A New Treaty for the Holy Land?

Since the Islamic conquest of the Holy Land in the seventh century, the church has sought to put in place a political-legal system to protect the presence of Christians in the region. Over the last thousand years, scholars tell us, the church has employed in succession three distinct methods in its attempt to defend the region’s Christians. The first we might call the “unilateral way,” as exemplified by the Crusaders’ failed attempt to retake and hold the Holy Land by military force. A second, “bilateral” model consisted in negotiating treaties between the Catholic powers of Europe and the Ottoman Empire, in particular, which ruled the Holy Land for four centuries until 1917/18. These bilateral treaties obtained some essential, though unevenly distributed guarantees for the church and its institutions.



The bilateral approach was succeeded in the 20th century by a third, “multilateral” model. The League of Nations, and later the United Nations, took up the task of ensuring religious freedom, equality before the law and protection of holy places and religious institutions for all in the Holy Land. The most famous example of multilateralism is United Nations Resolution 181 (II) of Nov. 29, 1947. The resolution continues, in principle, to be the basis for any definitive settlement of the still conflicted and unstable situation in much of the region. It contains a political formula widely supported in the Catholic world, namely, that two national states (one Jewish and one Arab) should be established and that the “City of Jerusalem and its environs” be entrusted to international administration.

The resolution also provides precise, identical formulas for insertion by both states into their respective constitutions safeguarding the critical values for all—equality before the law and protection of holy places and religious institutions. According to Resolution 181, the (international) governor of Jerusalem would be responsible for monitoring compliance in the territories of the national states, as well as in his own territory.

The subsequent history is well known. It is sufficient here to recall that except for the timely establishment of the Jewish state, though without the required constitution, the will of the international community was completely frustrated. Israeli independence did, however, restore purpose and hope to a much-tried people. Meanwhile, even though the State of Israel promised other nations that it would respect the partial safeguards so laboriously obtained during Ottoman rule, it has consistently declined to recognize them as legally binding.


A New Bilateralism

In time even the de facto observance of the old guarantees gradually eroded away. As a result, so this thesis goes, the central government of the Catholic Church realized that without in the least abandoning its insistence on restoring international legality to the overall situation, especially in Jerusalem, another approach was needed. Accordingly, it once again turned to bilateralism, with the Holy See negotiating treaties directly with the nations concerned.

On Feb. 15, 2000, for example, the Holy See signed a “Basic Agreement” with the P.L.O., “working for the benefit and on behalf of the Palestinian Authority.” The situation that ensued soon afterward in the areas of the Palestinian Authority, however, makes it impossible for anyone to gauge as yet the agreement’s eventual effectiveness, particularly its intended role in the legislation and policies of the future Palestinian state. 

Six years earlier (Dec. 30, 1993) the State of Israel and the Holy See had signed their “Fundamental Agreement” on the reciprocal rights and responsibilities of church and state. On the international plane, the agreement came into force in March 1994.

From the beginning, however, there were problems in ensuring that the Fundamental Agreement was implemented. It took several years before Israel even published the text of the agreement in the Official Gazette, notifying public entities of the state’s obligations under the treaty. Even more troubling is the lack so far of legislation to give the treaty force in Israeli law. In court filings, at Israel’s own Supreme Court, the government has now officially asserted that, absent such legislation—which officials say will never be initiated—the Fundamental Agreement with the Holy See has no legal force in Israel.

Also, negotiations on a further treaty, explicitly required by the Fundamental Agreement to secure the church’s fiscal status and property rights, have stalled. In August 2003 Israel recalled its delegation to the talks, which had been taking place sporadically since March 1999. Israel came back to the table 11 months later under gentle pressure from the United States. Since then Israel has agreed to negotiate only sporadically, and even then through a delegation lacking a mandate broad enough to match that of their Vatican counterparts. It may at times appear that the relationship has deteriorated from one in which both parties were negotiating a much-needed treaty to one of seemingly endless “talks (if any) about talks.”

A Return to Multilateralism?

On the Catholic side, skeptics may ask whether this new “bilateral way” is not turning out to be a way to nowhere. A powerful argument is now being quietly made—though it may grow louder as the stalemate drags on—that ultimately there may be no choice but to close this chapter and re-embrace instead, and vigorously, the “multilateral way.” Why? Only a multilateral treaty, with both a monitoring and an “enforcement” arm, so the argument goes, could ensure that the rights and legitimate interests that belong to humanity will be observed, respected and honored in this unique region, which is home to two nations, but is a spiritual home to much of the rest of the world as well. Such a renewed pursuit of a multilateral solution derives its force from the stated purpose of U.N. Resolution 181, adapting to current conditions a mechanism for its detailed implementation.

