International Law

On Sovereignty, Antarctica, Talmud and the Status of Jerusalem

By Benjamin Wittes
Sunday, December 21, 2014, 3:28 PM

It is always fascinating to watch someone see Jerusalem for the first time. Yesterday, I took a long walk through the Old City with an archeologist and the wonderful group of scholars that Academic Exchange and the Yitzhak Rabin Center have brought to Israel for an incredibly rich week of briefings and discussions with Israelis and Palestinians. Some of this group had spent time in Israel before. For some, however, this walk was the first confrontation with the degree to which multiple peoples and multiple religious traditions are living on top of one another in Jerusalem with competing understandings, claims, narratives, and mutual senses of injury and grievance. At lunch on return from the walk, Erin Delaney---a comparative constitutionalist from Northwestern whom I have had the pleasure of getting to know on this trip---exclaimed, "What I saw this morning explodes twentieth century notions of ownership and sovereignty."

I have spent a lot of time in Jerusalem over the years, but I have never thought about it in those terms, and Erin's remark---in combination with a briefing from earlier in the week---put me in mind of a passage of Talmud that, as I think about it, may offer a useful and humane way for international law to approach the resolution of intractably irreconcilable claims to and about this city. The Taludic text in question bears a strange resemblance to, of all things, the Antarctic Treaty.

Let's unpack.

The status of Jerusalem has always been one of the most intractable final status issues in Israel-Palestinian negotiations. But Erin's comment formulated the problem in a way I had not previously considered---at least not conciously. That is, maybe the problem is so intractable in part because the legal concepts we bring to the table---sovereignty and property rights, for example---simply don't fit Jerusalem in a fashion that is useful to the conflict's resolution. That is, maybe our legal tools are part of the problem. How do you divide sovereignty over a site like the Temple Mount, on the surface of which stands the third-holiest site in Islam yet whose surface was previously the site of the destroyed Jewish Temple, which is central to Jewish religiosity and which Jews aspire to rebuild---a Temple whose Western Wall has been a site of daily veneration for centuries? How do you think about property ownership in a city in which the perfectly legal conveyance of a house or the land on which it sits can spark dangerous inter- or intra-communal violence precisely because it can constitute an effort to disrupt a delicate status quo about who lives where? How do you think about injury and moral claims to land and space in a city in which a recently-rebuilt synagogue---destroyed first in the 18th Century and then again in 1948---can stand next to the minaret of a mosque at which Muslims can no longer pray?

I was particularly intrigued by Erin's formulation of the problem because earlier in the week, we met with a genuinely inspiring person who has been centrally involved in Israeli-Palestinian negotations for many years. I have to be cagey about who this person is, but this person discussed various conceptual approaches to the subject of sovereignty over Jerusalem in final status: mutual withdrawal of certain claims, international sovereignty, divine sovereignty, and shared sovereignty, to name only a few. But one idea this person mentioned as well dovetailed elegantly with Erin's instinct on laying eyes on the Old City. What if we asked neither side to withdraw any of its claims or to acknowledge the legitimacy of any of the other side's claims, but merely asked both not to assert the full extent of their claims? In other words, what if we simply accepted that sovereign claims overlap---and maybe even legitimately so---and tried to resolve the problems on some basis other than the legal tools we are used to?

This brings me to Article IV of the Antarctic Treaty. Antarctica, needless to say, lacks the emotional and religious power of Jerusalem. It also lacks a population, let alone multiple populations living on top of one another. There are no mosques or synagogues on the frozen contintent, let alone mosques and synagogues destroyed or abandoned yet standing next to one another for decades. The frozen commons has no church whose administration is so divided by intra-Christian religious tensions that it has fallen into disrepair and basic maintance can lead to fist-fights between monks.

What Antarctica does have in common with Jerusalem is a certain explosion---to use Erin's term---of modern notions of sovereignty. And the Antarctic Treaty's resolution of long-standing, competing, and irreconcilable territorial claims bears a fascinating resemblance to our nameless interlocutor's entertainment of the notion that neither Israelis nor Palestinians should give up their Jerusalem claims but merely agree not to assert them.

A handful of countries had territorial claims on Antarctica at the time the Treaty was signed, and Article IV did not ask any of them to renounce them: "Nothing contained in the present Treaty shall be interpreted as: (a) a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in Antarctica; (b) a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise; (c) prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State’s right of or claim or basis of claim to territorial sovereignty in Antarctica."

What the treaty demands from each of the countries making claims on Antarctica is that "No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica." What's more, the Treaty makes clear that "No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force." In other words, the Treaty does not ask any country with a claim on territory in Antarctica to give it up. And it doesn't ask any country to recognize the legitimacy of any other country's claims either. It asks only each country not assert its claims, not make new claims, and acknowledge that whatever it does on the continent now will not serve as a basis for justifying or bolstering any claim the country may have.

