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The requirement that free access to religious sites in the Land of Israel be protected is practically part of customary international law. The Palastine Mandate, which was approved by the League of Nations and was the first real step by the international community towards the creation of the State of Israel and developing Palestine required that the Mandatory be absolutely responsible "in connection with the Holy Places and religious buildings or sites in Palestine, including that of preserving existing rights and of securing free access to the Holy Places, religious buildings and sites and the free exercise of worship" (Palestine Mandate (1922) Art. 13).
The Mandate also provided protection for freedom of worship which includes the right to visit holy sites for religious purposes. It states that "The Mandatory shall see that complete freedom of conscience and the free exercise of all forms of worship, subject only to the maintenance of public order and morals, are ensured to all" (Art. 15). This language was mirrored and expanded in the Palestine Order-in-Council (1922) which functioned as the Constitution of the Mandatory Regime and still has the force of law in the State of Israel. It states that "All persons in Palestine shall enjoy full liberty of conscience, and the free exercise of their forms of worship subject only to the maintenance of public order and morals" ( Art. 83).
In addition the Mandate also stated that "No discrimination of any kind shall be made between the inhabitants of Palestine on the ground of race, religion or language" (Art. 15). Thus barring Jews from Jewish Holy sites violates this clause of the Mandate as well.
The League of Nations considered freedom of access to Holy sites so important that it called for in Article 14 of the Mandate the creation of a special commission, to "define and determine the rights and claims in connection with the Holy Places and the rights and claims relating to the different religious communities in Palestine." (The commission was never set up).
The Declaration of the Establishment of the State of Israel (1 LSI 1, 1948), Israel's first law, reaffirmed the guarantee of freedom of access. The Declaration states that the State of Israel "will guarantee freedom of religion, conscience . . . it will safeguard the Holy Places of all religions."
The Declaration of the Establishment of the State of Israel (1 LSI 1, 1948), Israel's first law, reaffirmed the guarantee of freedom of access. The Declaration states that the State of Israel "will guarantee freedom of religion, conscience . . . it will safeguard the Holy Places of all religions."