This renewed multilateralism should be able to build on an initiative undertaken by several European countries in the late 1990’s. They convened an unpublicized working group, with Catholic participation, to study possible solutions to the “question of Jerusalem.” The participants focused on remedying the illegality of the de facto situation in Jerusalem since 1948, namely the failure of both Jordan and Israel to honor Resolution 181’s provisions for Jerusalem, and their successive unilateral annexations of the territory intended for international administration.

The working group started from the premise that the mechanism specified by Resolution 181 was no longer practicable and that other ways had to be found to achieve the resolution’s aims. It sought to prevent a situation in which religious freedom and religious rights in Jerusalem would be left to the internal legal order of just one or two religiously identified states. The conferees also understood that without those aims being implemented, Israel and Palestine could not legally settle the matter of territorial sovereignty in Jerusalem between themselves. Those days were filled with great expectations for a definitive Israeli-Palestinian peace. According to the Oslo process, talks on such a peace treaty were to be held in 1999. Later the parties agreed to postpone them by just one year. European countries with a traditional interest in the Holy Land felt an urgency, therefore, to work out a common position in preparation for those final status talks.

A Draft Treaty

The European working group considered a proposal for a “Multilateral Treaty on the City of Jerusalem and Its Environs.” Essentially it specified the rights and values to be safeguarded internationally in that area and described a “treaty organization” to monitor and ensure its implementation. The model treaty suggested that once both Israel and its Palestinian partner adhered to those fundamental commitments, they should be free to settle the territorial issues simply between themselves.

Later, and perfectly congruent with this proposal, the “Basic Agreement Between the Holy See and the P.L.O.” (Feb. 15, 2000) endorsed the general principle, long urged by the Holy See, of “an internationally guaranteed special statute” for Jerusalem. It also listed the essential values and rights to be safeguarded. The signatories foresaw future Israeli acceptance, given similar ideas and promises that Israel itself had generated in the past.

These explorations ended with the catastrophic collapse of the Israeli-Palestinian peace negotiations in the second half of 2000. (The chancelleries concerned are no doubt keeping the group’s accumulated papers for use another day.)

Catholic (and other) participants had thought, however, that these matters were well on their way to being adequately covered by the bilateral agreements between each of the two nations and the Holy See. Given the hopes and expectations of those days, it would be hard to judge such thinking at that time as rash. Time, however, has proved those hopes premature.

Disappointment at Camp David

The summer of 2000 brought devastating disappointment to those concerned with Christian rights in the Holy Land. This time the failure came from the Palestinian side. As the Jerusalem question was being hotly debated between Palestinian President Yasser Arafat and Israeli Prime Minister Ehud Barak at their ill-fated Camp David summit, not once did the Palestinian delegation advocate the terms of their policy agreement with the Vatican. Instead their position was, on the whole, incompatible with it. Nor did Palestinian delegations ever make their own the policy they had endorsed in the Basic Agreement, in any later negotiating sessions, held mainly at Taba, before that peace process expired at the start of 2001.

For Israel, the Fundamental Agreement process has never really taken off. The agreement has not been written into law, and its mandates are not being carried out. As a result, the idea has arisen to enlarge future discussions on Jerusalem by including the precise mandates given by the United Nations to the two national states with respect to religious rights.

Concerned Catholic bodies could once more insist that the Jerusalem question itself—full implementation of the intent of Resolution 181—cannot be deemed to have been resolved except when the two states have undertaken precise international legal commitments to religious freedom, safeguarding of holy places and equal rights for all in their own territories, regardless of their religious belief. The parties should also agree to the monitoring of compliance and appropriate processes of adjudication on the international level of any eventual disputes and complaints.

Sovereignty and International Obligations

Today, more than in 1948, it could not be claimed that such internationally enforced rules would be an intolerable imposition on national sovereignty. Today the arguments to overcome objections based on sovereignty do not refer only to the uniqueness of the Holy Land and the presence within it of rights and legitimate interests belonging to a large part of humanity; they also rely on the European and other models of binding multilateral conventions, notably on human rights, with their accompanying mechanisms of monitoring and enforcement.

The world is left waiting for an opportunity to seek such multilateral instruments. The bilateral way has been tried, and is still being tried, but it has not led anywhere so far. Waiting to try again the multilateral way is, perhaps, the best that can be done right now.

Editor’s note: A draft multilateral treaty can be found at www.enec.it

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