Talk:Status of Jerusalem/Archive 1

Archive 1

Archive 2

Recent change...

I ought to know better than to wade into Israeli-Palestinian Wikipedia conflict, but, recent change:

Most states and international organisations do not accept that Jerusalem is Israel's capital, nor Israel's annexation of East Jerusalem, nor its sovereignty over any part of the city.

I'm asking this genuinely: Is it really true that most states don't recgonize Israeli soveregnty over ANY part of the city? And how do you define "the city"? I thought that most countries and groups that recognize Israel (which includes most of the world's countries, plus the UN) recognize the land within the 1949 Green Line as Israeli, which includes West Jerusalem. I know that almost nobody (or possibly nobody period) recognizes Israeli rule over E. Jerusalem, but I though the West was generally accepted.

Of course, this does open the question of why states didn't recognize even West Jerusalem as the Israeli capital even before 1967. Is this a holdover from the city's proposed international status from the 1949 partition plan? --Jfruh (talk) 21:27, 13 September 2006 (UTC)

OK, the recent change made things even worse. It implies that the same people don't recognize (1) Jerusalem as capital, (2) E. Jerusalem as part of Israel, (3) any of Jerusalem as part of Israel. These are three different positions and lots of people hold (2), or (1) and (2), without holding (3). --Jfruh (talk) 12:36, 14 September 2006 (UTC)

Issues to include

I think the issue is very dense and complicated this is why the status of the city was left to final status negosiations between the PLO and the Israeli Government. I guess it is worth mentioning within the article that Tel Aviv is diplomatically accepted as the Capital of the Stat of Israel.

It is a fact that Jerusalem is under Israeli control but the Administration of some aspects of Education and Religion are under the "control" of Palestinians(living in Jerusalem). I think that the points mentioned below should be clearly represented.

• Jerusalem as capital of Israel including E. Jerusalem.
• East Jerusalem as future capital of an Independent Palestinian State.
• West Jerusalem as the Capital of Israel.
• Tel Aviv as Capital of Israel and Ramallah or Abu Dis as capital of Palestine, State of.

WP:ANI

Please see related discussion at

• Wikipedia:Administrators' noticeboard/IncidentArchive818#Edit warring and POV pushing Category:Jerusalem.--Timeshifter 06:34, 4 August 2007 (UTC)

Category:Disputed territories

Hertz1888 is tag-teaming with Tewfik to remove Category:Disputed territories from any location on this article page including as a "See also" link.

The last edit summary by Hertz1888 was "Relationship to this category is itself disputed. There is no consensus to keep reinserting it." See this diff: [1]

See WP:Vandalism#Types of vandalism and "frivolous" explanations. You guys need to discuss your deletions seriously. The relationship to this category is obvious. Much of the article discusses the disputed nature of Jerusalem. --Timeshifter 07:06, 16 August 2007 (UTC)

Status under Israeli law

Hi. Visiting here after the discussion at Template talk:Asian capitals. I'm under the impression that Jerusalem is the de jure capital of Israel according to Israeli law. So, I'll add a bullet point to the article, which can be discussed here. Thanks. HG | Talk 04:54, 23 November 2007 (UTC)

Found and added supporting data in the body of the article -- the 1980 Basic Law under Israeli law. Thanks. HG | Talk 05:15, 23 November 2007 (UTC)

"eternal, undivided capital"

I'm quite surpised that someone would remove 3 specific references to the common knowledge that Israel regards Jerusalem as its "eternal, undivided capital". Can anyone explain? Jayjg ^(talk) 22:17, 3 September 2006 (UTC)

I added references to the Jerusalem Law, which does not use this phrase - but you seem to have deleted my work.

Where does the phrase "eternal" come from?

Can it be correct? (Certainly not before 1948, I suspect)

Johnbibby 22:59, 4 September 2006 (UTC)

While the Jerusalem law does not use that phrase, it's a common one that many reliable sources use. Some of the sources were the links that you removed. Jayjg ^(talk) 04:27, 5 September 2006 (UTC)

As surprising, or perhaps not so given your (Jayjg) biased views on this topic, is the removal of this link from the Jerusalem page in the first paragraph. I had thought that wikipedia was supposed to be neutral, not a forum for your propaganda. How is explaining the different positions irrelevant? I agree with your first statement on this page - the links removed on this page should be here.Jebus1 13:25, 5 September 2006 (UTC)

Thanks Jebus for your comments.

Jayjg - I don't think you should be removing other people's comments (Jebus's) from the Talk page. That is deceptive and gives a misleading impression of what has been said.

Also, the reasons that you gave for reverting my edits ("September 2006 Jayjg (Talk | contribs) (restore sourced content, remove unsourced)" do not accurately reflect what you did.

You seem determed to keep re-stating this phrase "eternal, undivided capital" (on this pages and on others), as though it is God-given and correct. The official Israeli Law does not use this phrase, and most other states don't accept it either.

God may be all-powerful, but She does not control Wikipedia! (IMHO)

Also, IMHO, my edits are much clearer and simpler than yours. hence I will look at them again and may revert them back.

Johnbibby 14:10, 5 September 2006 (UTC)

Ah, one of the joys of making an edit that has to do with the Israeli-Palestinian conflict is to have that page in your watchlist and then watch the constant edits as the sparks fly. While I don't really want to get involved in the fight over content, and I suspect my position on the matter at hand is not the same as Jayjg, I feel honor-bound as a neutral party to point out that Jebus removed his own comment from the talk page. Go on, check the history and see for yourself. --Jfruh (talk) 14:27, 5 September 2006 (UTC)

My apologies - i did remove my comments as i had not read further down in the article. I still think that it should not say that it is in Israel though. Jebus1 15:50, 5 September 2006 (UTC)

Refer to comments made by Sharon and others, from Mark Regev.--Saxophonemn (talk) 01:51, 31 August 2008 (UTC)

International position

I realise this is a sensitive topic, but I would suggest rewriting this sentence at the beginning of the article.

Some states and international organisations, mostly supporting the Palestinian claims, do not accept Jerusalem as Israel's capital, nor Israel's annexation of East Jerusalem, nor its sovereignty over any part of the city.

This sentence looks POV to me. Isn't it the case that no country has, to quote, acceptet Israel's annexation of East Jerusalen? If that is the case, the sentence implies that every country is supporting the Palestinian claims. In addition, I find it strange to lump together not accepting Israel's annexation of East Jerusalem and not accepting Israel's sovereignty over any part of the city. As far as I know, a great many countries accept the latter but not the former. Perhaps this sentence could be split up into two or three groups and better written as to remove POV and enhance the quality of the article. JdeJ (talk)

That is why the sentence begins with "some" rather than many. The subject of this sentence is "some countries" and the predicate states what it is that they do not accept. Unless you are claiming that there are no, or is only one, country that rejects all three claims, then I fail to see your point: the sentence is accurate and complies with NPOV. At most, one might suggest adding after some, "but not all," but this is implied already, thus, really redundant and unnecessary. Slrubenstein | Talk 22:30, 14 September 2006 (UTC)

From my editorial point of view (separate from my political point of view, which I am doing my best to keep out here), the problem with this sentence is that there are three predicates but the sentence doesn't distinguish the varying categories within the "some", to wit:

1. Some do not recognize Jerusalem as Israel's capital

2. Some do not recognize Israel's annexation of East Jerusalem

3. Some do not recognize its sovereignty over any part of the city.

The three "somes" are not identical sets of international actors, but the sentence as currently written implies that they are one undifferenitated group. I would guess that the largest group recognizes Israel's sovreignty over West Jerusalem, but doesn't formally recognize Jerusalem as the Israeli capital, and don't recognize Israel's annexation of E. Jerusalem -- that is, they fall into groups (1) and (2) above but not (3). A smaller group, made up mostly of Arab states that don't recognize Israel at all, naturally doesn't recognize any Israeli claims on either half of the city of any kind, and thus falls into groups (1), (2), and (3). A rather small group recognizes Israel's sovereignty over W. Jerusalem and formally treats W. Jerusalem as the Israeli capital by locating their embassies there, but still doesn't recognize the annexation of E. Jerusalem -- thus falling into category (2) but not (1) or (3). I'm not aware of any state other than Israel that formally recognizes Israel's annexation of East Jerusalem (i.e. that doesn't fall into category (2) above) but I could be mistaken. --Jfruh (talk) 23:15, 14 September 2006 (UTC)

Thanks Jfruh! You summed it up very well. I see that the sentence has already been changed to a better version, but the way you put it here is very neutral and very accurate. Do you think it would make sense saying something like this

• Israel regards a united Jerusalem (including East Jerusalem) as its capital.
• Palestinian groups claim part or all of Jerusalem as a capital of a future Palestinian state, some UN member states(mostly some Arab states)support the Palestinian claims to all of Jerusalem.
• The majority of UN member states and most international organisations regard Western Jerusalem as part of Israel while not recognising the Israeli annexation of Eastern Jerusalem.

