by David Hughes
[David Hughes is a Grotius Research Scholar at the University of Michigan, Law School and a PhD Candidate at Osgoode Hall Law School in Toronto.]
On 6 December, President Trump signed a Proclamation recognizing Jerusalem as Israel’s capital and ordering the relocation of the American Embassy from Tel Aviv. The announcement reflects the long-standing will of Congress. It is consistent with past electoral promises. It is, perhaps, the Trump Administration’s first major policy statement to gain the Democratic leadership’s approval.
Despite constant assurances, past executive branches have withheld formal recognition and deferred the Embassy’s relocation. The Trump Administration’s Jerusalem pronouncement disrupts this orthodoxy. It contradicts the longstanding position of the international community, who since the termination of the British Mandate of Palestine, have proposed internationalization, provided de facto recognition, and prioritized negotiations to settle – but never confer – Jerusalem’s status.
The Administration’s declaration was denounced by an array of actors. A consistent refrain emerged. The actions of the United States violated international law. Palestinian Authority President Mahmoud Abbas stated that the decision was a “flagrant violation.” The Arab League noted the danger of such legal disregard. France’s Ambassador to the UN called upon the Americans to “clarify the compatibility of [the Jerusalem declaration] with [the] common legal base on which all peace efforts are built.”
The Presidential Proclamation, however, ensured legal latitude. The edict claimed that “the United States continues to take no position on any final status issues… [and that] the specific boundaries of Israeli sovereignty in Jerusalem are subject to final status negotiations between the parties.”
In late January 2018, President Trump met with Israeli Prime Minister Benjamin Netanyahu in Davos. The President declared, “they never got past Jerusalem. We took it off the table. We don’t have to talk about it anymore.” The Administration’s assertions that the Proclamation was consistent with support for a negotiated agreement appeared doubtful. The legal inoculation weakened. Again, the Palestinian leadership reiterated calls of legal disregard. The General Assembly opposed the Trump Administration’s policy shift. Assertions that the Jerusalem declaration violates international law, however, failed to provide legal reasoning. This post briefly explores the legal questions raised by the Administration’s Jerusalem declaration from the perspective of non-recognition obligations.
The duty of non-recognition
The duty not to recognize situations created by certain unlawful acts is an established tenet of international law. It is the necessary corollary of the principle ex injuria non oritur. Article 41(2) of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) requires that, “no State shall recognize as lawful a situation created by a serious breach [of a peremptory norm of general international law].” The duty of non-recognition is thus qualified. It is understood to apply in response to a serious breach of a jus cogens norm and is only applicable when the serious breach facilitates a legal claim of status or entitlement by the violating State. As Martin Dawidowicz explains, this creates a situation that “all States are obligated not to recognize as lawful.” Most often, Dawidowicz recognizes, the ILC Commentaries and state practice link the triggering breach to “territorial acquisitions brought about or maintained by the threat or use of force (p.678).”
Article 41(2)’s broad formulation has caused scholars to question whether “customary international law knows of a general duty of non-recognition of all situations created by a serious breach of jus cogens (p.102).” Though several query the scope and content of the obligation when applied to certain jus cogens breaches, both the ICJ in its Wall Opinion (para.87) and the ILC contend (p.114) that the duty not to recognize forceful territorial acquisitions reflects customary international law. Stefan Talman notes, beginning with the 1949 Draft Declaration on the Rights and Duties of States, the obligation to deny recognition of territory acquired through force possesses a long lineage (p.102-103). This has developed through consistent state practice and is reiterated within many international legal instruments.
Prominently, the 1970 Friendly Relations Declaration (FRD) stated that, “no territorial acquisition resulting from the threat or use of force shall be recognized as legal.” The ICL Commentaries on the Draft Articles on State Responsibility note the unequivocal nature of this obligation that derived from U.S. Secretary of State Henry Stimson’s response to the 1932 Manchurian crisis and has been recognized by the ICJ in its Nicaragua decision as possessing unanimous state approval (para.188).
What is the applicable legal standard?
The Jerusalem declaration raises several questions concerning the non-recognition obligation. James Crawford explains that “when the illegality invoked is substantial, and in particular when it involves a peremptory norm of international law, States have a duty under customary international law not to recognize the act as legal. The norm in question must either be one of the limited number of peremptory norms or…a substantive rule of general international law, so that the illegality is one that involves the international community as a whole and not just particular States (p.160).”
