Joint Sovereignty is the Feasible Solution

By John V. Whitbeck

There will never be a durable peace in the Middle East without a settlement of the Israeli-Palestinian conflict acceptable both to most Israelis and to most Palestinians. That is a fact. There also will never be a lasting settlement of the Israeli-Palestinian conflict without a solution to the status of Jerusalem acceptable both to most Israelis and to most Palestinians. That also is a fact.

It is widely assumed that no such solution exists. This has led Israel to insist that the status of Jerusalem should not even be discussed until all the lesser problems of Israeli-Palestinian relations have been resolved (at which point, perhaps, some previously unimaginable solution may miraculously appear). However, there is one and only one solution which has a real chance of being acceptable both to most Israelis and to most Palestinians.

With doubts, distrust and even despair still widespread on both sides, notwithstanding the long-delayed commencement of Israel's withdrawal from the occupied territories, nothing is more likely to restore the faltering momentum toward peace and to accelerate the essential moral, spiritual and psychological transformation toward a cooperative, rather than a confrontational, view of the future of the Middle East than a prompt recognition that a solution to the status of Jerusalem does exist.

When Israelis and Palestinians speak of Jerusalem, they are not simply laying out negotiating positions. Jerusalem has too tight a grip on hearts and minds. Their repeated and virtually unanimous positions must be taken seriously.

If one accepts, as one must, that no Israeli government could ever accept a redivision of Jerusalem, and if one accepts, as one must, that no Palestinian leadership could ever accept a permanent status settlement which gave the Palestinian State (and, indeed, the Arab and Islamic worlds) no share of sovereignty in Jerusalem, then only one solution is conceivable—joint sovereignty over an undivided city. In the context of a two-state solution, Jerusalem could form an undivided part of both states, be the capital of both states and be administered by an autonomous, elected municipal council.

Joint undivided sovereignty, while rare, is not without precedent. Chandigarh is the joint undivided capital of two Indian states. For more than 70 years, the entire Pacific nation of Vanuatu (formerly the New Hebrides) was under the joint undivided sovereignty of Britain and France. For more than 700 years, the Principality of Andorra has been under the joint undivided sovereignty of French and Spanish individuals (currently the president of France and the bishop of Seo de Urgel) while its administration is entrusted to an elected General Council.

As a joint capital, Jerusalem could have Israeli government offices principally in its western sector, Palestinian government offices principally in its eastern sector and municipal offices in both. A system of districts or French-style arrondissements could bring municipal administration closer to the different communities in the city. To the extent that either state wished to control persons or goods passing into it from the other state, this could be done at the points of exit from, rather than the points of entry to, Jerusalem. In a context of peace, particularly one coupled with economic union, the need for such controls would be minimal.

In a sense, Jerusalem can be viewed as a cake which could be sliced either vertically or horizontally. Either way, the Palestinians would get half the cake, but, while most Israelis could never voluntarily swallow a vertical slice, they might just be able to swallow a horizontal slice. Indeed, by doing so, Israel would finally achieve international recognition of Jerusalem as its capital.

Jerusalem is both a municipality on the ground and a symbol in hearts and minds. Undivided but shared in this way, Jerusalem could be a symbol of reconciliation and hope for Jews, Muslims, Christians, and the world as a whole.

Among peace-oriented Israelis and Palestinians there is a broad consensus that, in any permanent status settlement, Jerusalem should remain physically undivided. However, there is no consensus on how the problem of sovereignty should be solved. "Joint undivided sovereignty" is a concept which even highly intelligent people are often unable to comprehend. Perhaps, paradoxically, it is too simple to be easily understood.

In seeking a solution to the status of Jerusalem, it is essential to distinguish between sovereignty and municipal administration. (Until German reunification, the western sectors of Berlin, under American, British and French sovereignty, were jointly administered by an autonomous, elected Senate.)

Questions of municipal administration, including the division of authorities between an umbrella municipal council and smaller district councils, exist for any sizeable city, regardless of any questions of sovereignty. In Jerusalem's case, it would clearly be desirable, employing the European Union's principle of "subsidiarity," to devolve as many aspects of municipal governance as possible to the district council level, reserving to the umbrella municipal council those major matters which can only be administered efficiently at a citywide level.

Since there are no integrated neighborhoods in Jerusalem, assuring that Israelis are subject to Israeli administration, and Palestinians to Palestinian administration at the district council level would present no practical problems.