As an outsider, I won't interfere with the actual editing of this article. The above statement based on Jfuh's very good explanation would seem both neutral and correct to me. --JdeJ (talk) 14:54, 15 September 2006 (UTC)

one note:U.S congress has recognised East Jerusalem's annexation and the capital sense. Amoruso 15:11, 15 September 2006 (UTC)

The biggest ignored factor is that Israel is the only country in the world in which the capital city is disputed. -- Saxophonemn (talk) 01:54, 31 August 2008 (UTC)

There is no East/West

The East/West divide is made up, it's erroneous terminology from when the city was cut up for 19 years. --Saxophonemn (talk) 01:14, 2 September 2008 (UTC)

...according to the Israeli Jerusalem Law. That's one point of view in this, yes. The article is aware of it. --dab (𒁳) 19:38, 5 September 2008 (UTC)

Concurrent resolution 152

Has concurrent resolution 152 already been voted on by the senate? With which result? --JensMueller (talk) 21:03, 28 December 2008 (UTC)

Security Council decisions are binding

I've snipped this part off the end of the sentence about Security Council resolutions:

'though none of them have been Chapter VII (i.e. binding) resolutions.'

That contention has no legal merit:

'113. It has been contended that Article 25 of the Charter applies only to enforcement measures adopted under Chapter VI1 of the Charter. It is not possible to find in the Charter any support for this view. Article 25 is not confined to decisions in regard to enforcement action but applies to "the decisions of the Security Council" adopted in accordance with the Charter. Moreover, that Article is placed, not in Chapter VII, but immediately after Article 24 in that part of the Charter which deals with the functions and powers of the Security Council. If Article 25 had reference solely to decisions of the Security Council concerning enforcement action under Articles 41 and 42 of the Charter, that is to say, if it were only such decisions which had binding effect, then Article 25 would be superfluous, since this effect is secured by Articles 48 and 49 of the Charter.'

LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE OF SOUTH AFRICA IN NAMIBIA (SOUTH WEST AFRICA) NOTWITHSTANDING SECURITY COUNCIL RESOLUTION 276 (1970)

Article 25 is in Chapter V of the Charter and reads:

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. harlan (talk) 07:19, 14 January 2009 (UTC)

Query

Isn't the waqf in control over the al-aqsa area? I haven't seen this mentioned in the article. Jaakobou^{Chalk Talk} 00:41, 21 September 2009 (UTC)

US Position update?

The US Position section here appears to mainly involve congressional activities, which are described as not normative according to the US constitution. Do other editors agree that the section needs re-work to reflect what's the official US position on the subject? I found these two sources on it:

http://fpc.state.gov/documents/organization/103701.pdf Page 38: "The State Department does not recognize Jerusalem, Israel as a place of birth for passports because the U.S. government does not recognize all of Jerusalem as part of Israel."

Here is also a source with a collection on US positions over the years: http://www.fmep.org/reports/special-reports/special-report-on-israeli-settlement-in-the-occupied-territories-1/u.s.-policy-jerusalems-final-status-must-be-negotiated --Dailycare (talk) 17:01, 11 December 2009 (UTC)

Yes, the US position on this and related issues seem to quite often be inaccurate in all sorts of Wikipedia articles. Sean.hoyland - talk 17:05, 11 December 2009 (UTC)

That is because certain editors looked at one thing, the act of congress declaring Jerusalem the undivided capital of Jerusalem. At the time that this was passed the White House said that Congress does not have the authority to interfere in the executive's direction and application of foreign policy and that it would unconstitutionally interfere with the commander-in-chief's authority. The statement can be seen in full here. The relevant portion, saying that the declaration is advisory and not mandatory, is

Section 214, concerning Jerusalem, impermissibly interferes with the President's constitutional authority to conduct the Nation's foreign affairs and to supervise the unitary executive branch. Moreover, the purported direction in section 214 would, if construed as mandatory rather than advisory, impermissibly interfere with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states. U.S. policy regarding Jerusalem has not changed.

The United States has never recognized Israel's annexation of E. Jerusalem. The issue with place of birth is that for any US citizens who were born in Jerusalem the place of birth does not contain a country, only the city. nableezy - 17:14, 11 December 2009 (UTC)

Subsequently, & as of late 2007, the legal challenge to the State Dept. and it's Passport policy had been dismissed for lack of standing by a District Court judge.

ZIVOTOFSKY et al v. SECRETARY OF STATE Civil Action No. 2003-1921, (PDF), U.S. District Court, Judge Gladys Kessler, 19 September 2007.

... so section 214. is basically moot in the sense that it has not been codified into the law as well as found legally unsound it seems. The twenty-second 'Suspension of Limitations Under the Jerusalem Embassy Act' was just issued on December 3rd as well. George Orwell III (talk) 22:35, 11 December 2009 (UTC)

I edited the US position to reflect what appears to be the official US view according to the organs that define the official US view. I left in most of the previous material but removed some text that "died in committee" before even being passed by Congress, whereas even had it passed Congress, it apparently wouldn't have become the US view. --Dailycare (talk) 00:28, 13 December 2009 (UTC)

An elegant revision but after some more thinking and re-reading the District Court's 2007 ruling, it may be too broad and therefore a bit misleading now.

Section 214 of the FY 2003 Appropriations bill had 4 sub-sections, (a) thru (d). Sub-sections (b) and (c) were the of unremarkable type commonly found within legislation dealing with annual funding of executive agencies within a Federal budget. Both sub-sections use language that makes whatever conditions or limits put in place to receive funding applicable only to that Financial year (None of the funds authorized to be appropriated by this Act…) and unless the following financial year's appropriations bill specifically amends or extends Sec. 214(b) and Sec. 214(c), the conditions or limits no longer apply or expire. This leaves sub-sections (a) and (d) which are also unremarkable as far as changing laws go but nevertheless are not tied to funding but are attempts to shift or modify policy at the time by making changes in the standing law just the same.

Sub-section (a) seems to be a re-affirmation of what U.S. policy has been since at least moving the embassy was first declared back in the 1995 Embassy Act. Back then, the will of Congress to shift policy is clear but also set a trigger (the long expired 1999 deadline) along with the ability for the President to suspend the conditions (options; final say) without any further Congressional input as long as he was forced to (re)determine and (re)report the justification why (i.e. not helpful to US National Security and/or Foreign Policy). Congress crosses the line by meddling in Foreign Policy BUT worded and back-doored a way where they manage to stay out of legal challenges, veto threats and the like. Section 214 (a) does not set any new triggers, reinstate another deadline or even attempt to make any changes to the reporting framework but simply "urges the President" (advisory language) to change the current status-quo and follow through on the Embassy Act on his own (its toothless basically). However much the President dislikes Congress dictating Foreign Policy here, he also knows 214(a) is advisory at best and can go back to telling Congress "not yet" every six months like the 22 times it's happened so far.

The Constitutional question revolves around 214(d) ONLY. Attempting to change long standing Passport policy (set by the State Department → an Executive managed agency → President is it's manager) is obviously more of a symbolic victory than it would be one that physically starts moving the embassy -- but its enough to fuel the fires of the conflict and put political heat on the President. The problem here is they didn't use language that was "advisory" or left the final decision up to the President at all. There is no "…if This happens - you can do A, B or C... if That happens - you can do X, Y or Z…" language that gives Congress the CYA legal justification in Section 214(d) like the 1995 law did. They apparently tried, half-heartedly, to dictate a change ('the Secretary [of State] shall…) in foreign policy; an area understood to be Constitutionally the President's historically.

So finally & in short, saying the President "dismisses", "disregards" or "played decider" with the declared U.S. policy and/or the "sense or will of Congress" out of hand (not to mention negating anybody who wanted their passport to read a certain way) as this article does now becomes somewhat misleading if not lacking objectivity. I think the references to the FY 2003 Authorization similar to above, the legal challenge it created and the eventual dismissal by the district courts is needed here or simply better if included than excluded IMHO.

edit

Forgot the stuff that died in committee → The 2 proposals mentioned or listed were here before I stopped by so I can't speak to what the eventual point was suppose to be. I only re-checked the links and closed the line of reasoning by updating their status (failed). Totally agree they did not serve the article on Positions here regardless of status at all. If anything, those 2 proposals (one bill that was nearly word for word as Sec. 214 had and one non-binding resolution) plus the 3 or 4 other failed bills not yet mentioned are better suited for the "Developments" section on the Jerusalem Embassy Act page. They are kind of developments since… & not changes in positions since… the JE Act was passed technically anyway.

So, in fact, the third option to Include or Exclude (as in my ramblings above) would be to leave the President, Congress & the Constitution generally out of it (or "nuetral"?) here, move all this junk over to the JE Act's page and expand on it in Developments if somebody wants to develop a point over there instead; maybe just point to whatever that may be in passing w/Wikilinks from here too. George Orwell III (talk) 06:28, 13 December 2009 (UTC)

Hi, I think that the legal challenge to the passport issue may not be notable enough for inclusion, but that isn't a strong opinion. I believe that our Israeli friends would like to continue to see the Jerusalem embassy act mentioned on this page, although it's for them to say so if this is the case. Why don't you make an edit to the text, and we'll see what it looks like? --Dailycare (talk) 11:20, 13 December 2009 (UTC)

Material removed from UN subsection

This material doesn't relate to what the UN view is. --Dailycare (talk) 16:33, 21 December 2009 (UTC)

The Netherlands maintains an office in Jerusalem serving mainly Israeli citizens. Other foreign governments base Consulate General offices in Jerusalem, including Greece, the United Kingdom and the United States. These consular offices primarily serve the Palestinian population of the West Bank, including East Jerusalem, and their Consuls General do not submit letters of credentials to the Israeli President or foreign ministry, but instead, deliver them to the administrative governor of Jerusalem. 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.

