olivewire.org

The Status of Jerusalem in International Law

Few cities carry as much legal weight as Jerusalem. Its streets hold competing claims — religious, national, colonial, and post-colonial — and international law has been trying to adjudicate between them for more than seventy-five years. The result is a body of resolutions, legal opinions, and diplomatic positions that, taken together, reach a clear conclusion: Jerusalem’s final status remains unresolved, no unilateral annexation of the city is lawful, and the international community has repeatedly refused to recognise Israeli sovereignty over either its eastern or western half. What follows is a plain account of how that legal framework was built, and how it has been tested.

The Corpus Separatum: Jerusalem Under the 1947 Partition Plan

The starting point is UN General Assembly Resolution 181, adopted on 29 November 1947. The resolution proposed partitioning Mandatory Palestine into an Arab state and a Jewish state, but it carved out a separate category for Jerusalem and its environs. The city was to become a corpus separatum — a “separate body” — placed under an international trusteeship administered by the United Nations Trusteeship Council for a renewable ten-year period, after which its residents would vote on a permanent arrangement.

The corpus separatum zone was not small. It extended beyond the walled Old City to include Bethlehem and the surrounding villages, covering roughly 158 square kilometres. The plan assigned neither Arab nor Jewish sovereignty over the area. It was, explicitly, international territory held in trust.

Resolution 181 was rejected by Arab states and never implemented. The 1948 war left Jerusalem divided: the western part under Israeli control, the eastern part — including the Old City and its holy sites — under Jordanian administration. But the legal baseline established by 181 did not simply dissolve. It became the reference point against which subsequent Israeli actions in the city were measured.

Occupation, Annexation, and the World’s Response: UNSC 252 and 478

Israel’s capture of East Jerusalem during the June 1967 war changed the facts on the ground with dramatic speed. Within days, Israel extended its law, jurisdiction, and administration to the eastern part of the city — a move widely understood as de facto annexation. The UN Security Council responded within the year.

Resolution 252, adopted on 21 May 1968, declared Israel’s measures to change the status of Jerusalem “invalid” and called on Israel to rescind them. It was the first of several Security Council resolutions to use that specific language of invalidity — a significant legal term, not mere diplomatic disapproval.

Israel’s formal annexation came in 1980, when the Knesset passed the Jerusalem Law, declaring the city — “complete and united” — to be the capital of Israel. The Security Council’s response was swift and unanimous in its direction. Resolution 478, adopted on 20 August 1980, determined that the Jerusalem Law was “null and void” and a violation of international law. It called on states that had established diplomatic missions in Jerusalem to withdraw them. Thirteen countries then had embassies in the city; all eventually complied.

The legal basis for these determinations rests on several pillars. The prohibition on the acquisition of territory by force, codified in Article 2(4) of the UN Charter and affirmed in Security Council Resolution 242 (1967), is central. So is the status of East Jerusalem as occupied territory under the Fourth Geneva Convention of 1949, a classification confirmed by the International Committee of the Red Cross and reiterated by the International Court of Justice in its 2004 Advisory Opinion on the Wall. The ICJ stated plainly that East Jerusalem forms part of the Occupied Palestinian Territory and that Israeli measures altering its character are contrary to international law.

The Trump Recognition and the Move to Jerusalem

For nearly four decades after Resolution 478, the diplomatic consensus held. Then, on 6 December 2017, US President Donald Trump announced that the United States recognised Jerusalem as the capital of Israel and would move its embassy there from Tel Aviv. The embassy opened in May 2018, timed to coincide with the seventieth anniversary of Israel’s establishment.

The international reaction was sharp and largely unified in opposition. The UN General Assembly convened an emergency special session and, on 21 December 2017, adopted Resolution ES-10/L.22 by a vote of 128 to 9, with 35 abstentions. The resolution declared “null and void” any decisions or actions purporting to alter the character, status, or demographic composition of Jerusalem, and called on all states to refrain from establishing diplomatic missions in the city. The United States and Israel were among the nine votes against.

The European Union, the United Kingdom, France, Germany, and virtually every other major US ally voted in favour of the General Assembly resolution or abstained — none followed Washington’s lead in recognising Jerusalem as Israel’s capital at that moment. EU foreign policy chief Federica Mogherini stated that the EU’s position remained “clear and united”: the final status of Jerusalem must be determined through negotiations. The British government confirmed it did not recognise Israeli sovereignty over Jerusalem and that the city’s status should be resolved as part of a negotiated two-state settlement.

Two countries did follow the United States in moving their embassies to Jerusalem: Guatemala, which relocated its embassy on 16 May 2018, and Honduras, which did so in 2021 before reversing the decision after a change of government — President Xiomara Castro announced in 2022 that Honduras would return its embassy to Tel Aviv. As of mid-2024, the overwhelming majority of the world’s states maintain their embassies outside Jerusalem.

What the Legal Consensus Actually Means

Legal consensus does not enforce itself. Israel continues to administer all of Jerusalem, expand settlements in the east, and present the city’s unified status as a domestic political non-issue. Palestinian residents of East Jerusalem — roughly 360,000 people, according to Israeli Central Bureau of Statistics data — hold permanent residency status rather than citizenship, a precarious designation that can be revoked and that leaves them with limited political rights in the city that international law regards as their occupied territory.

But the legal framework is not merely symbolic. It shapes the ICC’s jurisdiction — the Court’s 2021 ruling that Palestine is a state party whose territory includes East Jerusalem grounds potential war crimes investigations. It anchors the International Court of Justice proceedings brought by South Africa and the broader advisory opinion process requested by the General Assembly in 2022, which asked the ICJ to address the legal consequences of Israel’s prolonged occupation. It provides the basis on which states condition normalisation, trade agreements, and bilateral relations.

For Palestinians, the legal record on Jerusalem is not an abstraction. It is an argument — one built over decades by resolutions, court opinions, and the near-universal diplomatic practice of a world that has not, despite sustained pressure, agreed to hand the city over.

Sources

Étiqueté , , , , ,

Laisser un commentaire

Votre adresse e-mail ne sera pas publiée. Les champs obligatoires sont indiqués avec *