4 The International Law Sources Relevant to the Status of Jerusalem: in Particular, the Principle of Non-Recognition of Territorial Acquisitions by the Use of Armed Force
Going back to the proceedings concerning Jerusalem before the Tribunal of Rome, the abovementioned UN resolutions were pivotal to the Tribunal’s finding, in its Order No. 31253, that “international law does not recognize Jerusalem as the capital of Israel”. The Tribunal expressly referred to the abovementioned Security Council Resolution 478 of 20 August 1980 and General Assembly Resolution es-10/19 (2017) and considered both to be sources of binding treaty commitments. By doing so, it showed a very limited familiarity with international legal sources. Notably, the Tribunal failed to consider that all of the aforementioned Security Council resolutions – notably including Resolutions 242 (1967) and 478 (1980) – have been adopted under Chapter vi of the UN Charter. Chapter vi resolutions are considered by the majority of scholars not to be legally binding. General Assembly resolutions, for that matter, are undisputedly considered not to produce binding obligations upon the States voting in favor. Flaws in the identification of the relevant legal sources were rightly highlighted in the Tribunal’s second Order.
Still, what stroke us the most in the Tribunal’s first Order is an absence of any reference whatsoever to custom as the main – or arguably the sole – source of general international law binding as such on all States, independently of any normative intervention by the UN. Yet, Article 10(1) of the Italian constitution roundly states that the “Italian legal system conforms to the generally recognised principles of international law”. For their part, scholars and case law reiterate on every occasion that Article 10 refers specifically to unwritten international law, namely custom and general principles of law. Finally, any Italian textbook will agree that customary international law enjoys a constitutional rank in the hierarchy of the Italian sources of law, precisely because these norms are referred to by a constitutional norm. The Tribunal’s failure to mention or consider customary sources is all the more perplexing insofar as the whole episode revolved, in fact, around a well-known principle of customary international law, namely the obligation of non-recognition of territorial acquisition by armed force and/or in violation of the right of peoples to self-determination.
The general duty of non-recognition has been enshrined in the Articles on the Responsibility of States for Internationally Wrongful Acts (“arsiwa”), adopted in 2001 by the UN International Law Commission (“ilc”). More specifically, it has been placed in Chapter III of the arsiwa, which deals with “[s]erious breaches of obligations under peremptory norms of general international law”. Peremptory norms are quite a controversial category both in international and domestic law. However, the ilc chose it as a suitably evocative terminology to accommodate variant definitions of international obligations protecting fundamental values of the international community. The general idea behind the ilc’s codification is threefold: a) there exist international substantive norms of a fundamental character “by reason of the importance of the rights involved”. These norms “prohibit what has come to be seen as intolerable because of the threat it presents to the survival of States and their peoples and the most basic human rights”; b) peremptory norms have a pronounced collective nature. Indeed, obligations stemming from those norms are owed to the international community as a whole, and every State has a legal interest in their protection; c) serious breaches of such obligations can attract additional consequences, not only for the responsible State but for all other States.
The collective reactions taken by States and international organisations against breaches of peremptory norms may take various forms. For instance, the arsiwa provide that all States are entitled to invoke responsibility for such breaches. The customary obligation not to recognise as lawful a situation created by a serious breach of peremptory norms of general international law is another of such forms. According to Article 41(1) of the arsiwa: “States shall cooperate to bring to an end through lawful means any serious breach within the meaning of Article 40”. In turn, Article 42(2) specifies that “[n]o State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation”.
Both cooperation and non-recognition remain concepts of a general nature to be further developed in the practice, mainly through UN resolutions and judicial precedents. So far, they have been mostly applied in relation to territories illegally seized and detained using armed force, with a view to annexing or politically controlling them. These wrongful acts are unanimously considered as serious breaches of peremptory norms. The same holds true for foreign military occupation of territories in violation of the right of peoples to self-determination, especially invoked by inhabitants of European overseas empires seeking independence from former colonial powers. Resort to armed force to deny self-determination may in turn degenerate into the commission of gross violations of human rights. Marina Mancini, in her recent seminal book, has demonstrated that, as a matter of customary international law, the obligation of non-recognition undoubtedly encompasses States and other territorial acquisitions resulting from the use of armed force, the violation of the right of peoples to self-determination, and the practice of racial discrimination. From this perspective, the duty of non-recognition seems just a modality of the broader obligation to cooperate to bring foreign occupation to an end.