I have replaced the removed information. It was sourced and relevant. If you feel it belongs in a different section, that's a different story. Please don't simply erase sourced information from an article in the future. Breein1007 (talk) 20:11, 22 December 2009 (UTC)

Hi, the section is titled "United Nations position". The material does not relate to any UN position. If you feel it's relevant to the article at large, please feel free to start a new subsection on it. Just because it's sourced doesn't mean it belongs in the UN section, or any section for that matter. In fact the material doesn't appear to relate to any "positions on Jerusalem" at all. FWIW, I did not erase it but moved it to this page. --Dailycare (talk) 22:03, 22 December 2009 (UTC)

No, sorry. It's not my job to move the information. I am not your secretary. I don't agree that the information is misplaced. The Netherlands is a UN member nation and the information addresses their reaction to the UN position on the issue. I feel the information is perfect where it sits. If you have a problem with its placement, as I mentioned above, feel free to move it to what you feel is a more appropriate section within the article. If you do this, I am assuming you will also move the rest of the information from the section that addresses individual nations and their reactions to the UN stance. Thanks, Breein1007 (talk) 23:47, 22 December 2009 (UTC)

(outdent) That section is about the Consular Corp of the Corpus Separatum. They don't recognize any sovereignty over the city. I provided sources and clarified that point. harlan (talk) 16:19, 27 December 2009 (UTC)

References

Disruptive edits

NNMNG your claim that Shertok and Eban's declarations and acceptance cannot make a resolution binding is irrelevant and incorrect.

Article 28 of the Mandate required religious rights and claims in connection with the Holy Sites and their management to be placed under perpetual guarantee by whatever means necessary. League of Nations Mandates were simply resolutions of the Council of the League of Nations. The only time the PCIJ had an opportunity to rule on the binding strength of a Council resolution, it avoided the issue altogether and applied the contract law theory of "acceptance" instead. See the discussion at mid-page regarding the Railway Traffic case. The ICJ settled the matter in the South West Africa case and said Mandates were mixed legal instruments that were part constitutional convention and part treaty. UN General Assembly resolutions regarding trusteeships are also treaties. They were legally binding on the dependent territories and people they governed.

Article 18 of the Charter of the United Nations says the General Assembly can make decisions. The article cites the ICJ Certain Expenses case, which determined that the General Assembly could make dispositive decisions under the terms of Article 18 of the Charter. The Sloan article from the British Yearbook of International Law cites Article 18 of the Charter, and a statement made by Moshe Shertok saying that resolution 181 was binding.

Judge Elias said that it was clear that the recommendations contained in General Assembly resolutions regarding the operation of trusteeships and other matters mentioned in Arrticle 18(2) become binding decisions once they are adopted by two-thirds of the members.

Oral and written declarations have been used to grant territory and create new states since the 19th century. They usually contain acknowledgments of international obligations and safeguards for religious groups and minorities. The paragraphs of the ICJ Judgment cited in the article said that Article 13 of Mandate and an entire Chapter of the UN Partition plan were examples of specific rights that were placed under international guarantees. Mr Eban was required to acknowledge the undertakings contained in resolution 181(II) and 194(III) with regard to religious and minority rights and the internationalization of Jerusalem during the Ad Hoc Committee hearings on Israel's application for membership in the UN. His declarations and explanations were noted in text of General Assembly resolution 273 (III), 11 May 1949, and UN documents A/AC.24/SR.45, 48, 50 and 51.

The international courts consider declarations made before the organs of international organizations to be tantamount to a treaty. See International Human Rights in Context, Henry J. Steiner, Philip Alston, Ryan Goodman, Oxford University Press US, 2008, ISBN 019927942X, page 100. The UN Secretariat reported that the General Assembly had established a formal plan of protection as an integral part of UN GAR 181(II) the 'Plan For The Future Government of Palestine'. It was cataloged during a review of Minority Rights Treaties conducted in 1950: see UN Document E/CN.4/367, 7 April 1950. UN GAR 181(II) and many other binding trusteeship agreements in the form of resolutions are listed in the Table of Treaties, starting at Page xxxviii, of Self-determination and National Minorities, Oxford Monographs in International Law, Thomas D. Musgrave, Oxford University Press, 1997, ISBN 0198298986.

Within hours of Israel's admission to the UN, the Arab states and Israel signed the Lausanne Protocol which established the partition map from the November 29, 1947 UN resolution as the basis for negotiations. See Neil Caplan, The Lausanne Conference 1949, Tel Aviv University, 1993, ISBN: 9652240133, pages 51-59 harlan (talk) 19:12, 27 December 2009 (UTC)

The UN charter does not give the General Assembly the power to make binding resolutions of such nature. The GA can only make recommendations. See [2].

When you say the UNGA "decided" something, you're being misleading. They recommended. The most precise would be "passed a resolution". What happened afterward doesn't change that. Yes, the Lusanne Protocol established the partition map as the basis for negotiations. That doesn't make UNGA resolutions binding. No More Mr Nice Guy (talk) 20:03, 27 December 2009 (UTC)

{outdent) You are engaged in WP:Synth and WP:OR. The page you linked to doesn't mention the Corpus Separatum, trusteeships, Jerusalem, or resolution 181(II).

The text of Article 18(2) and 18(3) of the Charter says the General Assembly can make decisions.[3] The first stage in interpreting a particular clause of a treaty is to examine its ordinary meaning in isolation from the whole document. This is, in itself, not conclusive, but, as stated by the International Court of Justice, "If the relevant words in their natural and ordinary meaning make sense in their context, that is the end of the matter." see Marjorie Whiteman, Digest of International Law. (Washington: Government Printing Office, 1970) vol. 14, p. 371.

The ICJ Judgment in the Certain Expenses Case, and Judge Elias each said the General Assembly can adopt binding or dispositive decisions under the terms of article 18. The Sloan article that I cited said the same thing (as early as 1948) and mentioned resolution 181. Sloan cited Shertok's statement. Shertok underscored the fact that Palestine was NOT a sovereign member state, but rather a dependent territory that was already subject to a League of Nations Trust. He said that only the United Nations as a whole was competent to determine the future of the territory and it's decision therefore had a binding force.

The General Assembly wasn't acting in its own behalf. Article 28 of the Mandate required the rights, claims, and Holy Places to be safeguarded in perpetuity, under international guarantee. The ICJ addressed the objection you raised in the 1971 Namibia Case:

"In a further objection to General Assembly resolution 2145 (XXI) it is contended that it made pronouncements which the Assembly, not being a judicial organ, and not having previously referred the matter to any such organ, was not competent to make."

"To deny to a political organ of the United Nations which is a successor of the League in this respect the right to act, on the argument that it lacks competence to render what is described as a judicial decision, would not only be inconsistent but would amount to a complete denial of the remedies available against fundamental breaches of an international undertaking." The Court explained "the General Assembly declared that the Mandate having been terminated "South Africa has no other right to administer the Territory". This is not a finding on facts, but the formulation of a legal situation. For it would not be correct to assume that, because the General Assembly is in principle vested with recommendatory powers, it is debarred from adopting, in specific cases within the framework of its competence, resolutions which make determinations or have operative design." See Nambia (S.W. Africa) (Advisory Opinion) ICJ Reports 1971 pages 49-50 para 102-105.

Great Britain arranged to turn over the mandate to a subsidiary organ of the General Assembly [4] James Crawford discussed resolution 181 and the ICJ cases. He said "Three views of the validity and effect of the partition resolution are possible. It might have been ultra vires; it might have been only a recommendation; or it might have constituted a valid and effective disposition of Palestine, at least to the extent of authorizing those concerned to implement it. The view that the resolution was ultra vires derives from a general implication as to the dispositive powers of the General Assembly. However, even earlier practice suggested that United Nations organs can make binding dispositions of territory in appropriate circumstances, pursuant to a delegation of power from states concerned or otherwise. This view has been twice reaffirmed, in the context of the Mandate system, by the International Court in the Status Opinion and the Namibia Opinion. There is therefore no basis for treating the resolution as ultra vires. Indeed, in one respect at least it is clear that the resolution had authoritative legal effect. A Mandatory cannot by its own unilateral act resile from its responsibilities. Since the demise of the League, any alteration in the basis for administration of a mandate has been held to require the approval of the General Assembly. Britain relinquished the Mandate at midnight on 14-15 May 1948, but its action was only legally effective by virtue of the Assembly's approval in Resolution 181(II). See Guy S. Goodwin-Gill, and Stefan Talmon, eds., The Reality of International Law: Essays in Honour of Ian Brownlie (Oxford: Clarendon Press, 1999) page 106. harlan (talk) 23:26, 27 December 2009 (UTC)

I'm engaging in SYNTH and OR by linking to a un.org page titled "Functions and Powers of the General Assembly" that explains in plain English what the functions and powers of the General Assembly are? Are you for real? No More Mr Nice Guy (talk) 23:45, 27 December 2009 (UTC)

Yes you are engaged in WP:OR and WP:Synth. All you've done is link to a page which says "the Assembly is empowered to make only non-binding recommendations to States". It does mention Jerusalem, or claim that it is a State. I've cited several sources, including the representative of the Jewish Agency, who said that the disposition of territories under mandate was an international matter that did not fall within the sovereign jurisdiction of any State. Those sources also say that the General Assembly can make binding decisions regarding non-self governing territories, because they fall within its specific area of competence according to the terms of Chapter XII of the UN Charter "The International Trusteeship System":

Article 85 [5]

1. The functions of the United Nations with regard to trusteeship agreements for all areas not designated as strategic, including the approval of the terms of the trusteeship agreements and of their alteration or amendment, shall be exercised by the General Assembly.

