6 Conclusions
This paper has shown that several elements justify the definition by the Rome’s Tribunal of Jerusalem being a “disputed” capital of Israel. This definition matches well with the actual complexity of that city’s international legal regime. The sheer negative assertion that Jerusalem is not the capital of Israel sounds as a too clear-cut and peremptory representation of the existing reality, and neglects the fact that West Jerusalem is widely recognized (either expressly or impliedly) as being under legitimate Israeli sovereignty and the capital of Israel. It is, by contrast, the status of East Jerusalem that is heavily disputed within the international community. It is only to East Jerusalem, qua occupied territory, that the customary duty of non-recognition applies.
In conclusion, we should note that the obligation of non-recognition might not be sufficient to secure liberation of territories illegally detained by a foreign power. This happens when questions of forcible occupation are tightly intermingled with issues of boundary delimitation, previous international conflicts in the area, longstanding military occupation or the assertion of historic titles. A complex legal framework is usually required to settle such intricate disputes. To mark the general interest of the international community in these cases, negotiations between the occupying power and representatives of the local population are mostly held under the auspices of the UN or regional organisations. Third States also regularly intervene to guarantee that the resulting adjustment is correctly applied. Return to legality is thus obtained thanks to a combination of social pression and institutional decisions. Therefore, a peaceful solution of the Israeli-Palestinian conflict should be reached through bilateral negotiations on individual controversial points and by encouraging specific diplomatic initiatives to provide legal and political frameworks to that end. This has been clearly and repeatedly restated in the practice of the UN: “The United Nations maintains the view that Jerusalem is a final-status issue that must be resolved through direct negotiations between the two parties on the basis of the relevant Security Council and General Assembly resolutions, taking into account the legitimate concerns of both the Palestinian and the Israeli sides”.
An important aspect of any future solution concerning the status of the Holy City is that of ensuring access to the holy sites. This idea was at the center of the initial plan concerning Jerusalem’s special status as corpus separatum, but the objective of preserving the Holy City’s spiritual dimension still lingers on. In some UN resolutions on the Middle East conflict, reference is often made to the “need to protect and preserve the unique spiritual and religious dimension of the Holy Places in the City”. The protection of this dimension appears to fulfil the general “interest of the international community” in the future status of Jerusalem as recommended by some UN resolutions. In Resolution 465 (1980) of 1 March 1980 mention is also made “to the need, for any governing authority, to protect and preserve the unique spiritual and religious dimension of the Holy Places in the City”. This clause, reminiscent of the originally international regime proposed by the UN Assembly in 1948, is a territorial clause to be included whichever status of Jerusalem is finally attained. This inclusion is in line with the expectations of the international community as a whole. It is also consistent with Article 2 of Israel’s 1980 Basic Law, which pledges: “[t]he Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings towards those places”. Article 2 is a constitutional obligation on Israeli organs to respect freedom of religion in the Holy City in accordance with previous historical practice.
Massimo Iovane, giurista