Foreign Relations of the United States, 1949, The Near East, South Asia, and Africa, Volume VI

501.BB Palestine/7–549

Memorandum by the Acting Director of the Office of United Nations Affairs (Sandifer) to Mr. James W. Barco ¹

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[Washington,] July 5, 1949.

The working paper of May 18, 1949 entitled “Preliminary Draft, International Regime for the Jerusalem Area” has been examined by officers of UNA, L, and NEA, who have collaborated in the following comments and suggestions which are transmitted for your assistance. Please give us your reaction to these suggestions and keep us informed as to the views of your French and Turkish colleagues on such of the points as you may take up with them.

It is suggested that the working paper might be given a title such as “Instrument Establishing an International Regime for the Jerusalem Area”. This would make it possible to refer to the document as an “Instrument” rather than a “Plan” as is now done.

Article 3. Powers of government in the two zones shall be exercised by the competent local authorities in their respective zones except as otherwise provided in the present Instrument.

Comment: It is believed preferable to eliminate the phrase “exclusive competence” found in the working paper in favor of the expression “except as otherwise provided”, which is a more accurate description of the division of powers set forth in the Instrument.

Article 4. It is suggested that the proposed United Nations representative be given the title of “Commissioner” instead of “Administrator”.

After the first paragraph of Article 4, the following might be inserted:

• “The Commissioner shall report annually to the General Assembly. He shall also make special reports to the appropriate United Nations organ whenever he deems it necessary.”

Article 5. Delete the last sentence and substitute the following phrase as the last clause of the preceding sentence: “and three by the responsible authorities of the two zones acting jointly or, in event of their failure to agree, by the Commissioner.”

Comment: This suggestion is in line with the suggestion in Jerusalem telegram 412, June 13, the reasons for which are regarded as completely valid.

Articled 6. On behalf of the United Nations, the Commissioner shall ensure the protection of and free access to the Holy Places, in accordance with the terms of Articles 12 to 14 of the present Instrument.

Article 6 bis. Similarly on behalf of the United Nations, the Commissioner shall supervise:

(a) the permanent demilitarization and neutralization of the area, in accordance with the terms of Article 15 of the present Instrument; and

(b) the protection of human rights and of the rights of distinctive groups, in accordance with the terms of Article 17 of the present Instrument.

Comment: We consider that the word “supervise” is a more accurate expression of the function of the Commissioner under paragraphs 2 and 3 of Article 6 of the working paper.

Article 7. The Commissioner, assisted by the Administrative Council, shall promote, facilitate, and participate in:

(a) coordination of measures for the maintenance of public order;

(b) operation of the main services of common interest to the Jerusalem area;

(c) equitable allocation of the contributions of each zone toward expenditures in the common interest; and

(d) planning and execution, on an area-wide basis, of such matters of municipal concern as regional planning, the development of transport and communications, and the construction and operation of public utilities.

Comment: It is believed that the expression “promote, facilitate, and participate in” more accurately describes the role of the Commissioner than the term “ensure”—an obligation which might also be beyond his power to carry out.

Article 8. Delete.

Comment: The part of Article 8 which is desirable to retain is here moved to Article 7, resulting in the deletion of Article 8.

Article 9. There shall be established an International Tribunal for Jerusalem composed of three judges to be appointed by the President of the International Court of Justice. Each judge shall hold office for a term of _______________ years from the date of his appointment and until a successor shall have been appointed, unless his post on the Tribunal shall earlier have become vacant. The President of the International Court of Justice shall determine when a vacancy has been created through resignation, disability, or death. A judge may be removed for cause by the General Assembly of the United Nations, thereby creating a vacancy. A judge may be appointed for successive terms. In the initial appointments, one judge shall be appointed for ___________ years, the second for ________ years, and the third for __________ years. The judges of the International Tribunal shall not be residents of Jerusalem or nationals of the State of Israel or an Arab State. The Tribunal shall sit in Jerusalem. It shall prescribe its own rules of procedure. The Tribunal shall designate one of its number to serve as president for such period as the Tribunal may determine. The judges shall receive uniform salary, and allowances, in amounts to be determined by the General Assembly.

The International Tribunal for Jerusalem shall have jurisdiction to hear and determine cases between the responsible authorities of the Jewish and Arab zones and between the United Nations Commissioner and the responsible authorities of either zone involving claims that laws, ordinances, regulations, administrative acts or court decisions applying to the area of Jerusalem are incompatible with the present Instrument.

Alternative text for preceding paragraph:

[The International Tribunal for Jerusalem shall have jurisdiction to hear and determine cases between the responsible authorities of the Jewish and Arab zones and between the United Nations Commissioner and the responsible authorities of either zone concerning the interpretation or application of the present Instrument.]²

The Tribunal shall also have jurisdiction to review, in its discretion, final decisions of the Mixed Tribunal for Jerusalem provided for in Article 10 of the present Instrument.