2. The Trusteeship Council, operating under the authority of the General Assembly shall assist the General Assembly in carrying out these functions.

The article cites the U.S. State Department Digest of International Law, "Corpus Separatum, §33 Jerusalem" which says the United Nations General Assembly passed three resolutions (Resolutions 181 (II), November 29, 1947; 194 (III), December 11, 1948; and 303 (IV), December 9, 1949) providing for and relating to full territorial internationalization of Jerusalem as a Corpus Separatum, and that it is not considered to be part of the territory of any State. harlan (talk) 12:35, 28 December 2009 (UTC)

Of course Jerusalem is not a state. It's not recommendations about states, it's recommendations to states.

For example Aside from budgetary matters, resolutions are non-binding on member states.

And this. No More Mr Nice Guy (talk) 14:02, 28 December 2009 (UTC)

The rules that the US Courts use are found under §102 Sources of International Law, h. Binding resolutions of international organizations and g. The United Nations Charter; and §103 Evidence of International Law, c. Declaratory resolutions of international organizations, in the Restatement (Third) of the Foreign Relations Law of the United States.

"Law making resolutions" that, under the constitution of an organization are legally binding on its members are sources of international law which are distinguished from declaratory resolutions. The ICJ judgments say that article 18 decisions can be dispositive and have operative effects. Nothing you've cited alters that fact.

For example, the Charter says that the General Assembly can approve, amend, or modify trusteeship agreements. Those contain prescriptive decisions in the form of territorial constitutions and fundamental laws. UN resolution 181(II) prescribed fundamental laws and constitutional provisions for the new states that the UN Secretariat cataloged during a review of Post-World II treaties contained in E/CN.4/367, 7 April 1950. The ICJ judgment in the Wall case cited that same chapter of the resolution and said it provided specific legally guaranteed rights (see para 129). Michael Brandon explained that all trusteeship agreements were registered as ex officio treaties by the Secretariat. [6] §102 g. explains that according to the UN Charter, conflicts between a member's obligations under the Charter and obligations under other agreements are to be resolved in favor of the Charter obligation. So, a resolution that terminated the League of Nations Palestine Mandate or established a trusteeship under direct UN administration in a mandate would ipso jure terminate conflicting treaty agreements, like the British-American Palestine Mandate Convention of 1924.

The 1983 Duke University journal article that you cited above said some courts, including the United States Court of Appeals for the 2nd Circuit, had started giving General Assembly resolutions the same weight as full fledged sources of international law. One of those cases was General Assembly resolution 2145 (XXI) of 27 October 1966 regarding South Africa's mandate for Namibia. It affirmed the General Assembly's right to take appropriate action in the matter, including the right to revert to itself the administration of the Mandated territory. It said the General Assembly "Decides" that the Mandate is terminated; that Namibia is to come under the direct responsibility of the United Nations; and that South Africa has no other right to administer the territory. The Court of Appeals, the ICJ, and the UN Security Council each concluded that South Africa was in breach of its international obligations under the terms of that General Assembly resolution. That case is cited in Restatement (Third) of the Foreign Relations Law of the United States, §202 Reporters Note 5. harlan (talk) 01:47, 29 December 2009 (UTC)

1. 181 specifically says

Recommends to the United Kingdom, as the mandatory Power for Palestine, and to all other Members of the United Nations the adoption and implementation, with regard to the future Government of Palestine, of the Plan of Partition with Economic Union set out below;
Requests that the Security Council take the necessary measures as provided for in the plan for its implementation;

The resolution itself "recommends" not "decides" that nations adopt this plan.

2. Your extrapolation from the Namibia case is more of the usual WP:OR. No More Mr Nice Guy (talk) 12:01, 29 December 2009 (UTC)

I've cited Judge Elias explanation which said that recommendations on important questions become binding once the draft resolution is adopted by two-thirds of the members. The fact that the resolution had already gone into effect is illustrated by the creation of a new subsidiary organ of the United Nations, the Palestine Commission. It was charged with responsibility for implementing the plan during the transition period: "The period between the adoption by the General Assembly of its recommendation on the question of Palestine and the establishment of the independence of the Arab and Jewish States shall be a transitional period." I noted above that Great Britain formally recognized the United Nations Palestine Commission as the successor government of Palestine.

Ernest Gross wrote an advisory opinion for the State Department which explained that the Security Council was not empowered to alter the November 29, 1947 resolution of the General Assembly, while that resolution stood. He noted that the groups in Palestine were authorized, and the Palestine Commission was required, to take the steps contemplated in the resolution for implementing the partition plan. He also noted that Great Britain had stated its acceptance of the plan and was acquiescing in its implementation. See Foreign relations of the United States, 1948. The Near East, South Asia, and Africa: Volume V, Part 2, Page 748.

At the 262nd meeting of the Security Council held on 5 March 1948, Rabbi Silver rejected a trusteeship proposal. He stated that the implementation of the partition plan had already begun, because Great Britain had accepted the plan and was dismantling its mandate. He claimed that the process was therefore legally binding and irreversible. See UN doc. S/PV.262

In any event, Mr Eban acknowledged the undertakings regarding the internationalization of Jerusalem contained in resolution 181(II) and 194(III) during the Ad Hoc Committee hearings on Israel's application for membership in the UN. His declarations and explanations were noted in text of General Assembly resolution 273 (III), 11 May 1949, and UN documents A/AC.24/SR.45, 48, 50 and 51. Israel and the Arab States subsequently signed the Lausanne Protocol, which adopted the General Assembly's partition map.

Judge Higgins cited the decision in the Namibia case as part of her own opinion in the Consequences of the Wall judgment. I already mentioned James Crawford's discussion of resolution 181 and the ICJ cases. Crawford, Hall, and Whiteman all said that the mandatory power could not unilateraly alter the status of a mandate without the consent of the General Assembly. The fact that the Second Circuit Court of Appeals said General Assembly resolutions can be sources of international law is mentioned in the Duke law journal article that you cited, and that fact is confirmed in the Foreign Relations Law of the United States. There is no WP:OR involved, because those facts do not originate with me or Wikipedia. harlan (talk) 17:53, 29 December 2009 (UTC)

The resolution specifically says it is a recommendation. Repeatedly. The fact that someone decided to follow some of these recommendations is not proof they are binding. Do I really need to dig up published opinions that UNGA resolutions are non-biding or do you acknowledge that these views exist? No More Mr Nice Guy (talk) 22:07, 29 December 2009 (UTC)

Pacta sunt servanda

This is no recommendation:

"The provisions of chapters 1 and 2 of the declaration shall be under the guarantee of the United Nations, and no modifications shall be made in them without the assent of the General Assembly of the United Nations. Any Member of the United Nations shall have the right to bring to the attention of the General Assembly any infraction or danger of infraction of any of these stipulations, and the General Assembly may thereupon make such recommendations as it may deem proper in the circumstances.

Any dispute relating to the application or interpretation of this declaration shall be referred, at the request of either party, to the International Court of Justice, unless the parties agree to another mode of settlement.

The resolution required Israel and Palestine to acknowledge in unilateral declarations that rights of the religious groups, women, and minorities were under the protection of the United Nations. Those guarantees included personal and property rights, freedom of movement, and access to Holy Sites in Jerusalem. The resolution required Israel to embody those rights from the declaration in its constitutional law. See Part I. - Future Constitution and Government of Palestine, B. STEPS PREPARATORY TO INDEPENDENCE and C. DECLARATION. Chapter 4. Resolution 181(II) was specifically cited in the question of law that was addressed to the ICJ by the General Assembly. The Court noted that the State of Israel declared its independence on the strength of the resolution, and cited Chapter 2 on religious rights as a source of human rights law. It said that the guarantees regarding freedom of access and movement to the Holy Sites in Jerusalem had legal consequences with regard to the status of the territories and authorized states to use whatever legal means necessary to bring Israel into compliance. That decision is already noted in the article.

The draft resolution of the Ad Hoc Committee A/516, 25 November 1947 said it was a recommendation. It urged all of the members and Great Britain to adopt and implement the plan. But the provisions of the plan itself say the recommendations were compulsory after they were adopted by the General Assembly. The text repeatedly says that the Palestine Commission, the Mandatory administration, and the provisional governments shall act in compliance with the recommendations of the General Assembly during the transition period. The term shall is used prescriptively almost 200 times in the resolution. In any event the new UN subsidiary organ was created and the Secretariat was given binding budgetary authority to spend millions of dollars, and to reimburse certain expenses of Great Britain and the Palestine Commission.

Athanasia Spiliopoulou Akermark said the UN Secretariat conducted a review of all minority rights treaties in 1950 and that they were listed in UN Document E/CN.4/367, 7 April 1950. Akermark says that the Chairman-Rapporteur of the UN Working Group on Minorities (Mr. Asbjørn Eide, 1996), advised that no competent UN organ had made any decision which would extinguish the obligations under those instruments. He added that it was doubtful whether that could even be done by the United Nations. See the discussion in Justifications of Minority Protection in International Law, Chapter 7 Minority Protections in the United Nations, 7.1 The Validity of Undertakings Concerning Minorities After The Second World War, page 119-122.

