The Status of Jerusalem: The Legal Aspects

Rev. Majdi Al-Siryani, Latin Patriarchate of Jerusalem

October, 1998

The numbers beside some sentences, titles...are related to the notes at the end of the article

We put on different color things that we wanted to underline.

INIRODUCTION:

The legal aspects related to the Jerusalem question are numerous, very complex, and deeply rooted in historical, religious and polical factors. Actually, it is not easy to dissociate these elements from one another. Moreover, at this very time when mainly emotional judgements are dominating the stage, it is a difficult task to talk about the legal aspects of this question. Indeed, much of the literature on the Jerusalem issue is unfortunately partial, biased and far from objectivity. Oriented mass media has lot to do with this.

Nonetheless, it is essential to dissociate the legal aspects from the other aspects for a better understanding. Accordingly, the central legal issues concerning Jerusalem could be identified as follows:

1- Territorial sovereignty;

2- municipal administration;

3- the Holy Places.

Because of its identification as the Holy City of the three monotheistic religions, the city of Jerusalem alone has different groups with significant non-indigenous populations laying claims to title. Without denying the religious implications of the problem, it is abundantly clear that the core of today's struggle centers on territorial sovereignty. The advanced claims range from exclusive sovereignty of one party to exclusive sovereignty of the other party.

The troubling problem is the fact that both parties claim Jerusalem as the capital of their respective States and neither is welling relinquish its claim. On the other hand, the creation of new facts on the ground, that constitute an irreversible fait accompli, is becoming a further complication to the ready highly complicated question. it is also altering the legal status and the universal character of the City.

This paper has the aim to clarify the background regarding the legal issue of territorial sovereignty, which is essential to the understanding of the current legal status of the City, as well as the understanding of many other legal issues inherent to this question. The basic objective of this paper is to briefly analyze the principal claims to title to Jerusalem advanced by both parties to the conflict. In no way do t pretend to be exhaustive.

Our inquiry will consider two principal groups of claims: the first group is the historical connection to this land, and the second group is the recent legal claims to title that are supported by arguments and documents. This analysis will help answer the question of whether or not the parties have a sound legal basis for their claims, and therefore a sound basis for their political control over the City or not.

I- HISTORIC CLAIMS:

The first type of the advanced claims to sovereignty over the city is the historic claim. Both Arabs and Israelis propound historic connections to Palestine dating back to biblical times. While Jews trace back their roots to the patriarch Abraham, circa 1800 BC, Arabs base their claim on their time-immemorial status as the majority-population of Palestine. They claim the Canaanites as their ancestors. Moreover, Israeli claims are said to be based on divine covenant, election and donation.

As for the idea that the establishment of the State of Israel is the actualization of a divine promise needs clarification. From a theological standpoint, to identify today's Israel as the restoration of the Old Testament Israel, without the Old Testament's conceptions of priesthood, sacrifices, monarchy, and more essentially the renewal of the covenant, is doubtful. God's commitment to Israel needs to be seen as part of the total perspective of God's purpose for the whole humanity.

However, Israelis nowadays do not place primary emphasis on this religious dimension, which is more of a Christian idea. According to recent statistics, the number of Israelis living in Israel, who believe in JHWH, are fewer than those who do not believe.1

From a legal point of view, the basic criterion in any claim to territory is occupation. The key element in resolving such claims according to the International Court of Justice is the effectiveness of occupation.2

The Israeli claims do not include any long standing territorial occupation and use of the territory, rather, they claim an ancient. religious and cultural connection to it. In reality, established history reveals that consolidated Jewish rule lasted only 400 years, from .1000 BC to 587 BC. During nineteen centuries since their dispersion after the destruction of the Temple in 70 AD, they ceased to exist in Palestine as a people.3