Decisions of the Tribunal shall be binding on the parties.

The International Tribunal may issue such orders within its competence as it deems necessary to the effective exercise of its jurisdiction.

Comment: As indicated in Unpal 88, May 2, we favor making the decisions of the Tribunal legally binding in all cases. On this basis the distinctions made in paragraph 3 of Article 9 of the working paper become unnecessary. Also it seems that paragraph 2 of this Article would include paragraph 1, which may therefore be eliminated.

An alternate text is submitted above for paragraph 2 embodying the usual language used in treaties for conferring compulsory jurisdiction over the subject matter. Such language would be desirable on general principles, but there is doubt whether in this case it might give an appearance of rigidity which would be objectionable to the parties.

The paragraph concerning the review of decisions of mixed courts is suggested because it is felt that such cases, even though the parties are individuals or corporations, might involve the interpretation of the basic Instrument for Jerusalem.

Article 10. The following introductory paragraph for this article is suggested:

• “There shall be established a Mixed Tribunal for Jerusalem composed of three judges. Each Judge shall hold office for a term of ________ years from the date of his appointment and until a successor shall have been appointed, unless his post on the Tribunal shall earlier have become vacant through resignation, disability, or death. A judge may be appointed for successive terms. One judge shall be appointed by the responsible authorities of the Jewish and Arab zones respectively. The third judge, who shall serve as president of the Tribunal, shall be appointed by the President of the International Tribunal for Jerusalem; this third judge shall not be a resident of Jerusalem or a national of the State of Israel or an Arab State. The Mixed Tribunal shall sit in Jerusalem. It shall prescribe its own rules of procedure. The judges shall receive uniform salary, and allowances, in amounts to be determined by the General Assembly.”

This would be followed by the present second paragraph of the working paper, with the insertion of the word “all” before “the parties” in the second line.

The following additional paragraph for Article 10 is also suggested:

• “The Mixed Tribunal may issue such orders in Jerusalem as it deems necessary for the effective exercise of its jurisdiction. The decisions and orders of the Mixed Tribunal shall be executed by the appropriate authorities of the zone in which such decision or order applies.”

Article 11 bis. The salaries, allowances, and administrative expenses of the United Nations Commissioner, the Deputy Commissioner, the International Tribunal for Jerusalem, the Mixed Tribunal for Jerusalem, and the staff of the Administrator, including guards and administrative personnel, shall be included in the annual budget adopted by the General Assembly and shall be paid by the United Nations.

Comment: This text would replace the last paragraph of present Article 11.

Article 12. As to the first paragraph, it might be desirable to specify that guards may also be stationed on the routes specified by the Administrator to give immediate access to the Holy Places.

With regard to paragraphs on taxation, we would consider that the corresponding clause, (Article 36, paragraph 6) of the Trusteeship Council draft Statute, would be preferable. This clause was based almost textually on the General Assembly Resolution of November 29, 1917 and had wide acceptance among United Nations members, including France.

Article 13. The Commissioner shall undertake to secure for ministers of religion and pilgrims free circulation throughout Jerusalem. He shall have power to negotiate and conclude with the States concerned arrangements to facilitate the travel of ministers of religion and pilgrims to and from Jerusalem.

Article 15. It is suggested that the second paragraph begin as follows:

• “The reponsible authorities of the two zones shall make declarations to the General Assembly guaranteeing the demilitarized character of their respective zones …”³

The third paragraph might read:

• “Any violation of the provisions contained in these assurances or any attempt to alter the international regime by force shall, unless settled by negotiations or pursuant to a decision of the Tribunal, be reported by the Commissioner to the Secretary General, who shall bring the matter to the attention of the Security Council.”

In the fourth paragraph we suggest that “two parties” be replaced by “responsible authorities” and that the following be added to the end of the paragraph: “unless temporarily authorized by the United Nations Commissioner.”

Article 16. We suggest the deletion of the phrase “be called upon to.”

Article 17. Our comments on this article have already been telegraphed to you.

Article 18. We suggest that this should be deleted.

Article 19. A possible alternative to this article would be a provision that Jerusalem shall not be the capital of either of the adjacent states.

We also have in mind the possibility of using the International Tribunal in certain matters outside the Jerusalem area. In particular we have in mind the possibility that the parties might be called upon to give undertakings that they will not impose undue restrictions on the entry and free movement of persons desiring to visit the Holy Places in Palestine. It appears possible to give the International Tribunal jurisdiction to determine whether visa regulations and other measures are unduly restrictive of such free access.

1. Mr. Barco was formally attached to the Division of United Nations Political Affairs; at this time, he was on detail to the American Delegation at Lausanne. The memorandum of July 5 was sent to him, in care of the Consulate at Geneva, with a letter of July 14 by Mr. Sandifer, who by that time had become Deputy Assistant Secretary of State for United Nations Affairs (501.BB Palestine/7–1449).
2. Brackets appear in the source text.
3. Omission in the source text.