On the 30th of November, 2017, the General Assembly (GA) of the United Nations (UN) adopted a resolution on Jerusalem (A/RES/72/15). Below, some of the presuppositions and findings of the GA on keys issues are subjected to closer scrutiny, including the Temple Mount and Jerusalem as the capital of Israel. This resolution was adopted with the votes of 151 Member States in favour, including all Members of the EU. Only six States voted against: Canada, Micronesia, Israel, Marshall Islands, Nauru and the US. There were nine abstentions.

Legal foundations

It is worthwhile to mention the sources referred to in the Resolution on which its findings are based: GA resolutions 181 (II), 36/120 E, 56/31 and ES-10/15, Security Council (SC) resolutions 478 (1980) and 2334 (2016), and finally the Advisory Opinion of the International Court of Justice (ICJ) of the 9th of July, 2004. What all these sources have in common is that they are not binding under international law. It is clear from the UN Charter that GA resolutions with external effect do not, as such, create legal obligations. The same is true for SC resolutions that are not based on its Chapter VII, including the resolutions mentioned above. Finally, Advisory Opinions of the ICJ are, unlike its judgments, not binding. That already shows that the Resolution is based on shaky grounds. This will become all the clearer as we take a look at its presuppositions and findings.

 “Israel, the occupying power”

Presupposition of the Resolution is that Israel is an occupying power, and Jerusalem an occupied territory. The Resolution suggests that this qualification applies not only to “East Jerusalem”, but to the City of Jerusalem, as a whole. The first operative paragraph declares that ‘any actions taken by Israel, the occupying Power, to impose its laws, jurisdiction and administration on the Holy City of Jerusalem are illegal, and therefore null and void and have no validity whatsoever’.[1] This observation is incorrect. Jerusalem, as a whole, is part of the territory under the Mandate for Palestine, destined as the location of the Jewish national home. The purpose of the Mandate was to lead the Jewish people to independence in that territory. This was partly realized when Israel proclaimed its independence on the 14th of May, 1948. Israel was attacked immediately by five Arab States, including (Trans-)Jordan, which captured the eastern part of Jerusalem, including the Old City. It expelled all Jews and destructed the synagogues. Contrary to the provisions of the Armistice Agreement between Israel and (Trans-)Jordan (1949), after the cessation of hostilities, Jews were not allowed to pray at the Western Wall (Kotel) in the Old City. Subsequently, in 1950, Jerusalem was annexed by (Trans-)Jordan, in violation of international law. As a result of the Six Day War in 1967, when Jordan had attacked Israel again, Israel reunified Jerusalem, restoring the situation as it existed under the Mandate. The Knesset adopted legislation to ensure the application of Israeli law in both parts of the city. Since 1967, free access to holy places of Jews, Christians and Muslims is guaranteed by the Israeli government. It should be kept in mind that according to Article 80 of the UN Charter, the rights of the Jewish people under the Mandate should be respected, also in Jerusalem. In addition, we should point out the principle of uti possidetis juris, determining that the borders of a new State on becoming independent are the pre-existing administrative borders. As a consequence, the entire Mandate territory, including Jerusalem as a whole, became the territory of Israel.[2]

“Illegal settlement activities”

In its preambular considerations, the GA Resolution refers to “illegal settlement activities” around Jerusalem. This ignores rights under the Mandate, such as the right for the Jewish people to immigrate and to “close settlement by Jews on the land, including State lands and waste lands not required for public purposes” (Article 6 of the Mandate for Palestine). Therefore, it is not justified to disqualify as illegal the settlement activities – as is clear from the reference to the “so-called E-1 plan” – east of Jerusalem (near Ma’ale Adumim).

The Temple Mount

The GA Resolution does not refer to the Temple Mount, nor to the Hebrew Har HaBayit. Instead, it only uses the Arab expression Haram al-Sharif. In doing so, the GA follows the example of UNESCO-institutions which, in various resolutions, have ignored the prominent place in Jewish history of the Temple Mount: the location of the Binding of Isaac, and of the First and the Second Temple. The GA seems to accept the Palestinian narrative, which fails to include the relationship between the Jewish people with the land of Israel and Jerusalem. It is worth noting the fourth operative paragraph regarding the concerns of the GA about the status quo at the holy places of Jerusalem, considering that history has shown that only under Israeli sovereignty the free access to the holy places of Judaism, Christianity and Islam has been guaranteed, as well as the freedom of religion in general. Many of the sponsors and supporters of the Resolution, Islamic and non-Islamic, do not recognize freedom of religion at all.

Jerusalem the capital of Israel

The second preambular paragraph of the GA Resolution refers explicitly to the Basic Law on Jerusalem and the proclamation of Jerusalem as the capital of Israel as measures that are null and void. The GA has singled out only one of the UN Member States and subjected it to criticism for the choice of its capital. That Member State is Israel. There is no example of a similar treatment of another Member State about such a choice, which, according to international law, without a doubt belongs to the sovereign powers of a State. The approach of the GA in this Resolution is one of the numerous examples within UN practice of singling out the Jewish State and subjecting it to special standards.


It has been shown that the GA Resolution on Jerusalem contravenes international law on various key points. It is therefore disturbing to note the large number of Member States that have voted in favour, especially the Member States of the EU, that, in general, vociferously defend the rule of law.


[1] Emphasis added.

[2] Abraham Bell & Eugene Kontorovich “Palestine, Uti Possidetis Juris and the Borders of Israel” Arizona Law Review, Vol. 58, 633 [2016].