Several published sources say that Abba Eban was required to furnish proof of acceptance. Mr. Eban's explanations and Israel's undertakings were noted in the text of A/RES/273 (III), 11 May 1949. A similar Declaration of the State of Palestine, supplied by the Palestine National Council, was accepted as being in line with General Assembly resolution 181(II). That was noted in resolution 43/177, 15 December 1988.

Abba Eban made a declaration before the Ad Hoc committee that the rights stipulated in Part 1, C. Declaration, chapters 1 and 2 of UN resolution 181(II) had been constitutionally embodied as the fundamental law of the state of Israel as required by the resolution. He assured the committee that Israel would not invoke Article 2, paragraph 7 of the Charter, regarding its domestic jurisdiction. The instruments that he cited during the hearings were the Declaration of the Establishment of the State of Israel, and various cables and letters of confirmation addressed to the Secretary General. See The Palestine Question, Henry Cattan, pages 86-87 and the verbatim records of the hearings cited in General Assembly resolution 273 (III), 11 May 1949: UN documents A/AC.24/SR.45, 48, 50 and 51. The record of the 51st session says the Cuban delegate was finally satisfied with Israel's reply and noted that:

The representative of Israel had given the assurance that, if that country were admitted as a Member, such matters as the settlement of frontiers, the internationalization of Jerusalem and the Arab refugee problem, would not be regarded as within its domestic jurisdiction and protected from intervention under the terms of article 2, paragraph 7 of the UN Charter.

During US Senate Judiciary Committee hearings on the The Colonization Of The West Bank Territories By Israel in 1977. The legal status of the partition plan and the minority rights provisions were addressed by Dr W. Thomas Mallison. He stated that territory was only allocated by the UN on condition that certain duties imposed upon each state to be established in Palestine were carried out. He said the legal obligations contained in section 10(d) of part I B Constitution were particularly important and required each of the states to be set up in Palestine to have a constitution which guaranteed all persons equal and nondiscriminatory rights in civil, political, economic, and religious matters and the enjoyment of human rights and fundamental freedoms, including freedom of religion, language, speech and publication, education, assembly, and association. Dr. Mallison stated "In most civilized legal systems it is recognized that legal rights may only be exercised conditioned upon compliance with legal duties. The refusal of the State of Israel to comply with the nondiscriminatory requirements of the Palestine partition resolution, its main claim to title, puts in serious jeopardy its claim to legal title to the limited territory allocated to it by the resolution." harlan (talk) 21:00, 30 December 2009 (UTC)

How does any of that amount to the resolution being biding? Search the document for "recommend". You'll see it refers to itself repeatedly as recommendations.

I'd point out that the General Assembly didn't actually bother to enforce free access to holy places, but that's besides the point. No More Mr Nice Guy (talk) 21:46, 30 December 2009 (UTC)

The Principal Allied Powers drafted the terms of the mandate in the form of a League of Nations resolution that was not valid until it was adopted by the members of the Council. Then it was considered a binding legal instrument. It was their intent that the rights in the mandate be safeguarded under perpetual international guarantee. The article quotes reliable published sources which explain that the recommendations contained in draft General Assembly resolutions regarding dependent territories become binding once they are adopted by two-thirds of the members of the General Assembly. Search the document for the word "shall" and you'll find nearly two hundred instances, including ones which require all of the parties to either comply, or not interfere with, the implementation of the General Assembly's recommendations. There are also a number of sources cited, including the ICJ, which say the resolution is either a treaty or legal instrument. They say it is a source of human rights law that effects the status of the territories, including Jerusalem.

The ICJ has general and specific jurisdiction to settle disputes regarding interpretation of the resolution, and there are several sources which indicate that none of the member states recognize Jerusalem as being part of Israel's territory. There certainly are published sources that disagree, but those belong in the subsection on the Israeli position. The claim that the UN considers the resolution non-binding is contradicted by ICJ, the Chairman-Rapporteur of the UN Working Group on Minorities, and etc. harlan (talk) 23:00, 30 December 2009 (UTC)

The UN has a charter. The idea that General Assembly resolutions are not binding is not an "Israeli position", it's a well known and well published interpretation of the UN Charter that has nothing specific to do with Israel, and I'm pretty sure you know that. In fact, I would be very much surprised if you're not aware of such published opinions (again, not dealing specifically with Israel or made by Israelis) but chose not to present them here. That is called POV pushing. No More Mr Nice Guy (talk) 00:23, 31 December 2009 (UTC)

(outdent) We already discussed all that. The Charter specifically states that "Decisions of the General Assembly on important questions shall be made by a two-thirds majority of the members present and voting."

The International Court of Justice has the general and specific jurisdiction to settle disputes regarding interpretation of the Charter. James Crawford served as a Special Rapporteur to the UN International Law Commission. He said "Three views of the validity and effect of the partition resolution are possible. It might have been ultra vires; it might have been only a recommendation; or it might have constituted a valid and effective disposition of Palestine, at least to the extent of authorizing those concerned to implement it. The view that the resolution was ultra vires derives from a general implication as to the dispositive powers of the General Assembly. However, even earlier practice suggested that United Nations organs can make binding dispositions of territory in appropriate circumstances, pursuant to a delegation of power from states concerned or otherwise. This view has been twice reaffirmed, in the context of the Mandate system, by the International Court of Justice." I'm not pushing a POV, I'm writing about one. 163 countries adopted a resolution this year which said:

• the so-called “Basic Law” on Jerusalem and the proclamation of Jerusalem as the capital of Israel are null and void,
• the international community, through the United Nations, has a legitimate interest in the question of the City of Jerusalem and the protection of the unique spiritual, religious and cultural dimensions of the city,
• any actions taken by Israel to impose its laws, jurisdiction and administration on Jerusalem are illegal and therefore null and void and have no validity whatsoever. harlan (talk) 03:00, 31 December 2009 (UTC)

Yeah, the GA regularly makes all kinds of resolutions. One of the reasons they get an unusual amount of votes for these Jerusalem ones is because they are non-binding and nobody cares. Well, that and small island nations selling their votes. But I digress.

I will post some resources about UNGA resolutions being non-binding when I have a bit of time, since you are intent on pretending the view you like is the only one. No More Mr Nice Guy (talk) 12:21, 31 December 2009 (UTC)

I'm not pretending about anything. I've been pointing out that the matter is res judicata within the UN. I'm perfectly aware that the General Assembly could adopt a legally binding statute for a trust territory, or a non-binding recommendation about the importance of good health. The same thing could be said about the US Congress and the District of Colombia. General Assembly resolutions have to be examined on a case by case basis to determine if the Assembly is acting within an area of its competence under the Charter. The member states delegated the General Assembly specific powers to fulfill the organizations' functions of supervising or directly administering non-self governing territories. The Court and the Security Council have both determined that the decisions of the General Assembly in those cases did create legal responsibilities and obligations for the United Nations, and they also effected the legal status of those territories.

This resolution dealt with an existing legal requirement in a Mandate instrument to establish permanent safeguards, under international guarantee, for the rights secured by Articles 13 and 14 of the Mandate itself. In this case the ICJ said "The responsibility of the United Nations in this matter also has its origin in the Mandate and the Partition Resolution concerning Palestine (see paragraphs 70 and 71 below). This responsibility has been described by the General Assembly as "a permanent responsibility towards the question of Palestine until the question is resolved in all its aspects in a satisfactory manner in accordance with international legitimacy" (General Assembly resolution 57/107 of 3 December 2002). The Court noted that the rights secured under the Treaty of Berlin had been safeguarded as "existing rights" in Article 13 of the Mandate and by a Chapter in the Partition Plan. The intent of Article 28 of the Mandate was to establish perpetual safeguards for the rights secured by Article 13 and 14 of the Mandate. Several published sources have been cited which demonstrate that resolution 181(II) is a valid treaty instrument that created responsibilities and obligations for the United Nations in that regard. The Security Council deplored Israel's non-compliance: "Strongly deplores the continued refusal of Israel, the occupying Power, to comply with the relevant resolutions of the Security Council and the General Assembly. Reiterates that all measures taken by Israel which have altered the geographic, demographic and historical character and status of the Holy City of Jerusalem are null and void".

The Court had ruled in two earlier cases that the Assembly could make dispositive decisions in circumstances involving responsibilities that were imposed by mandates. For example, in the Namibia case the Security Council recognized that the United Nations had direct responsibility for Namibia, following the adoption of General Assembly resolution 2145 (XXI) of 27 October 1966; and reaffirmed that the Territory of Namibia is the direct responsibility of the United Nations and that the responsibility included the obligation to support and promote the rights of the people of Namibia in accordance with General Assembly resolution 1514 (XV). harlan (talk) 17:13, 31 December 2009 (UTC)

Here's Hertz, Lauterpacht and Stone saying that 181 is not binding without the agreement of the parties. They invoke pacta sunt servanda, like you named this section. Ironic. No More Mr Nice Guy (talk) 21:09, 31 December 2009 (UTC)

The question of law that was addressed to the court in the Wall Case specifically cited 181(II) as a "relevant resolution" and asked "What are the legal consequences considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions?" The majority of the Court came to the conclusion that the legal responsibility of the United Nations had its origin in the Partition Resolution. The panel of judges came to a very different conclusion regarding the consequences than the one advanced by Hertz, Lauterpacht and Stone. harlan (talk) 21:29, 31 December 2009 (UTC)

If you provide a secondary source saying that the ICJ thinks 181 is binding, we can include that in the article too.

