Monday, May 25, 2009

  • Monday, May 25, 2009
  • Elder of Ziyon
This is an excerpt from a pamphlet that was written by Julius Stone, a hugely influential legal scholar and prolific author of standard texts in the field, along with comments added by one of his students after Stone's death:


The Partition Plan of 1947 envisaged an international Jerusalem, separated from both Israel and the then proposed Palestinian State. During the 1948 war, East Jerusalem (which includes the holy places of Judaism, Christianity and Islam in the old city) came into Jordanian hands; and Jordan claimed sovereignty. In 1967, after Jordan launched an attack on West Jerusalem, the whole of Jerusalem came under Israeli rule; and Israel claimed sovereignty over a united Jerusalem. Professor Stone examines the legal principles which apply, and considers the analysis of Professor Elihu Lauterpacht, the distinguished editor of the authoritative “Oppenheim’s International Law”.

The agreements implementing the Oslo Accords provide that Jerusalem is one of the issues to be considered in the permanent status negotiations, and failure to reach agreement on the sharing of administration in Jerusalem was one of the reasons for the failure to conclude a permanent status agreement at Camp David II and at Taba in 2000. In the absence of such agreement, however, sovereignty over Jerusalem under international law remains as described by Stone.

The Effect of the Partition Plan

Elihu Lauterpacht concludes, correctly that the 1947 partition resolution had no legislative character to vest territorial rights in either Jews or Arabs. Any binding force of it would have had to arise from the principle pacta sunt servanda, that is, from the agreement of the parties concerned to the proposed plan. Such an agreement, however, was frustrated ab initio by the Arab rejection, a rejection underlined by armed invasion of Palestine by the forces of Egypt, Iraq, Lebanon, Syria and Saudi Arabia, timed for the British withdrawal on May 14, 1948, and aimed at destroying Israel and at ending even the merely hortatory value of the plan…

The State of Israel is thus not legally derived from the partition plan, but rests (as do most other states in the world) on assertion of independence by its people and government, on the vindication of that independence by arms against assault by other states, and on the establishment of orderly government within territory under its stable control. At most, as Israel's Declaration of Independence expressed it, the General Assembly resolution was a recognition of the natural and historic right of the Jewish people in Palestine. The immediate recognition of Israel by the United States and other states was in no way predicated on its creation by the partition resolution, nor was its admission in 1949 to membership in the United Nations… As a mere resolution of the General Assembly, Resolution 181(11) lacked binding force ab initio. It would have acquired the force under the principle pacta sunt servanda if the parties at variance had accepted it. While the state of Israel did for her part express willingness to accept it, the other states concerned both rejected it and took up arms unlawfully against it. The Partition Resolution thus never became operative either in law or in fact, either as to the proposed Jerusalem corpus separatum or other territorial dispositions in Palestine.

The Corpus Separatum Concept

We venture to agree with the results of the careful examination of the corpus separatum proposal by E. Lauterpacht in his monograph Jerusalem and the Holy Places:

“(1) During the critical period of the changeover of power in Palestine from British to Israeli and Arab hands, the UN did nothing effectively to implement the idea of the internationalization of Jerusalem.

(2) In the five years 1948-1952 inclusive, the UN sought to develop the concept as a theoretical exercise in the face of a gradual realization that it was acceptable neither to Israel nor to Jordan and could never be enforced. Eventually the idea was allowed quietly to drop.

(3) In the meantime, both Israel and Jordan demonstrated that each was capable of ensuring the security of the Holy Places and maintaining access to and free worship at them - with the exception, on the part of Jordan, that the Jews were not allowed access to Jewish Holy places in the area of Jordanian control.

(4) The UN by its concern with the idea of territorial internationalization, as demonstrated from 1952 to the present date (1968) effectively acquiesced in the demise of the concept. The event of 1967 and 1968 have not led to its revival.

(5) Nonetheless there began to emerge, as long ago as 1950, the idea of functional internationalization of the Holy Places in contradistinction to the territorial internationalization of Jerusalem. This means that there should be an element of international government of the City, but only a measure of international interest in and concern with the Holy Places. This idea has been propounded by Israel and has been said to be acceptable to her. Jordan has not subscribed to it.”