Moreover, this claim, supposedly accepted, ignores the rules of prescription existing in any legal order. A title to property is lost if not claimed within a reasonable period of time. This loss is conditioned also upon the "peaceful and uninterrupted reign" by an occupying power, which replaced the legal sovereign. This latter, the occupying power, could press the legal claim of prescription only if its possession of the territory extended for a reasonable time, and was open, notorious and active.4

As for Arab occupation, it was more significant both in terms of numbers and authority. The Islamic conquest put an end to the rule of the West in the year 638, and except for the interlude of the Crusades and later on of the Ottomans, Jerusalem remained under the Arabs up until 1967. This tenure gave them a prescriptive right to Palestine.5 The demographic shift in favor of the Jewish population in the aftermath of the 1948 war was the result of involuntary massive wartime displacement. Thus, the legal couclusion is that this involuntary shift does not effect the Palestinian historic claims.6

Finally, international stability cannot condone the acceptance of such claims. The term is disruptive, dangerous, and constitutes a threat to world peace and stability. The acceptance of the principle of historic rights could lead us to non-desirable couclusions.7

The historic claims are thus disregarded for two main reasons:

First, because they lack any legal validity since they are not based on occupation.

Second, because of the dangerous impact they could have on today's political thinking of different communities.

II- RECENT CLAIMS:

A) The Seminal Roots: The Balfour Declaration and the Mandate:

Israel's claims to Palestine in general, and to the city of Jerusalem in particular, found their first legal support in the Balfour Declaration of 1917. The Declaration came in the form of a monumental letter from British Foreign Minister Arthur Balfour to Baron Rothschild. It has since been referred to as one of the seminal documents leading to the establishment of the State of Israel. The Declaration has been characterized as having significant legal bearing upon its claims to the country.

We have to bear in mind the following facts:

1- The Declaration was issued on November 2, 1917, when Turkey not Britain, ruled Palestine. Britain thus had no legal authority to make such a promise.

2- At no time did the British possess any right of sovereignty over Palestine. The terms of the Mandate, according to the International Court of Justice, did not include any cession of territory or transfer of sovereignty.

3- The promise was made without the consent of or even the consultation with the indigenous population.

A promise made by a third party to another third party about the property of yet another third party is no more than a unilateral political declaration.

However, the provisions of the Declaration were incorporated in the text of the League of Nations Mandate over Palestine entrusted to Britain in 1922. Regardless of its initial illegality, the Declaration obtained multilateral assent and became binding as international law. Additional authority was obtained when the US adhered to the Mandate in 1924. The sanction of international recognition was henceforth given.9

On November 29, 1947, UN General Assembly Resolution 181 (II), known as the Palestine Partition Plan, emphasized that "The States [Arab and Israeli. shall be bound by all international agreements and conventions, both general and particular, to which Palestine has become party."10

When in May 1948 Israel declared its statehood, there was no protest whatsoever of any of the States parties to the Mandate or from any other State against the Israeli reliance upon the Balfour Declaration as the legal basis for its territorial claims, This failure of the States to protest gave legal authority to the Declaration. Thereby establishing the Declaration as international law through the recognized customary law-making process of the implicit agreement of States expressed by toleration, acquiescence and silence.

It is true then that the Balfour Declaration acquired legal authority, but to ensure this legal authority, the Declaration must be interpreted consistently with the basic limitations of the rules international law. Accordingly, unless the parties to the conflict recognize the preeminence of the two safeguard clauses11 over the favor clause, and interpret them in the context of the Mandate system as a "sacred trust of civilization" to the mandated people, the Declaration would have no legal meaning or authority. Definitely, therefore, the continuing legal validity of the Declaration is a very limited and conditional grant to the Israeli claims.

It is worth noticing that until that moment Jerusalem was not mentioned by name but treated as an integral part of Palestine.

B) The Palestine Partition Plan: G.A. Resolution 181(II):

On November 29, 1947, the UN General Assembly adopted with the full authority of thirty-three votes in favor to thirteen against and ten abstentions General Assembly Resolution 181(II), known also as the Palestine Partition Plan.