One thing is clear, the resolution refers to itself as a recommendation. No More Mr Nice Guy (talk) 21:58, 31 December 2009 (UTC)

I've already cited a host of secondary sources, including Moshe Shertok, Sloan, et al who said the resolution was binding. You just provided another one. Hertz is complaining that the ICJ assumed that 181(II) legally amended and superseded the terms of the mandate. Mr. Hertz has no locus standi with the United Nations organization or the member states. He is commenting on a majority opinion regarding the state of the law on the issue. The members of the General Assembly subsequently endorsed that ICJ judgment by a vote of 150 in favor, 6 against and 10 abstentions. See United Nations General Assembly Resolution ES-10, July 20, 2004. That is the official position of the United Nations with respect to the applicable law. The opposing views are certainly appropriate in the subsection of the article on the Israeli position, but they are not the position of the UN and the majority of its member states. Not allowing one view to "speak for itself", or refactoring its "world-view" into the words of its detractors violates NPOV policy. harlan (talk) 22:37, 31 December 2009 (UTC)

There are plenty of published sources that say UNGA resolutions in general, and 181 in particular are non-binding. That you happen to think they're wrong is of little relevance here. This is not an "Israeli position". The fact you keep referring to it as such just continues to expose your POV pushing. No More Mr Nice Guy (talk) 22:49, 31 December 2009 (UTC)

(outdent) You keep beating that dead horse about POV pushing. I'm writing about the POV of the Principal Allied Powers and the United Nations regarding the resolutions of the Council and the General Assembly. There are not plenty of published sources which say the United Nations thinks UNGA resolution 181(II) is non-binding, or that the validity of mandates or trusteeship agreements required the consent of non-self governing peoples. The modern-day Security Council affirms the inalienable right of people to freedom and independence, but they do so on the basis of the General Assembly's recognition of that right in resolution 1514 (XV) of 14 December 1960. See the Security Council's resolution 301 regarding Namibia.

Secondary sources report that the Secretariat said the resolution was a treaty and that the Chairman-Rapporteur of the UN Working Group on Minorities (Mr. Asbjørn Eide, 1996), advised that no competent UN organ had made any decision which would extinguish the obligations contained in it. He added that it was doubtful whether that could even be done by the United Nations. James Crawford served as a Special Rapporteur to the UN International Law Commission and said that "even earlier practice suggested that United Nations organs can make binding dispositions of territory in appropriate circumstances, pursuant to a delegation of power from states concerned or otherwise." and that "This view has been twice reaffirmed, in the context of the Mandate system, by the International Court of Justice." Seconday sources say that member states of the United Nations do not recognize that Jerusalem is part of the soveriegn territory of any state. harlan (talk) 01:25, 1 January 2010 (UTC)

Secondary sources say that UNGA resolutions are non-binding. You don't get to chose which opinion is more "right". No More Mr Nice Guy (talk) 13:40, 1 January 2010 (UTC)

This is an article about various positions on Jerusalem. Editors can insist that positions be attributed to their sources. The United Nations is recognized as an "international person". That means it is a subject of international law with the independent capacity to take legal action and seek legal remedies on its own behalf. It can adopt positions that are binding on the Organization regardless of the positions held by the member states. See for example International law: peace, war and neutrality‎, by Nirmal Roy, page 189 and the ICJ opinion in the "Reparations" case [7] The sources I've cited are the official UN statements and publications which say the resolution is a binding international agreement that is considered a source of legal authority. Those statements are backed up by secondary sources that speak about the position of the United Nations and its organs with regard to the relevant terms of the Mandate, UNGA 181(II), UNGA 194(III), UNGA 303(IV), UNSC 476, and UNSC 478.

Elihu Lauterpact edited and annotated a volume of his father's papers in 1978 which said the General Assembly did have the authority to make the decision to partition Palestine. Like Judge Elias he noted that pursuant to Article 18 a simple majority was sufficient, unless the General Assembly decided to apply to Palestine the Trusteeship system under a trusteeship agreement by a two thirds vote. He noted that Palestine was not a sovereign or independent state and that the administering power had handed over the matter of the future political and legal status to the General Assembly for action. Lauterpacht said the resolution provided legal authority for any action of the United Nations organization as a whole. He said "There would thus appear to be no force to the argument that the Partition of Palestine is outside the powers of effective decision on the part of the United Nations for the reason that recommendations are not binding." He noted that the recommendation was not only a valid source of legal authority for action by the United Nations, and its members, but also that it is more generally a binding pronouncement by the United Nations: "For this is not the case of an ordinary recommendation within the province of the Organization. There is conferred in the case upon the United Nations a power of determination, in what is in effect partly an arbitral and partly a legislative capacity, of a concrete issue. A higher degree of force and finality must attach to a determination of this nature." He also said the General Assembly was entitled "to decree the contested legal issues involved in partition" without asking for an Opinion of the International Court of Justice. See Hersh Lauterpacht's opinion International Law: Being the Collected Papers of Hersch Lauterpacht, Hersch Lauterpacht, and the editors' note by Elihu Lauterpacht, Cambridge University, 1970, ISBN 0521212073, pages 504-513.

Hertz has no legal training and does not present the United Nations position (in fact he misrepresents it). The notion that resolution 181 "had no legal ramifications because its validity as a potentially legal and binding document was never consummated" is his personal opinion. It takes no cognizance of the fact the Mandate required the establishment of a perpetual regime of safeguards under international guarantee, or that the United Nations was the guarantor of the protections under a treaty. He references an old pamphlet Elihu Lauterpacht wrote for a Zionist organization back in the 1960s. The PLO subsequently provided the required declaration in 1988 acknowledging resolution 181(II). The General Assembly recognized that declaration was in-line with resolution 181(II), and in keeping with the inalienable rights of the Palestinian people. Judge Higgins said they were entitled to their territory and their state in the Wall case judgment. There is no evidence Elihu Lauterpacht disputes any of that. Even if he did, it would not alter the United Nations position that Jerusalem is not yet part of any state and that it should be internationalized. harlan (talk) 21:52, 1 January 2010 (UTC)

Again, your opinion on who is right and who is wrong is irrelevant.

here's what Elihu Lauterpacht said about "decisions of the General Assembly": "But, in general, they are in the nature of recommendations, and it is in the nature of recommendations that, although on proper occasions they provide a legal authorization for Members determined to act upon them individually or collectively, they do not create a legal obligation to comply with them". He also specifically says that recommendations in the sphere of trusteeship are not binding and there is no legal obligation to put them into effect. That's further down the page.

I suggest you read the whole thing, particularly since 181 specifically refers to itself as a recommendation. Repeatedly.

I don't have access to the Lauterpacht book you were quoting from, and you never post links, so I'll just assume that what you quote was in fact Hersch's opinion and not Elihu's. No More Mr Nice Guy (talk) 22:36, 1 January 2010 (UTC)

It isn't a matter of me deciding who is right and who is wrong. The source you are citing says Article 18 decisions can be legally binding. You are engaging in WP:OR again since this material isn't about 181 or Jerusalem.

I've read it several times before BTW. It is the separate opinion of Judge Hersh Lauterpacht in the 1955 ICJ South West Africa "Voting Procedure" case.[8] That is not something that Elihu wrote, and it isn't about resolution 181. It is about a petition procedure that was created by the Assembly of the League of Nations which had no basis in the Covenant or Mandate instruments.

I cited an editors' note by Elihu Lauterpacht, and a paper by Hersh Lauterpacht that actually were written about the topic of resolution 181. That book said the General Assembly had the power to partition Palestine. What you've cited says Article 18 decisions refer to resolutions, and that the term resolution refers to two distinct matters. It says "They cover occasionally decisions which have a definite legally binding effect either in relation to the members of the United Nations, its organs, or both, or the United Nations as a whole." In the other article that I cited, Lautherpacht specifically stated that resolution 181 was binding on the United Nations as a whole, so there is no contradiction. I cited a State Department advisory opinion written by Leo Gross in an earlier post which said the organs of the United Nations were not empowered to alter the decision and that they were required to implement the plan.