Even if no notion of a corpus separatum had ever floated on the international seas, serious questions about the legal status of Jerusalem would have arisen after the 1967 War. Did it have the status of territory that came under belligerent occupation in the course of active hostilities, for which international law prescribes a detailed regime of powers granted to the occupying power or withheld it from in the interest of the ousted reversionary sovereign? Or was this status qualified in Israel's favour by virtue of the fact that the ousted power, in this case, Jordan, itself had occupied the city in the course of an unlawful aggression and therefore could not, under principle of ex iniuria non oritur ius, be regarded as an ousted reversioner? Or was Jerusalem, as we will see that a distinguished authority thought at the time, in the legal status of res nullius modo juridico? That is, was it a territory to which by reason of the copies of international instruments, and their lacunae, together with the above vice in the Jordanian title, no other state than Israel could have sovereign title? The consequence of this could be to make the legal status of Jerusalem that of subjection to Israel sovereignty.

Acquisition of Sovereignty

This analysis, based on the sovereignty vacuum, affords a common legal frame for the legal positions of both West and East Jerusalem after both the 1948-49 and the 1967 wars. In 1967, Israel's entry into Jerusalem was by way lawful self-defence, confirmed in the Security Council and General Assembly by the defeat of Soviet and Arab-sponsored resolutions demanding her withdrawal…

Lauterpacht has offered a cogent legal analysis leading to the conclusion that sovereignty over Jerusalem has already vested in Israel. His view is that when the partition proposals were immediately rejected and aborted by Arab armed aggression, those proposals could not, both because of their inherent nature and because of the terms in which they were framed, operate as an effective legal re-disposition of the sovereign title. They might (he thinks) have been transformed by agreement of the parties concerned into a consensual root of title, but this never happened. And he points out that the idea that some kind of title remained in the United Nations is quite at odds, both with the absence of any evidence of vesting, and with complete United Nations silence on this aspect of the matter from 1950 to 1967?…

In these circumstances, that writer is led to the view that there was, following the British withdrawal and the abortion of the partition proposals, a lapse or vacancy or vacuum of sovereignty. In this situation of sovereignty vacuum, he thinks, sovereignty could be forthwith acquired by any state that was in a position to assert effective and stable control without resort to unlawful means. On the merely political and commonsense level, there is also ground for greater tolerance towards Israel's position, not only because of the historic centrality of Jerusalem to Judaism for 3,000 years, but also because in modern times Jews have always exceeded Arabs in Jerusalem. In 1844 there were 7,000 Jews to 5,000 Moslems; in 1910, 47,000 Jews to 9,800 Moslems; in 1931, 51,222 Jews to 19,894 Moslems; in 1948, 100,000 Jews to 40,000 Moslems, and in 1967 200,000 Jews to 54,902 Moslems.

For those who disagree with this analysis, the question remains - who has a better legal right to Jerusalem than Israel? It cannot be Jordan (who gave up its own legal claim,) it cannot be the UN for the reasons given above and it cannot be a nonexistent Palestinian Arab state or entity which didn't even exist when Israel captured it.

(The rest of the booklet includes analyses of the legality of Israel's control of the West Bank, settlements, the Palestinian Arab "right of return," and other issues.)


EoZTV Podcast

Podcast URL

Subscribe in podnovaSubscribe with FeedlyAdd to netvibes
addtomyyahoo4Subscribe with SubToMe

search eoz



Follow by Email



For $18 donation

Sample Text

EoZ's Most Popular Posts in recent years


Elder of Ziyon - حـكـيـم صـهـيـون

This blog may be a labor of love for me, but it takes a lot of effort, time and money. For over 14 years and 30,000 articles I have been providing accurate, original news that would have remained unnoticed. I've written hundreds of scoops and sometimes my reporting ends up making a real difference. I appreciate any donations you can give to keep this blog going.


Donate to fight for Israel!

Monthly subscription:
Payment options

One time donation:

subscribe via email

Follow EoZ on Twitter!