The argument for such a conceptual approach to Jerusalem seems to me far stronger morally than the argument for it with respect to Antarctica. Antarctica claims, after all, are matters of control and potential exploitation of resources. They are matters, to some degree, of national grandeur. I met an Australian woman once who proudly told me that her country was the largest nation in the world; when I pointed out that Russia, Canada, the United States, China and Brazil were all larger than Australia, she responded sagely that I was not accounting for "our territories in Antarctica"---which was certainly true enough. Antarctic claims are also about preventing other countries from making viable territorial claims on the continent. If everyone's doing it, you don't want to be the one player left in the cold when the spoils get divvied up.

Jerusalem claims are different. Asking an observant Muslim or a religious Jew to renounce claims to Jerusalem is demanding a form of blasphemy from either. And even for a secular Palestinian or Israeli, asking for a renunciation of sovereignty is asking for a kind of national self-denial that seems to me unrealistic, even inhumane. The city absolutely must be shared; there is no conceivable other choice for its governance. But it may be asking too much of either side to demand a recognition of a sovereignty over the Old City---a moral and legal entitlement to rule it---other than that of one's own side.

I don't think it's too much, however, to ask either side to, while retaining their respective claims, agree not to assert the right to all of what each reasonably considers to be due it either nationally or religiously. This approach would allow each side to claim sovereignty over all of Jerusalem---or, at least, over all of the disputed portions of the city---but to agree (a) not to make any new claims with respect to the city, (b) not to assert their retained sovereign authority against the exercise of a set of mutually-agreed-upon governmental activities of the other side---which is to say the running of the other side's national capital, (c) not to assert their retained sovereign authority with respect to the holy sites beyond whatever arrangements the sides can mutually agree to as to the sites' administration, and (d) not to assert their retained sovereign authority with respect to municipal administration of the city beyond what the two sides agree to. To be clear, this does not answer the million difficult questions about the substance of what administrative arrangements the sides might agree to for these many thorny questions. And there is no end of devils in those details. Nor does this approach address the question---on which both sides have open doubts---about whether the other can be trusted to live up to any agreement it signs with respect to the city. So to be clear here, I'm emphatically not advancing a plan here for the disposition of Jerusalem's final status.

Rather, I'm trying to imagine the answer to a single, high-altitude question: If we accept Erin's point that the concept of sovereignty and ownership is of very limited theoretical and legal value in thinking about how to resolve Jerusalem's status, is there some more useful conceptual model on which to build the sort of practical arrangements that would be the life of any agreement in practice?

This brings me to the Talmud.

Because there is actually another place in law---one admittedly very far from modern treaty law---where this idea of not asking people to give up their claims but merely asking them to give up the assertion of their claims shows up in a fashion that bears a certain conceptual relationship to the Antarctic idea I'm taking about here. Tractate Bava Metzia, one of the many books of the Babylonian Talmud, does not open with soaring spiritual rhetoric. There's no "In the beginning" here; the word is not made flesh; there's no invocation of "the name of Allah, the Gracious, the Merciful." Tractate Bava Metzia, rather, opens as follows with a very technical dispute resolution question: "Two persons, who hold a garment, and each of them claims he has found it, or that the whole belongs to him, (in such a case) each of them shall take an oath that no less than a half belongs to him, and then its value shall be divided."

I am very far from a Talmud scholar---very far, indeed. But when I put this passage together with Erin's observation, with the Antarctic Treaty, and with what I heard from our nameless interlocutor this week, there seems to me a major common thread. Like the Antarctic Treaty, the Talmud here does not require that either side withdraw his claim to the disputed garment. It does not ask that either side acknowledge that he is not entitled to all of what he claims to have found. Rather, it identifies the one possible oath that both sides can take that is (a) consistent with his own narrative of the dispute, (b) consisent with the other side's oath, (c) symmetrical with respect to other disputant's oath and thus offering resolution of the dispute on the basis of asking the same of both sides, and (d) thus providing a basis for a resolution in which neither side gives ground in terms of his core view but both sides give ground in practice to reach a workable disposition.

So let us do a little thought experiment and see if changing a few words in that passage from Bava Metzia might, as Erin puts it, explode sovereignty in Jerusalem and import a little Antarctic thinking: "Two people, who hold a city, and each of them claims he has found it, or that the whole belongs to him, in such a case each people shall take an oath that no less than half belongs to it, and then the city's administration shall be divided."

It sounds pretty good to me.