The Plan proposed the following:

1- the establishment of two States, an Arab State and a Jewish State;

2- minority protection guarantees;

3- provisions for individual emigration and citizenship;

4- internationalization of Jerusalem under a "Special Regime";

5- and finally, supranational integration through the "Economic union of Palestine".

The entire Plan was to be placed under international supervision, and the Security Council would retain jurisdiction over all attempts to "alter the Plan by force".

General Assembly Resolution was denounced as illegal mainly on the ground that:

1- it was anti-UN Charter and immoral;12

2- the UN did not have any authority over Palestine. It only had supervisionary power.13

Despite the fact that the UN, according to international legal doctrine, had gone ultra vires, the combination of different circumstances and developments effected the legal status of the Partition Plan and gave it legal authority:

I- the UN acted out of great necessity;

2- the UN was the only competent body to do so;

3- the Resolution was adopted by two thirds vote required for important questions;

4- both parties accepted later on the Plan later on;

5- all subsequent resolutions concerning the Palestinians rights to self-determination, to return, and others were consistent with the basic provisions of the Resolution;

6- all subsequent resolutions were consistent with the continued existence of the State of Israel as one of the two States proposed in the Plan, provided that Israel complies with the obligations and restrictions which are conjoined with the authorization to establish a State;

7- the validity of the Resolution is not dependent upon its subsequent effectuation.

Therefore, we are led to 'conclude that the Palestine Partition Plan continues to provide legal. authority, combined however with restrictions upon that authority, for each of two states in Palestine,

The Resolution was not implemented, and the partition of Palestine came as a result of the 1948 war between the Arabs and the Jews, The city of Jerusalem was divided at that time. The Jordanians controlled the eastern part and the Israelis the western part. Soon after, the Israeli leaders declared the establishment of the Israeli State. In their declaration of independence, they relied upon General Assembly Resolution 181(11), in addition to the historical connection to Palestine, as the legal basis of their statehood.

C) "Void of Sovereignty" Claim:

In the absence of an official title, Israeli scholars formulated a different argument, the "Void of Sovereignty" claim, to demonstrate that their control over West Jerusalem is legal. According to this claim, Jerusalem, as well as the whole of Palestine, was in legal terms a terra 'nullius (or a res nullius) open to occupatton.14

This "Void of Sovereignty" claim is rejected on the ground that no such void or suspension existed. Both the territory and population of Palestine had constituted an identifiable entity already under the Roman Empire, then under the Arabs, and later under the Ottomans. The mandate system itself was predicted on the existence of a Palestinian entity, which was entitled to "provisional independence." Under the British administration, in fact, Palestinian legislative, executive and judicial bodies existed. Palestine had also a flag and passports recognized abroad. It indeed had all the earmarks of a national State.

In 1947, the UN accorded to the Palestinians a de jure recognition of their status as a people with right to self-determination in the provisions of General Assembly Res. I 81 (II). Therefore, Jerusalem, the heart of this country, cannot be considered terra nullius (or a res nullius)? The assertion of sovereignty by another entity is thus an infringement of the rights of the lawful putative sovereign.15

In 1949, Israel. moved the Knesset, the Supreme Court, and its ministries to West Jerusalem, On January 23, 1950, the Israeli government proclaimed Jerusalem as the political capital of the State of Israel. The international community, including the US, refused to recognize the Israeli measures and maintained their embassies in Tel Aviv.

In 1967 war broke out between Arabs and Israelis. As a result of the war, Israel occupied the West Bank and Gaza strip. including East Jerusalem.

D) Israeli Claims to East Jerusalem:

East Jerusalem constitutes a more complicated issue. The Israelis have to prove that their occupation was lawful under international law, and they have to prove that they could go on interminably with this occupation.

