5 The Impact of the Duty of Non-Recognition on the International Status of Jerusalem
Let us consider now how this regime of international non-recognition developed in relation to the status of Jerusalem. It was already seen that the international community has generally rejected Israel’s post-1967 annexation of East Jerusalem. This finds ample confirmation in the practice of the UN. In particular, both the General Assembly and the Security Council have adopted important (although non-binding) resolutions to the effect that the duty of non-recognition should also apply vis-à-vis East Jerusalem.
Besides the older resolutions mentioned supra in Section 3, in more recent years we may quote some interesting resolutions restating the same idea of invalidity and non-recognition of Israeli measures aimed to annex East Jerusalem. In Resolution 2334(2016) of 23 December 2016, for example, the Security Council underlines “that it will not recognise any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than agreed by the parties through negotiations”. General Assembly Resolution 73/19 of 5 December 2018 supports a similar position. At the same time, it also suggested Member States a way to comply with the obligation of non-recognition, namely by not rendering aid and assistance to illegal settlement activities, “including not to provide Israel with any assistance to be used specifically in connection with settlements in the occupied territories”. The conclusions agreed upon by the UN political organs match with similar ideas expressed by the International Court of Justice in the 2004 Palestinian Wall Advisory Opinion. The Court stated that “all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction”.
Does this mean that, according to international law, Jerusalem is not and should not be the capital of Israel? We believe that to say so would draw too much from the above premises and, in particular, would derive unintended consequences from the duty of non-recognition.
In fact, it is important to highlight that all relevant UN resolutions make clear that the controversy over the status of the city only involves East Jerusalem, given thus for granted that its western part is now legitimately under Israeli sovereignty. Many relevant elements in the practice of the international community point to this conclusion. Most notably, the Knesset’s 1950 declaration of West Jerusalem as the capital of Israel was not met by any significance resistance and was generally “passively received” by the international community. So much so that, previously to 1967, 16 States had located their embassy in West Jerusalem. Moreover, several States expressly recognize West Jerusalem as Israel’s capital, without this recognition having received any censure from UN organs: these include, e.g., Australia, Russia and the Czech Republic. The practice of many other States may come close to an implicit recognition. As has been persuasively noted,
“as regards West Jerusalem, all foreign ambassadors, including those of Egypt and Jordan, have presented their credentials to the President in (West) Jerusalem. All of Israel’s treaties have been signed in (West) Jerusalem and all State visits, including the presidents of the United States, Russia, Egypt and China have made State visits to (West) Jerusalem. […] For the last sixty years, the UN General Assembly has not made any negative reference to Israeli sovereignty over West Jerusalem and has effectively abandoned its 1947 call for internationalizing Jerusalem”.
In sum, it is safe to say that Israeli sovereignty over West Jerusalem is now undisputed, as is its status as the capital of Israel.
It is clear from the above that the reason why the the Basic Law of 30 July 1980 has been strongly condemned by UN organs lies not its declaration of Jerusalem to be Israel’s capital per se, but rather in the fact that it declared Jerusalem the “complete and united” capital of Israel, therefore including East Jerusalem. Similar considerations apply to the recent decision by US President Donald Trump to relocate the US embassy to Israel from Tel Aviv to Jerusalem and to officially recognize Jerusalem as the capital of Israel. The reason why this decision was met with generalised condemnation from the international community is that it could amount to an implicit recognition of Israeli sovereignty over East Jerusalem. As a matter of fact, the US Proclamation’s content was ambiguously worded, recognition not being expressly limited to West Jerusalem. Moreover, it has been noted that the premises of the US embassy are (partly) located in the former no-man’s land between West and East Jerusalem, which is itself believed to constitute occupied territory.
Massimo Iovane, giurista