Resolution 181 established the United Nations Organization itself as the "Administering Authority" of the Corpus Separatum pursuant to the terms of article 81 of the Charter. Lauterpacht's opinion in the South West Africa judgment contains a discussion of the case of a State "Administering Authority" of a trusteeship, not the case of the United Nations itself administering one. In any event, the Security Council and ICJ both decided that the General Assembly did have the right to terminate a mandate and revert responsibility for administration of the territory to the United Nations in the 1970 Namibia Case. There is no question that the General Assembly had the same power under the terms of the Charter to with regard to a trusteeship. The United Nations Organization has subsequently assumed responsibility for local government in Kosovo and East Timor so there can be no objection that such a thing is beyond the powers of the UN. harlan (talk) 01:30, 2 January 2010 (UTC) harlan (talk) 01:30, 2 January 2010 (UTC)

States are NOT divided over the illegality of the Basic Law Jerusalem

The lede is giving WP:UNDUE Weight to Hirsch, Lapidoth, et al who say that states are of a divided opinion. The article used to specifically cite UNGA resolution 63/30 (passed 163 for, 6 against in January 2009) which declared that the so-called “Basic Law” on Jerusalem and the proclamation of Jerusalem as the capital of Israel are null and void. harlan (talk) 22:54, 19 February 2010 (UTC)

There is no undue weight here. Either there is divided opinion or there isn't. I think you are mixing up two distinct things. There is divided opinion regarding the legal status in international law. States are however united that the Israeli Basic Law on Jerusalem is null and void. This is indeed mentioned in the seconf para. The sentance "Many do not recognize it as a city that is properly Israel's." is adds unneeded repetition and confusion to the matter as the lead goes on the state: "The chief dispute revolves around Israel’s control of East Jerusalem, while broader agreement exists regarding Israeli presence in West Jerusalem, though not with regard to sovereignty", meaning that the city is not properly Israel's. Chesdovi (talk) 19:24, 21 February 2010 (UTC)

Nothing in the Hirsch, Lapidoth, et al material actually says that, so it does not add any repetition. The term sovereignty has no universally agreed upon meaning and the broad (armistice) agreement regarding "Israeli presence" in West Jerusalem is merely implied. If you think they say the same thing, then you shouldn't mind moving Lapidoth et al back into the background subsection and restoring the quote from Sharkansky about the cease-fire lines. The lede is supposed to summarize the article's contents anyway. harlan (talk) 11:47, 22 February 2010 (UTC)

What is the UN's postition?

It would seem that the UN contradicts itself. It calls Gilo a settlement, built on Palestinian territory, yet still views that area as part of the corpus separatum? Chesdovi (talk) 10:34, 28 April 2010 (UTC)

Isn't that the same position as everyone else, US, EU, Russia etc etc, two state solution, split capital leading to corpus separatum ? Sean.hoyland - talk 11:01, 28 April 2010 (UTC)

Until a 2 state solution is found, it would seem that the UN currently views Jerusalem and its environs as a neutral zone under international control. Yet it calls an area within that zone "Palestinian territory"? Chesdovi (talk) 11:07, 28 April 2010 (UTC)

United Nations Security Council Resolution 465 Sean.hoyland - talk 11:26, 28 April 2010 (UTC)

So does the language of that resolution insinuate that area taken by Israel in 1967 are indeed "Arab territories", in which case the corpus separatum proposal is obsolete? Or does the UN's specific mention of the additional words "including Jerusalem" intend to separate Jerusalem and its environs as being part of the corpus separatum and not Arab territory? Chesdovi (talk) 11:48, 28 April 2010 (UTC)

(outdent) Neither the Israelis nor the Palestinians are considered occupying powers in areas allocated to them by the UN plan of partition. However, the Arab territory that Israel holds in excess of the land allocated under the UN plan is still legally occupied territory. As for Jerusalem, the 1949 Armistice agreements only changed the state of belligerent occupation to an armistice occupation. After the Armistices were signed, Israeli Ambassador Abba Eban explained that "Israel holds no territory wrongfully, since her occupation of the areas now held has been sanctioned by the Armistice agreements, as has the occupation of the territory in Palestine now held by the Arab states." see "Effect on Armistice Agreements", FRUS Volume VI 1949, 1149

The UN Mediator accepted the armistice agreement on behalf of the UN. It granted a joint Israeli-Jordanian committee "exclusive competence" to develop any future plans and agreements (article VIII). It also instructed UNTSO to enforce whatever plans and agreements the Israeli-Jordanian committee provided (article IX). The Security Council adopted that arrangement under the terms of article 40 of the Charter (Chapter VII), which means it is legally binding and that Arab occupation of East Jerusalem is sanctioned. See UN Security Council resolution 73. The resolution and Armistice agreement established "permanent lines of demarcation" that cannot be unilaterally altered. The Security Council continued to endorse a negotiated settlement and GA Resolution 194(III), which calls for internationalization, every year until 1967.

The Security Council has never revoked SC Res 73. The ICJ Advisory Opinion made constant references to the establishment of settlements and construction taking place beyond "the Green Line". That means: West Jerusalem is under Armistice occupation; East Jerusalem is under belligerent occupation; and that the Basic Law Jerusalem is null and void on both sides of the Armistice demarcation line. The ICJ noted that plans jointly developed under the Armistice regarding freedom of movement to Holy Places on both sides of the Jerusalem Green Line were still valid international agreements. See para 129 on page 111. [9] The Court noted that those rights were preserved under the Israeli-Jordanian Peace Treaty. Article 3 of the treaty also stipulated that the boundary established between Jordan and Israel, was without prejudice to the status of any territories that came under Israeli military government control in 1967. harlan (talk) 13:55, 28 April 2010 (UTC)

I am still coinfused. You state: "West Jerusalem is under Armistice occupation; East Jerusalem is under belligerent occupation" But if we take the CS plan as still binding, both E & W Jerusalem and its environs would seem to be under...what? Chesdovi (talk) 14:06, 28 April 2010 (UTC)

The Southwest Africa/Namibia cases established that territories under mandate had an international status that could not be altered without the consent of the General Assembly. The General Assembly and Security Council called for the internationalization of Jerusalem long after the Armistice agreements were adopted, and have declared any subsequent attempt to unilaterally alter the city's status illegal. Jerusalem is under a de jure regime of armistice occupation, pending a final settlement that is acceptable to all of the parties involved, and East Jerusalem is under a de facto regime of belligerent occupation. UN Resolution 242 required an end to all claims of belligerency. On several occasions, the General Assembly has demanded that Israel immediately withdraw unconditionally from the territories it occupied in 1967. It has also declared that the United Nations has "a permanent responsibility towards the question of Palestine until the question is resolved in all its aspects in a satisfactory manner in accordance with international legitimacy."

The Charter distributes powers and functions among the UN organs. In some areas the Security Council gets to make legally binding decisions, while in others it can merely make recommendations. For example, it can only make recommendations regarding the membership of states, but it is the General Assembly that has the power to make decisions, e.g. the General Assembly terminated Taiwan's membership.

In the Certain Expenses case, France and the Soviet Union argued that in matters related to international peace and security the General Assembly could only discuss and make recommendations. The Court said they were mistaken: Thus while it is the Security Council which, exclusively, may order coercive action, the functions and powers conferred by the Charter on the General Assembly are not confined to discussion, consideration, the initiation of studies and the making of recommendations; they are not merely hortatory. Article 18 deals with "decisions" of the General Assembly "on important questions". These "decisions" do indeed include certain recommendations, but others have dispositive force and effect." See page 28 [10]

Article 80 of the UN Charter stipulates that a trusteeship agreement can alter the status of territories under mandate. Article 85 provides that the functions of the United Nations with regard to trusteeship agreements for all areas not designated as strategic, including the approval of the terms of the trusteeship agreements and of their alteration or amendment, shall be exercised by the General Assembly. Article 18 of Charter says that the General Assembly has the power to make decisions on questions relating to the operation of the trusteeship system. UN GA Resolution 181(II) was adopted by two-thirds of the members present, and it contained a decision regarding the trusteeship of Jerusalem under a special regime: "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 Trusteeship Council shall be designated to discharge the responsibilities of the Administering Authority on behalf of the United Nations." That decision was reaffirmed in UN GA Resolutions 194(III) and 303(IV) and the Trusteeship Council did adopt a Statute for the city. harlan (talk) 15:41, 28 April 2010 (UTC)

Is the so called "armistice occupation" an "illegal occupation"? Chesdovi (talk) 16:20, 28 April 2010 (UTC)

I would think that the "armistice occupation" would not be viewed as "illegal occupation" as since the "Arab occupation of East Jerusalem is sanctioned", the Israeli occupation of West Jerusalem is sanctioned. Only the Israeli "belligerent occupation" of EJ's Jordainian borders is termed "illegal". By extension, is "Arab occupation of the West Bank" also "sanctioned"? Therefore territory Israel gained outside the UN proposal is also "sanctioned"? If so, the CS plan is surely not stil in force? Right? Chesdovi (talk) 17:27, 28 April 2010 (UTC)

No, the armistice occupation is de jure, i.e. legal, just as Eban said. But it did not settle the final political or international status of the territory beyond the UN boundaries. The PLO/PNA have requested a settlement based upon the 67 borders "with agreed swaps", which presumably might include some of the territory Israel gained outside the UN proposal. Olmert suggested some land swaps for example, but I haven't seen them mapped-out. There are some legal issues, like the Armistice provisions regarding Qiryat Gat, [11] that still apply under the terms of armistice. The CS decision was held in abeyance, but it has not been withdrawn. It really amounts to the General Assembly having its say in approving the final settlement. The old statute never really entered into force. The partition plan called for a plebiscite to decide the status of the CS. Since that time the General Assembly has declared the granting of independence to colonial peoples and shutdown the Trusteeship Council. The UN has setup a few municipal governments under direct supervision of the Organization since then - in Kosoovo and East Timor, but I suspect the CS would never amount to anything more than international oversight of the local municipal governments management of the Holy Places and antiquities. harlan (talk) 18:44, 28 April 2010 (UTC)

The context of this discussion appears to be the discussion on Talk:Jerusalem where we're discussing whether to put a in the infobox, which now has only and . My view there was that since the UN and EU (and the countries that send diplomats to the Consular Corps of the Corpus Separatum) subscribe to the view that the legal status of the city is Corpus Separatum, the UN flag is in order there. This is doubly so since otherwise the flags would imply that the Israeli or Palestinian claims to the city would be uncontested. here is a report published by the UN that has this interesting conclusion. Of course, the idea is that this is provisional until the parties agree on a "final status" for the city.