1- Lawful Occupation through "Self-Defense":

The first claim was that the Israeli occupation was the result of self-defense" measures allowed under article 51 of the UN Charter.16 The Israeli claim is built on the assumption that there was an imminent threat of "armed attack" from the part of Egypt. Therefore, it acted in defensive conquest. As for occupying East Jerusalem, Israel asserts that Jordan struck first.17

Regardless of the uncertainty of these allegations which have not been proven or generally accepted - a lawful war in origin cannot not go on being lawful to whatever lengths it may be pursued. Assuming that the "self-defense" claim is right (although it is debated), the conclusion that title to territory may be obtained by "defensive conquest" is defective. According to article 2(4) of the UN Charter, a State exercising national defense may go beyond its national boundaries to repel an attack, but it may not go beyond its territories to acquire territories. Such legal conclusions are repugnant to the principle of "imminent threat and proportionality." Being a territory taken during hostilities, East Jerusalem, as well as the whole West Bank, according to international law criteria, are under belligerent occupation.'

2- The "Missing Reversioner" Theory'.

Another path was followed by Professor Yehuda Blum to cover the gap in the "defensive conquest" claim. He contended that Jordan was not a legitimate sovereign in Palestine. Since there was no ousted legitimate sovereign - "a missing reversioner" - to whom the territory would revert, and given that Israel has a relatively stronger title to the territories, Israel, therefore could take possession of Judea and Samaria.19 According to this line of thinking, the legal standing of Israel in the Occupied Territories is that of a State which is lawfully in control of territory in respect to which no other states can show better title.

The "Missing Reversioner" theory is built on the following assumptions:

1- Israel acted in "self-defense";

2- Jordan was not a legal sovereign;

3- belligerent occupation yields sovereignty;

4- the Palestinian people have no right to self-determination.

All of these assumptions were refuted under international law. Once again, this theory is not able to legally justify the prolonged military occupation of East Jerusalem.20

3- Jerusalem was "Open to Occupation":

Another assumption asserts that Israel acquired sovereignty because Jerusalem was open to occupation. This assumption is based on the fact that according to General Assembly Resolution 181(11), sovereignty over Jerusalem was vested neither in the Israelis nor in the Palestinians, but in the UN. When the UN relinquished its intent to internationalize Jerusalem, it relinquished its sovereignty over the City which became open to occupation. Loss of title or acquisition of title became available to either Israelis or Arabs through the legitimate means of traditional methods recognized in customary international law.

This is another defective argument, and for multiple reasons it will not stand in law. The essential point is the fact that it ignores the existence of a people and their recognized right to self-deterrnination.21

These arguments and many others have been advanced to justify the Israeli presence in the Occupied Territories, but so far as its presence in East Jerusalem is concerned, Israel has failed to gain any recognition whatsoever to territorial sovereignty neither from the international community as a whole, nor from any single State. In all their claims, the Israelis overlooked or ignored a crucial point: the Palestinian people have an inherent and internationally recognized right to self-determination.

10- THE "JUDAIZATION" OF JERUSALEM:

As a result of the 1967 war, Israel occupied the West Bank including East Jerusalem. Although Israel's claims to sovereignty over East Jerusalem have been legally challenged and condemned, Israel purported to apply its domestic law to East Jerusalem and its environs declaring that the "complete and unified" Jerusalem is the "eternal capital" of Israel.

Promptly alter, on June 18, 1967, the Knesset amended the law of 1950, bringing East Jerusalem under direct Israeli law by acts that amount to a de facto annexation.22 Following the enactment of these laws, the General Assembly adopted Resolution 2253(ES-V) declaring the invalidity of this enactment.23 After several months of passionate on-stage debate, the SC unanimously adopted (by fifteen votes) its famous Resolution 242 (1967).24 In addition to the principle of "the inadmissibility of the acquisition of territories by war", and despite its ambiguous verbiage, the operative paragraphs of the Resolution provided for the:

1- Withdrawal of Israeli armed forces from territories occupied in the recent conflict;" and,

2- "Termination of all claims of states of belligerency and respect for and acknowledgement of the sovereignty and territorial integrity and political independence of every state in the area."

