembly on November 25, 1949
4.1.4 The position of the United States on the partition of the city
4.2 Jordan’s practice until 1967
4.2.1 Jordanian position on the administration of the divided city
4.2.2 Jordanian practice in the Holy Places
4.3 Israeli practice in the Holy Places since 1967
4.3.1 Israeli Jurisdiction over East Jerusalem
4.3.2 The preservation of the Status Quo in the Christian Holy Places
4.3.3 The new Modus Viviendi in the Muslim–Jewish Holy Places

5 The Legal Regime Applied to the Holy Places of Jerusalem
5.1 Legal–empirical criteria to define the Holy Places
5.2 The Status Quo in the Christian Holy Places
5.3 Procedural and material norms of the Status Quo system of law
5.4 The relationship between the Status Quo/Modus Vivendi and the principles of freedom of religion and worship
5.5 The broader cultural–religious status quo in Jerusalem
5.6 Hypothesis of an international local custom (objective regime) and the binding effects of unilateral declarations
5.7 The partial suspension of the principles applied to the Holy Places in times of war

Conclusions and Suggestions for Further Research
A. The Status Quo/Modus Vivendi and the Quartet’s Road Map in the perspective of the global and state identity models
B. Suggestions for further research
B.1 The competition between the two identity models and the cycles of Western history
B.2 Legal implications of the three alternative definitions of sovereignty
C. Israeli–Palestinian meetings behind closed doors on Jerusalem and its Holy Places

Annexes
Annex I: The Palestine (Holy Places) Order in Council, 1924
Annex II: Provisions included in international documents adopted in the context of the Middle East Process mentioning Jerusalem or the Holy Places (in chronological order)
(a) Letter sent on October 11, 1993 by Israeli Foreign Minister Peres to Norway’s Foreign Minister Holst
(b) Fundamental Agreement between Israel and the Holy See, signed on December 13, 1993
(c) Section 3 of the Washington Declaration, signed by Israel and Jordan on July 25, 1994
(d) Article IX of the Peace Treaty between Israel and Jordan, signed on October 25, 1994, titled “Places of Historical and Religious Significance and Interfaith Relations”
(e) Basic Agreement between the Holy See and the Palestine Liberation Organization, concluded on February 15, 2000
Annex III: Principles governing the cultural and religious status quo in Jerusalem
(a) Preamble: special objectives of the authorities administering the city
(b) Principles applying to the Holy Places, religious buildings and sites
(c) Religious and cultural rights of the local communities
(d) Religious and cultural rights applying to all visitors and residents
Annex IV: Glossary of key terms related to sovereignty and status quo
(a) Different meanings of the term sovereignty
1. Independence
2. Title
3 Authority
(b) Different meanings of the expression status quo in Jerusalem
1. The Status Quo (capitalized) in the Holy Places between the recognized communities
2. The cultural/religious status quo (not capitalized) between the recognized communities and the territorial authorities
3. The political/territorial status quo (not capitalized) between the Israelis and the Palestinians

Notes
References
1. Books
2. Journals
3. Unpublished material
4. Official documentation (in chronological order)
5. United Nations documentation
6. International jurisprudence (in chronological order)
7. Newspaper articles
Index


“The status of the Holy places in Jerusalem is central to any resolution of the Israel-palestine conflict. It is not for nothing that the late King Husayn of Jordan suggested that ownership of the Temple Mount belongs to g-d. From a more mundane perspective, however, the Holy places must be regulated through international as well as domestic legal instruments.

Enrico Molinaro ... approaches the subject through the prism of two competing collective identities: the global/transterritorial model and the state/territorial model.
There is no doubt that Molinaro supports the global/transterritorial model of collective identity and looks to a stippled definition of sovereignty that distinguishes between concepts such as title, jurisdiction, and independence. He wants to apply the experience of the Ottoman millet system as well as the system of colonial capitulations and indeed (although he does not deploy this example), the overlapping sovereignties of the Holy Roman Empire, to the problem of the Holy places. In his view, the “vested interests of the recognized [religious] communities in the Holy places are protected by international principles.”
Molinaro may very likely be correct in his policy prescriptions, but the legal analysis he uses to reach it is not without controversy. For example, Molinaro’s analysis places considerable weight on the legal status of the so-called “Status Quo.” The “Status Quo” is the term given to the collection of (often contradictory) firmans or decrees issued by the Ottoman sultans concerning Christian “rights” or “privileges” in the Holy places (i.e., question of possession, access, repair, houses of worship, internal administration, etc.) These rules were collectively “enshrined” in international law by the 1878 Treaty of Berlin and the British Mandate for palestine and later reaffirmed by Jordan in 1948.

