“All countries, big or small, strong or weak, are equal members of the United Nations”
-Nong Duc Manh
Shocked by the destruction and the horrors of the Second World War, leaders across the world had come together and founded the United Nations(UN) Organization to promote peace by upholding the international law. The UN, however, has often failed in fulfilling its objective and has been almost ineffective when faced with the violations of international law by militarily or economically strong countries. The latest of such failures can be observed in the inaction of the UN following the declaration of Palestine as the capital of Israel by the United States (US).
The US recognition of the Israeli claim over the forcibly acquired territory of Jerusalem contravenes the doctrine of non-recognition in international law which stipulates that all countries have an obligation to not recognize illegal situations. The failure of the UN to take action against the US for flouting this doctrine might encourage other countries to violate the doctrine to suit their own needs as there remains no fear of sanctions. If a considerable number of countries follow the American example and act in defiance of the doctrine of non- recognition, it will lead to the development of state practice, threatening thus the obligatory nature of the doctrine.
In November 1947, the United Nations General Assembly adopted the Palestine Partition Plan which proposed the division of the British mandate of Palestine into the independent states of Palestine for the Arabs and Israel for the Jews while the city of Jerusalem, which was claimed by both the Jews and the Arabs, was to be a ‘corpus separatum’ under the control of the UN. This plan, although accepted by the Jewish representatives was rejected by the Arabs, who called it illegal.
Following the Israeli declaration of independence in Palestine in May 1948, the Arab countries attacked Israel. An armistice was signed in 1949 in which Israel and Jordan recognized each other’s de facto control over the Western and the Eastern parts of Jerusalem respectively. While the hostilities were going on, the UN reaffirmed its position on the internationalization of Jerusalem, but the UN resolution was ignored both by Israel and the Arab countries. In 1950, Israel extended its jurisdiction to the part of Jerusalem which it had occupied, and on 23 January 1950, Israel declared Jerusalem as its capital.
During the war of 1967, Israel occupied East Jerusalem and the West Bank. Israel has-since then- taken a number of legislative and administrative measures to change the status of Jerusalem and to make it part of the Israeli territory, but all these measures have been declared null and void by both the Security Council as well as the General Assembly in various resolutions. The Security Council Resolution 252(1968) declared “all legislative and administrative measures and actions taken by Israel, including expropriation of land and properties thereon, which tend to change the legal status of Jerusalem are invalid and cannot change that status”. Israel was urgently called upon “to rescind all such measures already taken and to desist forthwith from taking any further action which tend to change the status of Jerusalem”.
In 1980, Israel passed a law declaring “Jerusalem, complete and united, is the capital of Israel”. The Security Council in Resolution 476(1980) called on Israel to abide by the Security Council resolutions and to stop persisting policy and measures affecting the status of the holy city. Following Israel’s non-compliance, the Security Council adopted Resolution 478(1980) reaffirming its previous position and asking all member states to move their diplomatic missions out of the city of Jerusalem.
Over the years, the position of the UN on the Jerusalem issue has remained the same. In 2000, the fifty-fifth session of the UN revisited the Jerusalem question and stated that the decision of Israel to impose its jurisdiction on the city of Jerusalem was “illegal and therefore null and void”.
All countries have so long adhered to the Security Council Resolution 478 and maintained their diplomatic missions to Israel in Tel Aviv. The United States(US), however, has recently announced its decision to move its embassy from Tel Aviv to Jerusalem and has recognized the Israeli claim over Jerusalem in a move questioned and criticized by the international community.
UN Response to the US Declaration
A number of nations including Britain and France requested an emergency meeting of the UN Security Council where 14 out of 15 countries condemned Trump’s decision, arguing that it was a violation of international law. The resolution calling upon the US to withdraw the recognition was vetoed by the US, for a tally of 14-1.
The issue was raised in the General Assembly, which voted 128-9 with 35 abstentions to condemn the US decision and to prohibit other states from setting up diplomatic offices in the city of Jerusalem.
The decision, however, had no impact on the US, which remained firm in its decision. The US ambassador to the UN made it clear that the US will move its embassy to Jerusalem and the vote in the UN will make no difference to that.
The effect of the US stance on the doctrine of non-recognition:
“Recognition” of a state is the legal acknowledgment of the factual state of affairs. The role of non-recognition as an instrument of sanction and a method of protecting the wronged inhabitants of a territory is well-established in international law. The Stimson Doctrine, named after Henry L.Stimson, the US Secretary of state who first proposed it after the Japanese invasion of the Chinese territory in 1931, stipulates that states have an obligation under the international law to not recognize illegal situations. The doctrine is a manifestation of the maxim “ex injuria jus non oritur” (unjust acts cannot create law). Although this doctrine did not become an important part of state practice before the Second World War, it is now well-established as a principle of international law and is included in the draft Declaration on the Rights and Duties of States(1949) as well as the Declaration on the principles of international law,1970.
It is quite ironic to note that the US, the strongest member of the UN both economically as well as militarily, has forsaken the application of the non-recognition doctrine in the present case. By recognising Jerusalem as the capital of Israel, the US has contravened a well-established principle of international law, which had been proposed by the US itself and acted against a number of resolutions of the UN Security Council as well as the General Assembly. The doctrine of non-recognition requires that no country recognizes the illegal Israeli claim over Jerusalem, and the US recognition of Jerusalem as the capital of Israel is thus in stark contravention to the doctrine.
The US recognition of Jerusalem as the Israeli capital also flouts Security Council Resolution 480(1978) and by acting against the resolution, the US has acted against Article 25 of the UN Charter. As no action has been taken against the US for contravening established principles of international law, we are compelled to doubt the binding nature of international law, particularly regarding the principle of non-recognition.
It can clearly be inferred that the Security Council is powerless against any of its permanent members because any resolution against a permanent member will be vetoed. The US also showed that its position as the economically strongest nation and the largest contributor to the UN funds allows it to ignore international law and the UN. Following the US example, other economically and militarily strong states might be tempted to violate the principles of international law in order to secure their own ends as the fear of sanctions being imposed by other states for violating international law is eliminated, or at least, diminished substantially.
The possible solution to this problem is a stronger commitment by all states to upholding international law. Every state action is a step towards the creation of state practice. When the US recognized the Israeli claim over Jerusalem and most other states condemned the US, it led to the creation of state practice on both sides, thus leading to a dichotomy of state practice. If a considerable number of states follow the US, the Stimson doctrine might become optional and might lose its established obligatory nature. In USA v Nicaragua, the International Court of Justice explained that for a new customary rule to be formed, “either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is evidence of a belief that the practice is rendered obligatory by the existence of a rule of law requiring it”. If no action is taken against the US for flouting the doctrine of non-recognition and a number of countries support the US action, a customary rule in contravention to the doctrine of non-recognition might emerge which would seriously threaten the obligatory nature of the doctrine. Thus, in order to ensure that the doctrine of non-recognition remains obligatory, the UN and other states should take steps against the US in the form of sanctions or otherwise to ensure that all countries, irrespective of economic or military strength are bound by international law.