Security Council Resolution 242 (1967) did not mention Jerusalem separately. Jerusalem was treated as an integral part of the Occupied Territories. The focus of attention shifted now to the Security Council. All the consequent Security Council resolutions will stress the same aforementioned principles. Along with General Assembly Resolution 181(11), Security Council Resolution 242 (1967) became the basis and the framework of any possible solution.

However, Israel never accepted to comply with the UN resolutions, and continued its policies aiming at the "Judaization" of the City. In May 1980, a bill declaring Jerusalem to be the capital of Israel was introduced to the Knesset (Basic Law Bill). By this unilateral declaration, Israel reinforced the de facto process of altering the status and character of Jerusalem. The Security Council responded by passing Resolution 476 (1980)25, by a vote of 14 to 0. The US abstained. The Security Council warned Israel not to take measures that would effect the status of Jerusalem, and reaffirmed that these ''legislative and administrative measures and actions.. have no legal validity and constitute a flagrant violation of the Fourth Geneva Convention."

Despite the international condemnation, the Israeli mentioned bill was ratified and enacted on July 30, 1980. This action promoted the passage of Security Council Resolution 478 (1980)26 on August 20. This Resolution passed by a vote of 14 to 0. Again US abstained. The SC took punitive measures against Israel and considered its actions as null and void. Paragraph 5 called upon all members not to recognize.. the Israeli measure. Furthermore, it called for the withdrawal of all diplomatic missions located in Jerusalem. This decision was based on the conviction that the "basic law" constituted a proscribed attempt to alter the status and character of Jerusalem.

The General Assembly too reacted by passing General Assembly Resolution 35/169E.27 Only Israel voted against it. Again on December 10, 1981, the General Assembly adopted Resolution 36/120E. It stated that the General Assembly "Determines once again that all legislative and administrative measures and actions taken by Israel, the Occupying Power, which have altered or purport to alter the character and status of the Holy City of Jerusalem and in particular, the so-called 'basic law' on Jerusalem and the proclamation of Jerusalem as the capital of Israel, are null and void and must be rescinded forthwith."

One of the latest resolutions, just to mention an example, was the one that followed the Israeli interministerial Committee's decision for Jerusalem to start the first phase of work on the Hill of Abu-Ghneim (Har Homa). GA Resolution ES-10/2 of April 25, 1997 condemned the construction of new settlements in East Jerusalem and declared illegal and invalid all the Israeli actions. The Resolution. requested also "internationally guaranteed provisions to ensure the freedom of religion and conscience of its inhabitants, as well as permanent free and unhindered access to the Holy Places by faithful of all religions and nationalities."

Numerous UN General Assembly and Security Council resolutions were passed. Nevertheless, Israel continued its practices. The decision of the Israeli Government on June 21, 1998, to take steps to broaden the jurisdiction and boundaries of Jerusalem is another example.28 The cardinal principles of the UN resolutions on Jerusalem are:

1- the principle of "nationalities" and self-determination for the two peoples of Palestine;

2- the principle of "inadmissibility of the acquisition of territory by means of war;"

3- the principle that all Israeli legislative and administrative measures constitute a violation of the Fourth Geneva Convention, in general, and international jaw, in particular, and thus are null and void;

and 4- the demand that Israel must rescind all measures already taken and desist forthwith from taking any further measures.

IV- ACTUAL LEGAL STATUS OF JERUSALEM:

Since 1967 Jerusalem has been de facto annexed. The rest of the Occupied Territories remain under military rule. Formal annexation would have created a knotty problem: whether to grant full rights to the Palestinians who by the year 2010 may become majority, or to continue maintaining a system of apartheid. In both the West Bank and East Jerusalem, however, Israel refused to apply the law of belligerent occupation.