The exact legal authority of the Ottoman “Status Quo,” however, is unclear. The Ottomans viewed the firmans as an extension of privileges granted by the sultans. In contrast, the Christian communities viewed them as having the quality of rights. Equally important, the “international law” consequences today of the Treaty of Berlin and even the League of Nations Mandate for the State of Israel is an elusive matter.

Molinaro is an outlier in his reciting of the relevant legal documents regarding Jerusalem’s Holy places. For one, he puts con¬siderable weight on the so-called “Holst letter.” That letter between then Israeli Foreign Minister peres to Norway’s Foreign Minister Holst dated October 11, 1993 was a “side” letter to the Oslo Accords which stated that “the palestinian intentions of East Jerusalem and the interests and well being of the palestinians of East Jerusalem are of the greatest importance and will be preserved,” further stating that “all the palestinian institutions of East Jerusalem, including the economic, social, educational, and cultural, and the holy Christian and Muslim places, are performing an essential task for the palestinian population.”

Molinaro argues that the Holst letter forms an “integral part” of the Oslo Agreement and has legal implications for the Israeli government. Most international lawyers, however, would follow Ruth Lapidoth’s view that the letter is a mere statement of policy of the Israeli government at one moment in time. Israel, for technical reasons, reaffirmed the principles represented by the “Status Quo,” but not the “Status Quo” in terms. As Molinaro points out, it did use the term in the Fundamental Agreement between the Holy See and the State of Israel signed in 1993. Similarly, Molinaro holds the outlier view that the 1924 Mandatory Order-in-Council removing issues of Holy places from the Mandate courts and placing them in the executive branch was a temporary measure designed to facilitate funneling of those controversies to the (never created) multi-religious Holy places Commission (or failing that, to a committee of the League of Nations). However, while this view has been considered heterodox, recent work by Raymond Cohen in Saving the Holy Sepulchre suggests that Viscount Samuel, the then British High Commissioner for palestine, had something like this view in mind (i.e., reference to an international body) when the Order was proposed in 1924.
This said, Molinaro presents an important reminder that the international aspect of Jeru¬salem cannot easily be ignored and that the solution to the challenge of Jerusalem may well require arrangements with parties beyond Israel and the palestinian Authority. Indeed, there was a time when Israel itself seemingly recognized this, as when Abba Eban stated (November 15, 1971) that Israel does not wish “to exercise unilateral jurisdiction or exclusive responsibility in the Holy places.”

Molinaro’s volume is a welcome addition to the growing bookshelf of studies on sacred space in the Holy Land.” Middle East Journal, Reviewed by Marshall J. Breger

“A well-researched book that displays profound insight into the unique legal regime of the Status Quo at the Holy Places. Dr. Molinaro is to be congratulated for having written an authoritative and readable account. Courageously, he has not shrunk from rightly setting the question of the Holy Places into their wider context of diplomacy, philosophy, and politics. He has produced an outstanding legal-historical analysis with great relevance for the future of Jerusalem.” Professor Raymond Cohen (Chaim Weizmann Professor of International Relations, Hebrew University of Jerusalem, and Corcoran Visiting Professor of Christian–Jewish Learning, Boston College), author of Saving the Holy Sepulchre

“To forecast peace in the Palestinian territories may seem like a dream, but we, Europeans, are striving in all possible ways to see that dream realized. One of the best ways to do this is to conduct a thorough investigation of the details concerning Jerusalem’s Holy Places, where three religious faiths meet and too often collide. This is what Dr. Enrico Molinaro has done in a really outstanding book full of useful suggestions. This is a book which is strongly recommended for those seeking to fully understand the historical and legal specifics of the situation in and around Jerusalem.” Luigi Ferrari Bravo, Professor of International Law, University of Rome, Former Judge of the International Court of Justice

 

Publication Details

 
Hardback ISBN:
978-1-84519-335-5
 
Paperback ISBN:
978-1-84519-404-8
 
Page Extent / Format:
204 pp. / 246 x 171 mm
 
Release Date:
April 2009; paperback, March 2010
  Illustrated:   No
 
Hardback Price:
£65.00 / $99.50
 
Paperback Price:
£22.50 / $37.50
 

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