This presents three questions that bear upon the legal consequences of the Trump Proclamation: (i) Is the Israeli claim to Jerusalem facilitated by an unlawful act? (ii) If so, was this situation created by a serious jus cogens breach? (iii) And did the Trump Administration’s declaration constitute recognition?
Is the Israeli claim to Jerusalem facilitated by an unlawful act?
Determining whether a non-recognition obligation has arisen is interwoven with the contestations of Jerusalem’s legal status that began during the Mandate-era and continue to this day. In 1947, Palestine’s proposed partition (Part III) sought to establish Jerusalem as a corpus separatum under UN administration. The plan was accepted by Palestine’s Jewish community but dismissed by the Arab delegations. Upon the establishment of Israeli statehood and the immediate declaration of war by five neighbouring states, Jerusalem was divided – East and West – between Jordan and the nascent State of Israel. A new map was drawn along the 1949 Armistice border. This increased Israel’s territorial allotment and became the starting point for efforts to secure a negotiated agreement with the Palestinian population. Though the international community formally favoured internationalization, Israel began relocating governmental institutions to the City. In December 1949, Israel declared Jerusalem as its capital.
A fragile status quo was disrupted in 1967 when, following the Six Day war, Israel gained control of Jerusalem’s eastern sector (along with the rest of the West Bank, the Gaza Strip, the Golan Heights, and the Sinai Peninsula). Immediately, Israel expanded Jerusalem’s municipal boundaries and applied its jurisdiction throughout the newly defined City. The General Assembly declared these initiatives invalid and called upon Israel to rescind measures intended to alter Jerusalem’s status. Despite proclaiming Jerusalem’s liberation and reunification, Israeli diplomats insisted that the imposed measures did not constitute annexation.
In 1980, the Knesset passed a Basic Law declaring “Jerusalem, complete and united, the capital of Israel.” Though the legislation did not impose any practical changes, it formally acknowledged a reality that began upon Israel’s de facto annexation of East Jerusalem in 1967. Firm rebukes followed. The General Assembly called upon Israel “to withdraw completely and unconditionally from all the Palestinian and other Arab territories occupied since June 1967, including Jerusalem.” Security Council Resolution 478 declared that Israel’s claim violated international law. This prompted a process of collective non-recognition. Continuing, the Security Council called upon Member States “not to recognize the ‘basic law’ and other such actions by Israel that, as a result of this law, seek to alter the character and status of Jerusalem.” It required that “those States that have established diplomatic missions at Jerusalem to withdraw such missions…” Existing embassies left the City. Despite de facto acceptance of Israel’s claim to West Jerusalem and the separate legal treatment of the City’s two sectors, the Security Council’s call to withhold recognition received – even amongst Israel’s staunchest allies – near universal adherence.
Does this act constitute a situation created by a serious jus cogens breach?
Security Council Resolution 478 is premised upon the norm that “the acquisition of territory by force is inadmissible.” This, John Dugard recognizes, provides the principal reason justifying the non-recognition of Israel’s claim to East Jerusalem (p.113). As noted, the non-recognition obligation is contingent upon the commission of a serious breach of a peremptory norm. While the prohibition of aggression constitutes (p.85) a jus cogens norm, Israel maintains that Jerusalem’s reunification resulted from an “unprovoked Arab attack.” Despite the merits of Israel’s defensive claims, the FRD clarifies that the inadmissibility of territory acquired by force is absolute and not contingent upon assessments of jus ad bellum.
Further, Israel’s annexation of East Jerusalem may be construed separately from the underlying use of force that led Israel to assume control of the City’s eastern sector. Israel has refrained from asserting sovereign claim over the West Bank and Gaza which have instead been subject to prolonged occupation. The subsequent control of East Jerusalem – realized through annexation and governed in accordance with Israeli law – may be understood as an independent act of aggression.
Annexation is defined as “the forcible acquisition of territory by one state at the expense of another State.” The ICRC notes that “annexation amounts to an act of aggression, forbidden by international law.” This is confirmed by the General Assembly’s Resolution on the Definition of Aggression which qualifies an act of aggression as, inter alia, “any annexation by the use of force of the territory of another State or part thereof (Art. 3).”