Interesting Blogs


#PayForSlay Abbas liar Academic fraud administrivia al-Qaeda algeria Alice Walker American Jews AmericanZionism Amnesty analysis anti-semitism anti-Zionism antisemitism apartheid Arab antisemitism arab refugees Arafat archaeology Ari Fuld art Ashrawi ASHREI B'tselem bahrain Balfour bbc BDS BDSFail Bedouin Beitunia beoz Bernie Sanders Biden history Birthright book review Brant Rosen breaking the silence Campus antisemitism Cardozo cartoon of the day Chakindas Chanukah Christians circumcision Clark Kent coexistence Comix Community Standards conspiracy theories COVID-19 Cyprus Daled Amos Daphne Anson David Applebaum Davis report DCI-P Divest This double standards Egypt Elder gets results ElderToons Electronic Intifada Ellen Horowitz Embassy EoZ Trump symposium eoz-symposium EoZNews eoztv Erekat Erekat lung transplant EU Euro-Mid Observer European antisemitism Facebook Facebook jail Fake Civilians 2014 Fake Civilians 2019 Farrakhan Fatah featured Features fisking flotilla Forest Rain Forward free gaza freedom of press palestinian style future martyr Gary Spedding gaza Gaza Platform George Galloway George Soros German Jewry Ghassan Daghlas gideon levy gilad shalit gisha Goldstone Report Good news Grapel Guardian guest post gunness Haaretz Hadassah hamas Hamas war crimes Hananya Naftali hasbara Hasby 2014 Hasby 2016 Hasby 2018 hate speech Hebron helen thomas hezbollah history Hizballah Holocaust Holocaust denial honor killing HRW hum Human Rights Humanitarian crisis humor huor Hypocrisy ICRC IDF IfNotNow Ilan Pappe Ilhan Omar impossible peace incitement indigenous Indonesia infographic international law interview intransigence iran Iraq Islamic Judeophobia Islamism Israel Loves America Israeli culture Israeli high-tech J Street jabalya James Zogby jeremy bowen Jerusalem jewish fiction Jewish Voice for Peace jihad jimmy carter Joe Biden John Kerry jokes jonathan cook Jordan Joseph Massad Juan Cole Judaism Judea-Samaria Judean Rose Judith Butler Kairos Karl Vick Keith Ellison ken roth khalid amayreh Khaybar Know How to Answer Lebanon leftists Linda Sarsour Linkdump lumish mahmoud zahar Mairav Zonszein Malaysia Marc Lamont Hill Marjorie Taylor Greene max blumenthal Mazen Adi McGraw-Hill media bias Methodist Michael Lynk Michael Ross Miftah Missionaries moderate Islam Mohammed Assaf Mondoweiss moonbats Morocco Mudar Zahran music Muslim Brotherhood Naftali Bennett Nakba Nan Greer Nation of Islam Natural gas Nazi Netanyahu News nftp NGO Nick Cannon NIF Noah Phillips norpac NSU Matrix NYT Occupation offbeat olive oil Omar Barghouti Only in Israel Opinion Opinon oxfam PA corruption PalArab lies Palestine Papers pallywood pchr PCUSA Peace Now Peter Beinart Petra MB philosophy poetry Poland poll Poster Preoccupied Prisoners propaganda Proud to be Zionist Puar Purim purimshpiel Putin Qaradawi Qassam calendar Quora Rafah Ray Hanania real liberals RealJerusalemStreets reference Reuters Richard Falk Richard Landes Richard Silverstein Right of return Rivkah Lambert Adler Robert Werdine rogel alpher roger cohen roger waters Rutgers Saeb Erekat Sarah Schulman Saudi Arabia saudi vice self-death self-death palestinians Seth Rogen settlements sex crimes SFSU shechita sheikh tamimi Shelly Yachimovich Shujaiyeh Simchat Torah Simona Sharoni SodaStream South Africa Sovereignty Speech stamps Superman Syria Tarabin Temple Mount Terrorism This is Zionism Thomas Friedman TOI Tomer Ilan Trump Trump Lame Duck Test Tunisia Turkey UAE Accord UCI UK UN UNDP unesco unhrc UNICEF United Arab Emirates Unity unrwa UNRWA hate unrwa reports UNRWA-USA unwra Varda Vic Rosenthal Washington wikileaks Winstanley work accident X-washing Y. Ben-David Yemen YMikarov zahran Ziesel zionist attack zoo Zionophobia Ziophobia Zvi

Blog Archive