501.BB Palestine/8–1149
Memorandum by the Deputy Assistant Secretary of State for United Nations Affairs (Sandifer) to Mr. James W. Barco, at Lausanne
Subject: Comments on Preliminary Draft of Declaration Concerning the Holy Places, Religious Buildings, and Sites in Palestine Outside the Jerusalem Area (Com.Jer./W.29, 26 July 1949).
The preliminary draft of a declaration to be made by Israel and the Arab state concerning the Holy Places, religious buildings and sites in Palestine outside the Jerusalem area (Com.Jer./W.29, 26 July 1949) has been examined by officers of UNA, L/P and NEA. The following comments and suggestions are the result of this joint examination and are transmitted to you for your assistance in further discussions on this subject.
Your letter of July 27, 19491 notes that the Jerusalem Committee intends to submit a preliminary draft of the Declaration to the Israeli Delegation for its comments. It is assumed that the views of the Arab Delegation will likewise be sought.
There follows a paragraph by paragraph comment on the draft Declaration:
Paragraph 1.
It is suggested that the reference to “freedom of conscience” be omitted from this paragraph. A guarantee of freedom of conscience is a matter which does not relate particularly to the question of the Holy Places and access to them. Accordingly it is not believed necessary for the purposes of this Declaration. It will be observed that freedom of conscience is not referred to in Paragraph 7 of the Assembly Resolution of December 11, 1948. Moreover, freedom of conscience is not susceptible of limitation and could not therefore be made “subject to the maintenance of public order”, as it is in the present draft.
Paragraph 2.
It is suggested that the second sentence of this paragraph be deleted. The basic obligation is contained in the first sentence. The second sentence indicates only one of many possible forms that a derogation from this obligation might take. It is not believed desirable to emphasize in the Declaration the matter of “the construction of buildings in unsuitable proximity” and so possibly to detract from the broad character of the obligation stated in the first sentence of the paragraph.
[Page 1296]Paragraph 3.
The text of this paragraph seems satisfactory. As a matter of clarification, it is the understanding of the Department that the use of the date May 15, 1948 in this paragraph and in paragraph 5 has the effect of preserving the status quo under the Mandate with regard to the subjects indicated, and does not have the effect of including any new provisions which may have been instituted on 15 May 1948 immediately following the termination of the Mandate.
Paragraph 4.
The following rewording is suggested for this paragraph:
“The Government of _______ undertakes to guarantee freedom of access to the Holy Places, religious buildings and sites within its territory and, pursuant to this undertaking, will guarantee rights of entry and of transit to ministers and pilgrims of the Christian, Jewish and Moslem religions, without distinction as to nationality, subject only to considerations of national security and to the maintenance of public order.”
Paragraph 5.
No comment except for the observation made in connection with paragraph 3.
Paragraph 6.
The following revision of paragraph 6 is suggested:
“6. The Government of ____________ undertakes to accept and to give effect to such recommendations as may be made by the United Nations Commissioner, provided for in the Instrument establishing a permanent international regime for the Jerusalem area, with respect to the application and observance of this Declaration. The Government of _________ further undertakes to grant the United Nations Commissioner the privileges and facilities necessary for the performance of his functions.”
Comment:
It was felt that the preliminary draft of paragraph 6 contained in Com.Jer./W.29 did not state with sufficient clarity the authority of United Nations Commissioner with respect to Holy Places outside Jerusalem and his relationship to the two states concerned in the implementation of the Declaration. It was felt that an undertaking by the Governments to “cooperate actively” was not sufficient and that, as regards the protection of Holy Places which is the subject of the Declaration, the two Governments should be prepared to agree to give effect to recommendations of the United Nations Commissioner.
For your information, the Department contemplates the possibility that, in the resolution approving the Declaration, the General Assembly [Page 1297] would instruct the United Nations Commissioner to report periodically on the implementation of the Declaration. This would insure that violations of the obligations assumed in the Declaration could be brought to the attention of the General Assembly by the United Nations Commissioner. It is believed that existence of such a provision would in itself promote the observance of the Declaration and that Assembly discussion of reports of the United Nations Commissioner would be an additional sanction.
- Not found in Department of State files.↩