Sovereignty over Jerusalem is a symbolic, psychological and virtually theological question. Symbolism, psychology and theology are extraordinarily important in connection with Jerusalem (more so than with any other city on earth), but it is important to recognize that that is the nature of the question. To suggest an absurd example, sovereignty over Jerusalem could be assigned, as is sovereignty over Andorra, to the president of France and the bishop of Seo de Urgel. Municipal administration would be unaffected. However, such a decision on sovereignty (or even an "internationalization" of the city, with neither Israel nor Palestine having sovereignty, as recommended in 1947 by U.N. General Assembly Resolution 181 and as still supported in serious circles) would serve no useful symbolic or psychological purpose for those most directly concerned.

Assigning sovereignty over an undivided city both to Israel and to Palestine should satisfy to the maximum degree possible the symbolic and psychological needs of both Israelis and Palestinians. It could also have profound positive psychological benefits on the quality of "life after peace" by requiring in practice and in spirit a sharing of the city and cooperation with "the other," rather than a new partitioning of the city and mere toleration of "the other" or the continuing domination of one people over another.

One of the strengths and beauties of joint undivided sovereignty, and a potential advantage in making it acceptable to both peoples and to their leaderships, is that it would not require either Israel or Palestine to renounce sovereignty over any territory to which it has asserted sovereignty. The State of Palestine asserts sovereignty only over those Palestinian lands occupied by Israel in 1967. Of those lands, the State of Israel asserts sovereignty only over expanded East Jerusalem. Under joint undivided sovereignty, in the only place where sovereignty claims overlap, sovereignty would be shared. To repeat, neither Israel nor Palestine would have to renounce sovereignty over any territory to which it has asserted sovereignty. Potentially intractable negotiations over where to draw international borders through and perhaps within Jerusalem would be completely avoided, since the city would not be partitioned but shared.

Israelis should ask themselves what (if anything) they would actually be giving up in accepting joint undivided sovereignty over Jerusalem.

Roughly 70 percent of the city's residents are now Jewish, and Palestinian residents already have the right to vote in municipal elections. That would not change. Put most simply, all Israel would have to do is say this: "Unified Jerusalem, within the expanded boundaries which we have unilaterally established, is the eternal capital of Israel ... but, in order to make peace possible, we accept that it is also the capital of Palestine." That's all.

While, today, only Costa Rica and Zaire recognize West Jerusalem as Israel's capital, and no country recognizes Israeli sovereignty over East Jerusalem, if Israel adopted such a position and implemented it with Palestinian consent, virtually all countries would promptly recognize unified Jerusalem as Israel's capital. Embassies would move there. Is this really so unthinkable for Israelis? Is this really impossible?

Joint undivided sovereignty is not the first choice of either Israelis or Palestinians. Exclusive Israeli sovereignty over the whole city would clearly be the first choice of most Israelis. However, this is clearly unacceptable not only to Palestinians. It is also unacceptable to the Arab and Islamic countries with which Israel wishes to have normal diplomatic and economic relations. They would accept any settlement terms which the Palestinians Might accept except that one.

A redivision of sovereignty strictly in accordance with the pre-1967 border (and hence with international law and U.N. Security Council Resolution 242) would clearly be the first choice of most Palestinians. However, particularly in light of the presence of the Western Wall and enormous new Jewish residential districts in expanded East Jerusalem, this is clearly inconceivable from the Israeli standpoint.

The "Best Second Choice"

These irreconcilable "first choice options" must, logically, be discarded by all who truly wish to achieve peace. Such people should be searching now for a mutually acceptable "best second choice." If one accepts the two premises that (1) no Israeli government could ever accept a redivision of Jerusalem and (2) no Palestinian leadership (and certainly not the Arab and Islamic worlds) could ever accept a permanent status settlement which gave the Palestinian state no share of sovereignty in Jerusalem, then, as a matter of pure logic, joint undivided sovereignty is the only possible second choice if peace ever is to be achieved. However, even if either premise were untrue, and a redivision of sovereignty in Jerusalem could be agreed upon, joint undivided sovereignty might still be the best possible second choice for both Israelis and Palestinians.

If Israelis and Palestinians can agree (even if only silently for the moment) that a mutually acceptable solution for the status of Jerusalem does exist, all the other pieces in the delicate peace puzzle should fall into place. Without a mutually acceptable solution for the status of Jerusalem, everything will fall apart. That cannot be permitted to happen.

The road to "interim selfrule" may start in Gaza and Jericho, but the road to peace starts in Jerusalem. The time to think and talk about Jerusalem is now.

John V Whitbeck is an international lawyer in Paris. His "Two States, One Holy Land" frame work for peace was the subject of a three-day conference of 24 Israelis and Palestinians held in Cairo in November 1993.