This evokes questions regarding Palestinian statehood and whether Israeli actions – either in 1967 or in 1980 – constitute the forceful annexation of “another State or part thereof.” It is worth noting, however, that the ILC Commentaries hold that the non-recognition obligation “applies to situations created by…[the] attempted acquisition of sovereignty over territory through the denial of the right of self-determination of peoples.” This builds upon the FRD which holds that “every state has the duty to refrain from any forcible action which deprives peoples…of their right to self-determination and freedom and independence.” This principle, coupled with the longstanding prohibition on the forceful acquisition of territory, motivated the ICJ to hold in its Wall Opinion that “that all States are under an obligation not to recognize the illegal situation [arising from the construction of the separation barrier] in the Occupied Palestinian Territory, including in and around East Jerusalem (paras. 87-88, 146).”
Did the Trump Administration’s declaration constitute recognition?
The Trump Administration’s Proclamation did not reference East Jerusalem directly (either in recognition of Israel’s sovereign claim or in support of Palestinian aspirations). Though the announcement is prejudicial towards Israeli interests, initially there appeared sufficient ambiguity to fall short of formally recognizing Israel’s claim to East Jerusalem.
The ARSIWA Commentaries, however, state that Article 41(2) not only extends to formal recognition but prohibits acts that would imply recognition (p.114). In its Namibia Opinion, the ICJ held that non-recognition compels states to abstain from establishing diplomatic missions in the unlawfully acquired territory. States, the Court continued, have a positive duty to make clear [to the South African authorities] that “the maintenance of diplomatic or consular relations…does not imply any recognition of its authority [with regard to Namibia] (para. 123).”
Such implied recognition appears throughout the Proclamation and in the President’s subsequent statements. The Presidential order to relocate the Embassy appealed to the Jerusalem Embassy Act of 1995. The Act did not omit the declarative language that the Trump Administration purportedly sought to avoid. It noted that the Six Day war marked Jerusalem’s reunification and stated that the City served as Israel’s undivided capital. The Trump Administration Proclamation begins by referencing this Congressional acknowledgement and the Senate’s unanimous reaffirmation on the occasion of “the 50th anniversary of the reunification of Jerusalem.” Addressing the General Assembly, U.S. Ambassador Nikki Haley, justified the Administration’s Jerusalem declaration as in accordance with the Embassy Act.
The Proclamation notes that U.S. policy decisions are grounded in “principled realism.” The recognition of Jerusalem as Israel’s capital is presented as plain fact. Jerusalem, the President noted, “is the seat of the modern Israeli government. It is the home of the Israeli parliament, the Knesset, as well as the Israeli Supreme Court. It is the location of the official residence of the Prime Minister and the President. It is the headquarters of many government ministries.” While this is of course accurate, several governmental institutions are located in the City’s eastern sector including the Ministry of Justice and the National Headquarters of the Israel Police.
Rationalizations that cite the location of national institutions and that are grounded in the Embassy Act allude to a conception of Jerusalem that aligns with Israel’s post-1967 claim to a united City. The President’s comments in Davos – that his Proclamation took Jerusalem off the table – moves from the contention that the City’s status remains subject to negotiation and toward recognition of a situation created through the forceful acquisition of territory.
Finally, the Administration’s determination that “the United States will relocate our Embassy…from Tel Aviv to Jerusalem” further implies recognition of Israel’s claim to the united City. Associating the embassy’s location with recognition of Jerusalem’s status had initially motivated the United States to post its Ambassador away from the contested City. A 1958 despatch from the U.S. Counsel General in Jerusalem noted, “many other countries mark their respect for the internationalization resolutions by establishing embassies in Tel Aviv thus avoiding recognition of Jerusalem as the capital of Israel and, by implication, as Israel’s de facto sovereign territory.”
Though the international legal treatment of Jerusalem has moved from proposed internationalization and towards a vision determined through negotiation and shared amongst two states, the City’s status remains fiercely contested. The Trump Administration’s pronouncement raises important questions regarding non-recognition requirements and appears incompatible with the policy objectives that the obligation conveys and which the international community has pursued with near unanimity.