USA Recognition of Jerusalem In Contrary with International Law

The Beginning of the Conflict

The status of Jerusalem is well-recognized as a long-disputed area since the British conquest of the city in November 1917, Ottoman sovereignty over Jerusalem was uncontested. Due to the presence of holy places in Jerusalem, in many respects, its status was unique because of the importance attached to it by the Allied powers that had defeated the Ottomans and claimed to have a special interest in the holy places. As a result of conflicting claims, the British government was unable to reach agreement with the League of Nations about how to handle these. Apparently, A. J. Balfour, the UK foreign secretary at the time which given a mandate to resolve the conflict, suggested to establish a League of Nations commission to look into the differing claims over Jerusalem, but his proposal is denied by U.S., Vatican, Brazil, France and other countries in the League of Nations. In other words, no agreement was reached during the British Mandate (1922–48) with regard to the holy places of Jerusalem. Significantly, the United Kingdom relinquished the Mandate on 15 May 1948 without agreement from the UN and it prevented the UN from implementing the partition plan. Consequently, sovereignty over the city continues to be disputed, and most states have held back from recognizing the sovereignty of any claimant until the dispute has been satisfactorily resolved until present day.

Trump’s Recognition over Jerusalem and its Analysis

Trump’s recognition over Jerusalem, which followed by the removal of United States (U.S) Embassy1 to Jerusalem has breached international law, considering the disputed status of Jerusalem. The legal arguments provided by U.S. Government regarding the removal of their embassy to Jerusalem is justified, considering that U.S. has act in accordance with their rights to determine establishment of their embassy in a State with whom it has diplomatic relations.2 However, Israel does not have sovereignty over any part of Jerusalem nor does any other state. Trump could have sought the agreement of Israel and the Palestinians before making the move, perhaps as part of a bold effort to encourage peace, but he did not do this.3 Accordingly, most diplomatic missions remain located in Tel Aviv, precisely because “a move to Jerusalem would imply acceptance of Israel’s establishment there of its seat of government.”4 Furthermore, the U.S. Government is also bound by the UN Security Council Resolution 478 (1980),5 which reaffirmed that the aquisition of of territory by force is inadmissible and the legally binding basis for UNSC Resolution has recognized by International Court of Justice (ICJ) in its 1971 advisory opinion on Namibia.6 Moreover, international community also recognized a general principle of international law that a States shall not acknowledge as lawful the acquisition of territory by the use of force. This principle has been confirmed in several times, such as League of Nations resolutions,7 adopted in General Assembly8 and Security Council resolutions,9 even recognized by ICJ as customary international law.10

Current Update

Presently, Palestine has brought the dispute to ICJ against U.S. Government,11 claiming that the US violated the Vienna Convention on Diplomatic Relations by moving its embassy to Israel from Tel Aviv to Jerusalem.12 In its applications, Palestine institute proceeding to the Court under Article 35(2) of the Court’s Statute13 and made specific reference to Security Council Resolution 9 (1946).14 This means the ICJ has to decide whether Palestine is a state for the purposes of its Statute before it addresses the other aspects of the case. We added that should the Court decide that Palestine is a state this could still be considered a great “victory” by Palestine even if the case does not proceed further.15

Therefore, we concluded that the Jerusalem as long-disputed conflict are unlikely will be resolved in the short time. However, we still believed that the peace will come to this holy places and only time could tell.

1 https://www.nytimes.com/2018/05/14/us/politics/trump-jerusalem-embassy-middle-east-peace.html

2 Kattan, V. (2018). Why U.S. Recognition of Jerusalem Could Be Contrary to International Law. Journal of Palestine Studies, 47(3), 72–92. doi:10.1525/jps.2018.47.3.72

3 Ibid.

4 Eileen Denza, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations, 4th ed. (Oxford, UK: Oxford University Press, 2016), p. 84

5 UN Security Council, Resolution 478, S/RES/478 (20 August 1980); adopted 14–0, with 1 abstention. U.S. abstained

6 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, pp. 16, 53, ¶ 11

7 See the League of Nations Assembly Resolution adopted on 11 March 1932 in 101 League of Nations Official Journal, Special Supplement (1932), p. 87.

8 UN General Assembly, Resolution 2625 (XXV), Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, first principle, ¶ 10

9 UN Security Council, Resolution 662 (9 August 1990)

10 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 I.C.J., p. 100, ¶ 188. See also, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J., p. 171, ¶ 87

11 https://www.ejiltalk.org/palestine-sues-the-united-states-in-the-icj-re-jerusalem-embassy/

12 https://www.icj-cij.org/files/case-related/176/176-20180928-APP-01-00-EN.pdf

13 Ibid.

14 Explained that according to paragraph 5 of Resolution 9: “All questions as to the validity or the effect of a declaration made under the terms of this resolution shall be decided by the Court.” A similar provision appears in Article 41 of the Rules of the Court

15 http://opiniojuris.org/2018/10/16/its-time-to-take-palestine-v-united-states-of-america-seriously/