Israel is the de facto sovereign. However, Israel does not possess any legal title to the City, and its de facto sovereignty is not more than a mere administrative control by force of arms. None of the world's sovereign 194 States has recognized Israel's claimed legal title, and in fact none of them has accepted to locate their embassy in Jerusalem. The international community continues to reject all Israeli practices aiming at altering the character and status of the City. A single act of control is not enough to establish a transfer of title through prescription as Israel might hope. Not even continuous occupation and growing settling of the country would help Israel get the title.29

Furthermore, the Israeli assertion of sovereignty has been weakened when Israel and the PLO as the representative of the Palestinian people, signed the Declaration of Principles five years ago.30 By recognizing the Palestinian peoplehood, Israel undermined all of its claims. When Israel accepted to negotiate the issue of Jerusalem, it implicitly accepted the Palestinian claim on the City. A link between the Palestinian Jerusalemites and the rest of the Palestinian people has been agreed upon. They cannot anymore claim the City as terra nullius.

Under international law, the inhabitants of the City (Muslims, Jews and Christians) who were at the time when the Arab-Israeli conflict started, hold de jure sovereignty over the City. Those inhabitants were and still are integral part of the Palestinian people. It is thus the community of the citizens of Palestine who have the right to exercise sovereignty. The legal basis of their title is their time-immemorial occupation and use of the territory.

However, the crucial issue now is the legal implications resulting from the Israeli refusal to comply with international law: settlements, land confiscation, house demolition, closures,... these practices are altering the character of the City and its status. A fait accompli has been created irreversibly on the ground. It is true that ex injuria lex non oritur, but within the international community, major circumstances could paralyze such a principle.

CONCLUSION: PERSPECTIVES FOR A SOLUTION:

It is true that both Arabs and Israelis hope to prove the legal validity of their claims to Jerusalem, but it is also true that legal validity by itself has not led to a solution until now. It is important to reiterate that international law by itself will not be able to bring about a solution to the Palestinian problem. Nonetheless, we must bear in mind that international law is the only way to bring about a just and peaceful solution, that is to say, a durable solution.

Palestinians are the de jure sovereign, and Israelis are the de facto sovereign, and none is welling to relinquish its claim. Neither legal validity nor military power have been able to bring about a solution. The ideal way for meeting objectives is for the antagonists to sit down for serious negotiations. As the permanent status negotiations approach, the interested goverments find themselves confronted by a complex agenda:

1- the nationalist claims: two claimants (Israelis and Palestinians);

2- the religious rights: three claimants (Christians, Jews and Muslims of the World).

Obviously, the key features of any possible solution are following principles:

1- it must be pursued in the context of a global solution to the Palestine question;

2- any unilateral control over the city is totally unacceptable;

3- adequate recognition of the special rights of the three religious communities must. be guaranteed.

The deadlock in the peace process is leading to frustration and causing serious concern about the stability of the region. The hope is for a solution that satisfies both Israelis and Palestinians, on the one hand, as well as Jews, Christians and Muslims of the world, on the other hand. A more realistic approach to the problem by both parties is an absolute imperative. A lasting and durable peace in the Middle East depends on the outcome of these negotiations. Consequently, any zero-sum settlement must be today ruled out from the beginning, and compromise must be the rule of the game.

Notes

1. On this issue see generally 0. RULLI, Lo Stato d'Israele, 1998; S. MOTYER, Israel in the Plan of God, 1989; R. SUGIRTHARAJAH ed., Voices from the Margin: Interpreting the Bible in the Third World, 1991; T. WRIGHT, The Climax of the Covenant: Christ and the Law in Pauline Theology, 1991; C. CHAPMAN, Whose Promised Land.?, 1983; D. PAYNE, Kingdom of the LORD, 1981.

2. ICJ, "Western Sahara, Advisory Opinion," in Reports, 3 (1975), pp. 40-68.

3. For more information see generally H.CATTAN, Palestine and International Law, 'The Legal Aspects of the Arab-Israeli Conflict, 2nd ed., 1976; F. Khoury, The Arab-Israeli Dilemma, 1968.