Basically, the obligation of non-recognition aims to prevent de facto occupation from becoming a legitimate acquisition on the simple passage of time. In other words, it inhibits effectiveness from turning into validity. As the icj put it in the 2004 Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, “the construction of the wall and its associated regime [could] create a ‘fait accompli’ on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to a de facto annexation”. Non-recognition echoes similar legal devices existing in the private law tradition. Strictly speaking, it is not a countermeasure, which specifically consists in the violation of international obligations owed to the wrongdoer State. It targets the situation per semore than the responsible State, which could, of course, also be targeted by genuine countermeasures at the same time. Cessation of the wrongful occupation is rather achieved by collectively and persistently opposing the legality of a forcible territorial annexation. During this united social response, the final status of the territory remains provisional and uncertain until a legally consistent solution is finally agreed. This process may culminate in the straightforward restitution of the occupied territories, or the conclusion of an ad hoc treaty regulating all pending questions between the parties.
The role of UN organs has proved fundamental to ensure that one of these results is finally reached. Throughout the past few decades, the General Assembly and the Security Council have constantly stressed the illegality of forcible annexation and reiterated the obligation of foreign States to withdraw from the occupied territory. On the other hand, several resolutions by the main UN organs expressing the opinio juris of the international community have reinforced the customary law nature of the obligation of non-recognition. Some of these resolutions address the generality of States and are thus drafted in an abstract manner; others concern the occupation of specific territories and demand the intervening power to cease the violation by withdrawing from the territory in question.
Among the acts belonging to the first category, we may include the still relevant Friendly Relations Declarations adopted by the General Assembly on 24 October 1970. The principle dealing with the prohibition of the use of force makes clear that “[n]o territorial acquisition resulting from the threat or use of force shall be recognized as legal”. In relation to the principle of self-determination of peoples, the Declaration proclaims that, albeit forciblly occupied by a foreign Power, “[t]he territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination”.
As regards the liberation of a specific territory from foreign domination, there is a long and consistent list of UN resolutions condemning such a domination, asking for withdrawal, and recommending or imposing on all States the obligation not to recognise any territorial acquisition by force. This list includes, for example, the proclamation of the Turkish Republic of Northern Cyprus created in the North-eastern part of the island following a military invasion by the Turkish army in 1974; the annexation of Kuwait by Iraq which was declared null and void by Security Council Resolution 622 of 9 August 1990; the condemnation by the Security Council of the declaration of independence made by a racist minority in Rhodesia in 1965; the longstanding dispute between the UN and South Africa over the illegal occupation of Namibia and, more recently, the General Assembly’s call not to recognize any alteration of the status of Crimea following the invasion of the Ukrainian peninsula by the Russian Federation in 2014.
What kind of measures are mostly adopted to avoid that passage of time might remedy the illegality of a territorial occupation by the use force? These measures may include, for example, refusal to establish diplomatic or consular relations with the State born from an illegally occupied territory. In the 1971 Advisory Opinion on Namibia, the icj mentioned the obligation by all States to “abstain from entering into economic or other form of relations with South Africa in all cases in which the Government of South Africa purports to act on behalf of or concerning Namibia”. In this case, the Court announced the existence of a customary international rule, seemingly as a corollary of the already in force, but more generic, obligation of non-recognition. This rule has since been observed in relation to similar cases involving territories occupied by force or in violation of the right to self-determination. More recently, international law practice has found new ways to prevent de facto occupation from becoming permanent. Instead of reiterating individually and collectively the illegality of violent annexations, States directly entertain relations with the entities aspiring to independence. Thus, the political representatives of these entities negotiate and conclude economic agreements with foreign States and are sometimes allowed to open so-called embassies to interact with the accrediting State on a permanent basis. The opposite situation has also occurred, namely the opening of consular offices on annexed territories to entertain international relations directly with occupied local population.
Massimo Iovane, giurista