"Conclusions")

(b) The resolutions of the General Assembly and Security Council in relation to Jerusalem following the occupation of the entire city of Jerusalem by Israel in June 1967 also maintained this original principle of internationalization. Further, they required Israel to withdraw from territories occupied during the conflict, and to rescind all measures taken, as well as to refrain from taking further measures, to alter the status of Jerusalem. Thus, it would appear that the United Nations since 1947 has maintained the principle that the legal status of Jerusalem is that of a corpus separatum under an international regime. :::--Dailycare (talk) 19:32, 28 April 2010 (UTC)

I agree that the international status of the territory cannot be altered without the consent of the General Assembly, and that states have an obligation not to recognize any unilateral attempts in that regard. The "Consular Corps of the Separatum" was not established under the auspices of the Trusteeship Council. For example, the US Jerusalem Consulate is a legation that includes the OPT in its area of service, not just Jerusalem. It formerly provided service to the West Bank of Jordan. Many legal scholars have pointed out those actions are actually incompatible with non-recognition. See for example, Israel and the West Bank, By Thomas S. Kuttner, Israel Yearbook on Human Rights 1977, Volume 7; Volume 1977, edited by Yoram Dinstein, Kluwer Law International, 1989, ISBN 0-7923-0357-1, [12] harlan (talk) 15:04, 30 April 2010 (UTC)

United States position

The article says "The United States views as desirable the establishing of an international regime for the city" # ^ See General Assembly, A/L.523/Rev.1, 4 July 1967

This language comes from a United Nations resolution from 1967. The foreign policy of the United States is expressed by the State Department. I don't believe that the current U.S. policy can be derived from one sentence in a 43 year old U.N. resolution without any confirming statement of agreement in the past 43 years by the State Department. The State Department has consistently used language such as that the parties must decide Jerusalem's future under negotiation, but I can not find any State Department statement regarding its support for an international regime for the city. Nightkey (talk) 15:09, 9 July 2010 (UTC)

That the US favours a negotiated outcome is mentioned in the relevant section of the article. --Dailycare (talk) 15:29, 9 July 2010 (UTC)

My question is: Is there any evidence that it is the *current* view of the United States that it is desirable to establish an international regime (such as the United Nations controlling the city)?74.215.112.220 (talk) 18:22, 19 July 2010 (UTC)

The United States voted in favor of the internationalization of Jerusalem as part of the partition plan. That measure involved a trusteeship decision which was approved by two-thirds of the members present. It has been reaffirmed on several occasions, and has never been withdrawn. The legal advisor to the US State Department explained that the Security Council cannot alter that decision of the General Assembly, but that it can propose its own solutions - a negotiated settlement between the parties involved. Neither solution has ever been implemented. In the meantime, the US has advised that it has a binding undertaking to give due recognition to the formal acts of the General Assembly and the Trusteeship Council relating to Jerusalem. It has said that the city should remain united, that neither side can unilaterally alter its legal status, and that the Holy Places in the Jerusalem area are of international interest to a degree which transcends ordinary considerations of sovereignty. It has never made any subsequent announcements that its position on any of those issues has changed. This is not a forum for general discussions or the place to request that other editors conduct original research for you. harlan (talk) 07:09, 20 July 2010 (UTC)

Views

Only view not presented as from that part was PNA, and its view is the international view, but I have changed it now.--Supreme Deliciousness (talk) 10:53, 7 October 2010 (UTC)

thanks for fixing that. It still left the Israeli position as the only one described as a "belief", but I've fixed that. HupHollandHup (talk) 13:59, 7 October 2010 (UTC)

Content and purpose of Other links?

The current contents of Other Links appear to link to opinion pieces or think-tank white papers. If these are pertinent, why aren't they summarized in the body of the article with the links as references? If they're not pertinent, I'd recommend removing them. Jojalozzo 01:34, 20 December 2010 (UTC)

1950 Jordanian annexation of East Jerusalem

Currently, the Background section states:

In 1950 Jordan annexed eastern Jerusalem, a move recognised only by the United Kingdom and Pakistan.

The last part of the statement is contradicted by a UK government document which outlines the UK position on Jerusalem. It says:

The UK position was formally expressed in April 1950, when HMG extended simultaneous de jure recognition to both Jordan and Israel. However, the statement withheld recognition of the sovereignty of either Jordan or Israel over the sectors of the city which each then held, within the area of the corpus separatum as stipulated in UN General Assembly Resolution 303 (IV) of 1949. In the British view, no such recognition was possible before a final determination of the status of this area, although HMG did recognise that both Jordan and Israel exercised ‘de facto authority’ over those parts of the city and area which each held.

    ←   ZScarpia   21:29, 18 May 2011 (UTC)

Although many books and articles cite a Pakistani recognition, none refer back to an official Pakistani position and no such recognition seems to have been extended at any time. A Jordanian request was extended during a state visit to Pakistan and was considered. No official Pakistani document published between 1950 and 1988, when Jordan revoked its annexation decree seems to exist anywhere.

Obama statements

I heard that Obama had said Jerusalem was (should be?) the capital of Israel in 2008, but also that he (or his campaign) criticized Romney for making (essentially?) the same statement.

Does this represent a change of views? Can we say so?

If calling it a change of views would be WP:OR, would it be okay to say that such and such a conservative called it a change of views?

I'm asking this before editing the article, or even bothering to put any quotes and references on the talk page. I don't want to waste my editing time if what I'm planning to write would be considered against policy by any "consensus" here. --Uncle Ed (talk) 17:12, 4 August 2012 (UTC)

Hi, the US position is already laid out in detail in the article, expanding it further to include views of individual candidates may not be warranted, unless sources are found to establish this is relevant. I vaguely recall (I may mis-recall) that I've seen sources stating that US presidential candidates often discuss moving the American embassy to Jerusalem (which is stricly speaking not the same thing as recognizing the city as the capital), but when elected choose to keep the embassy where it is. Something like this could be more descriptive of the US position than what individual candidates say. Cheers, --Dailycare (talk) 19:50, 4 August 2012 (UTC)

Background / starting point

Can anyone justify why the Background section should begin with 1517? It links to the timeline which begins millennia before... at least in terms of the conflict, in order for readers to understand the Israeli policy and belief, it seems important for this article to begin at 1000 BCE. Otherwise, the Israeli position doesn't fully make sense.Narc (talk) 05:29, 5 October 2012 (UTC)

Yeah that is odd, but consider WP:BOLD as well. If you make a good edit that adds useful referenced info here, that should suffice. --Jethro B 05:55, 5 October 2012 (UTC)

Jewish majority

The article currently says that "from 1517 onwards Jerusalem was part of the Ottoman Empire and since 1830, it has had a Jewish majority." While this is technically correct, it should be made clear that Jerusalem has had a Jewish majority for over three thousand years and was the capital of the Kingdom of Israel as well as the both kingdoms of Judah and the Roman province of Judea. Arabs are merely recent settlers in Israel and have no real history there. — Preceding unsigned comment added by S8jd9mm (talk • contribs) 06:22, 3 December 2012 (UTC)

There are a number of flaws in your argument beside the obvious one about the length of time there has been a Jewish majority in Jerusalem. Being Arab is a cultural identity. Principally, it identifies those who speak varieties of Arabic as a native language. Versions of Arabic were being spoken in the Levant before Arabic-speaking people from the south invaded, including in the area to the east of Palestine, which the Romans called Arabia, and in border areas of Palestine itself, where Judeo-Arabaic was spoken. Cultural transfers can occur without native peoples being expelled (an example being the forced or encouraged conversion to Judaism of the Aramaic speakers living in the Galilee area). Therefore, there's a good chance that a Christian or Muslim Arab in the modern Levant may have as great an ancestral connection to ancient Israelis and Judeans as a recent Jewish immigrant.     ←   ZScarpia   21:15, 3 December 2012 (UTC)

The sentence is a bit misleading. Most people would take "majority" to mean more than half, but it is clear from the source that we are talking about a relative majority (i.e. more Jews than any other single ethnic group). Ideally, a source should be found for the correct "majority" date, or otherwise the sentence should be reworded. Formerip (talk) 22:11, 3 December 2012 (UTC)

Either solution sounds good, though, if a date from which an absolute majority existed can be sourced, perhaps that should be added in addition to the date when there was a relative Jewish majority instead of replacing it?     ←   ZScarpia   11:47, 4 December 2012 (UTC)

Yes, that's probably best of all. I will have a look later and see if I can find reliable information about it. Formerip (talk) 12:15, 4 December 2012 (UTC)

OK, I made the edit. "1830" has become "1840s" because I've looked at different sources, some of which give Muslim relative majorities during the 1830s, but by the 1840s they all agree. Also, all the different figures I have seen after 1887 show a Jewish absolute majority.

I'd also sort of agree with the OP that there's no real reason we should consider the city's demographic history to have started only on the day the number of Jews was greater than the number of Muslims by one, but I'd suggest that we can only reasonably go back as far as recorded history allows (i.e. not further than the Roman era), and we would need to be brief, because that is not the topic of the article. Formerip (talk) 15:39, 4 December 2012 (UTC)