4. See R.Y. JENNINGS, The Acquisition of Land in International Law, 1963

5. See A.'TOYNBEE, "The Middle East, Past and present," in Major Middle East Problems in International Law, E. KHADDURI ed., p.48.

6. See Progress Report of the UN Mediator on Palestine, GA Res. 186, UN GAOR, Supp. 2, 5, UN Doc. A/555 (1948); P. SCHULLER, "Jurisdiction on Palestine - An Analysis of the Conflicting Arab-Israeli Claims to Legal Title," in Vanderbilt J. Transnat'l L.(1978), p. 282.

7. On this issue see J. COLLINS, "Note on Middle East: Self-Determination in International Law: The Palestinians," in Case West. Res. Int'l L. Rev. 12 (Winter 1980), p.137.

8. Lord Balfour wrote in a Memorandum he sent to Lord Curzon, his successor at the Foreign Office: "In Palestine we do not propose to go through the form of consulting the wishes of the present inhabitants.... Zionism, be it right or wrong, good or bad, is rooted in age-long tradition, in present needs, in future hopes, of far profounder import than the desires and prejudices of the 700,000 Arabs who now inhabit that ancient land." On this issue see generally, W.T. MALLISON - S.V, MALLISON, The Palestine Problem: In International Law and World Order, 1986; K. STEIN, The Balfour Declaration, 1961; J. KIMCHE, The Great Powers and the Balfour Declaration, 1986; A. SCHOLCK, "Britain in Palestine: The Roots of the Balfour Declaration," in J. Pal. Stud. 22 (Autumn 1992), pp.39-56; HMSO, Documents on British Foreign Policy 1919- 1939, vol. VI, 1st ser.

9. See on this issue HASSAN BIN-TALAL, Palestinian Self-Determination: A Study of the West Bank and Gaza Strip, 1981; MALLISON- MALLISON, op. cit.; J. MOORE ed., The Arab-Israeli Conflict, 1974.

10. GA Res. 181(11), UN GAOR, Supp. 1, 131-150, UN Doc. A/519 (1947)

11. "Nothing shall be done which may prejudice the civil and religious rights of existing non-jewish communities in Palestine, or the rights and political status enjoyed by Jews in any other country."

12. Surprisingly, according to the UN 1947 land ownership statistics, the Palestine Partition Plan delegated to a land-holding minority (the Jews who owned 5.66% at the time) the majority of benefits (57% of the lands); and to the land-holding majority (the Arabs who owned at die time 47,77%) the minority of the benefits (43% of the land).

13. See e.g L. GROSS, "The United Nations and the Rule of Law," in Int'l Org. 19(1965), p.537; B. AKZIN, "The United Nations and Palestine," in Jew. Y.B. Int'l L. 1(1948), p. 871; C. EAGLETON, "Palestine and the Constitutional Law of the United Nations," in Am. J. Int'l L. 42 (1948), p. 379; J. HALDERMAN, "Some International Constitutitonal Aspects of the Palestine Case," in L &. Contem. Prob. 33 (1968), p 79

14. Sec e.g. E. BOVIS.,"Jerusalem and the Peace Process," in Isr. L. Rev. 28 (1994), p.412; M. BREGHER, Decisions in Israeli Foreign Policy, 1975, p.9; S. HALPERN, The Idea of the Jewish State, 2nd ed., 1966, p.385; Y. BLUM, "The Missing Reversioner: Reflections on the Status of Judea and Samaria," in Isr. L Rev. 3 (1968), 294; and S. SCHWEBEL, "What Weight to Conquest?," in Am J. Int'l L. 64 (1970), p.346.

15. See e.g. F'. WAART, Dynamics of Self-Determination, Protection of Peoples as a Human Right, 1994, p.62; S. TOLIN, "The Palestinian Refugees People and their Political, Military and Legal Status in the World Community," in N. Carol. Cent. L.J. 5 (Fall 1973), p.328; J. QUIGLEY, "Old Jerusalem: Whose to Govern?," in Denv. J.Int'l L. & Pol'y 20(1991), p 155; J. WHITBECK, "The Road to Peace Starts in Jerusalem: The 'Condominium Solution'," in Cath. U.L Rev. 45 (Spring 1996), p.787; J, MOORE; ed., "The Arab-Israeli Conflict, 1974.

16 "Nothing in this present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs. .."UN CHARTER, art. 51.

17 For different points of view see e.g. MCDOOGAL & FELICIANO, Law and Minimum World Public Order, 1961, 121-24; J. STONE, "Hopes and Loopholes in the 1974 Definition of Aggression," in Am. J. Int'l L. 71(1977), D. BOWETT, Self-Defense in International Law, 1985; C.L. BROWN-JOHN, "The Definition of Aggression: A Query," in Can. Y.B. Int'l L. 15 (1977), p. 301; B. FERENZ, "Defining Aggression: Where It Stands and Where It's Going," in Am. J. Int'l L. 66 (1972).p.491; 12 UN Conference on Int'l Organization, 1945, p.680; UN Pub. No. OPI/550 (July 1975).

18. See e.g. ROBERTS A., "Prolonged Military Occupation: The Israeli Occupied Territories Since 1967," in Am. I Int'l L 84(1990), p.54; H. DICHTER, "The Legal Status of Israel's Water Policy in the Occupied Territories," in Harv. Int'l L.J. 35 (1994), p.572; A. RUBINSTEIN, "The Changing Status of the 'Territories' (West Bank and Gaza): Prom Escrow to Legal Mongrel," in "Tel Aviv U. Stud. L. 8 (1988), p.63; B. WESTON, "The Relevance of International Law to Palestinian Rights in the West. Bank and Gaza: In Legal Defense of Intifada," in Harv". Int'l L. J. 32(1991), p. 145.

19. Y, BLUM, op, cit,

20. See A. ROBERTS, "Prolonged Military Occupation: The Israeli Occupied Territories Since 1967," in Am. J. Int'l L. 84 (1990), p.54.

21. Cfr. M. GRUHIN, "Jerusalem: Legal and Political Dimensions in a Search for Peace," in Case West. Res. J. Int'l L. 12(1980), p.169.

22. "Law and Administration Ordinance Law," Amendment No.11), in Laws of the State of Israel 21(1967), p.75

23. GA Res. 2253, 22 UN GAOR (ES-V) Supp. 1,4, UN Doc. A/6798.

24. SC Res. 242(1967), 22 UN SCOR, UN Doc. A/INF/22/Rev. 2.

25. SC Res. 476 (1980), 35 UN SCOR, 13, UN Doc. S/Res/476.

26. SC Res. 478(1980), 35 UN SCOR, 15, UN Doc. S/Res/478.

27. GA Res. 35/169E (XXXV), UN GAOR, Supp. 51, 27, UN Doc. A/35/51 (1980).

28. S/PRST/1998/21 of July 1998.

29. See e.g. ICJ, Advisory Opinion No 61, Western Sahara," in Reports, Oct.16, 1975, pp 12, 31-33; J. QLIGLEY, "Old Jerusalem," op. cit,, W. REISMAN, "Sovereignty and Human Rights in Contemporary International Law," in Am. J.Int'l L. 32(1993), p.1525; Note, "The Sovereignty of Jerusalem in International Law," in Colum. J. Transnat'l L. 20(1981), p.321; G. WATSON, "The Jerusalem Embassy Act of 1995," in Cath. U.L. Rev. 45 (Spring 1996), p.837; M. BERGER, "Jerusalem Gambit," in Nat'l Rev. (Oct.23, 1995), p.41.

30. ISR.-PLO, "Declaration of Principles on Interim Self-Government Arrangements of Sept.13,1993," in Int'l Leg. Mat. 32(1993), p.1525.