The UNGA’s Emergency Special Session about Resolution A/RES/ES-10/19 on Jerusalem as Israel’s Capital.
By Dr. Matthijs de Blois, Senior Fellow, thinc.
On the 21st of December 2017 the UN General Assembly (GA) again adopted a resolution on Jerusalem (A/RES/ES-10/19), within a month of its previous resolution on the same topic (A/RES/72/15). The most recent resolution came in response to the speech of the President of the United States on the 6th of December 2017, in which he recognised Jerusalem as the capital of Israel and announced the removal of the US Embassy from Tel Aviv and its relocation to Jerusalem.
A Special Emergency Session on “Illegal Israeli Actions”
It has to be noted that the resolution of the 21st of December 2017 was adopted during a meeting of the Tenth Emergency Special Session. This Session on the “Illegal Israeli actions in Occupied East Jerusalem and the rest of the Occupied Palestinian Territory” was convened for the first time in 1997 and had last met in 2009. Emergency special sessions have been made possible by Res. 377 (V) (1950) of the GA (“Uniting for Peace”) as a possibility for the GA to bypass the Security Council (SC) in cases of threats of world peace when decision-making in the SC is blocked by one of its permanent members. Apparently, it was assumed that this was here at issue.
The adoption of a similar resolution of the SC on Jerusalem was vetoed by the USA on the 18th of December 2017. Resolution A/RES/ES-10/19 was adopted with the votes of 128 Member States in favor, including 22 of the Members of the EU. Six EU states abstained. Only nine States voted against: Guatemala, Honduras, Israel, Marshall Islands, Micronesia, Nauru, Palau, Togo and the USA. There were 35 abstentions, while 21 UN Member States were not present.
Is the Special Session Justified?
It is surprising that the Tenth Emergency Special Session convened for the purpose of criticizing the American President on the issue of Jerusalem. As already mentioned, originally, the idea behind Emergency Special Sessions under the ‘Uniting for Peace’ resolution has been the urgency of a situation, threatening world peace, or on an occasion where the decision-making of the Security Council has become impossible due to a veto of a permanent member. Therefore, it is questionable how an Emergency Special Session can last for more than twenty years! It is even more curious to use it in this case on the occasion of President Trump’s speech regarding Jerusalem. What he did is simply recognize Jerusalem as the capital of Israel, which, according to Israeli law, it had been from the beginning of the existence of the State of Israel. In addition, President Trump expressed the intention to move the US embassy to Jerusalem. The President only confirmed what the American Congress enacted in 1995 in the Jerusalem Embassy Act; at that time, it was adopted with overwhelming majorities in both Houses. The wording of President Trump’s speech was moreover very cautious, leaving open the question of the future borders of Jerusalem. As such, was there really any threat to international peace? The US President simply recognized the reality both in law and in fact. Perhaps the overreaction of the GA will fuel actions that may become a threat to international peace.
Jerusalem, the Capital of Israel?
The GA expressed “its deep regret at the recent decisions concerning the status of Jerusalem”. This no doubt refers to the status of Jerusalem as the capital of Israel. It should be underlined, first of all, that the US President did not make a decision on the status of Jerusalem. The State of Israel, as a sovereign state, had decided on the status of Jerusalem and declared Jerusalem to be its capital in 1949, in 1950 and again in 1980. The American President simply recognised the sovereign decisions of Israel, which it was fully entitled to do.
Jerusalem as a whole is part of the territory under the Mandate for Palestine, destined as the location of the Jewish national home. According to Article 80 of the UN Charter, the rights of the Jewish people under the Mandate should be respected, also with regard to Jerusalem. The principle of uti possidetis juris, determining that the borders of a new State on becoming independent are the pre-existing administrative borders, points in the same direction.
The purpose of the British Mandate was to lead the Jewish people to independence in that territory. This was partly realised when Israel proclaimed its independence on the 14th of May 1948. Immediately after, Israel was attacked by five Arab States, including (Trans-)Jordan, which captured the eastern part of Jerusalem, including the Old City. As the outcome 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 Location of the Embassy
The GA “calls upon all States to refrain from the establishment of diplomatic missions in the Holy City of Jerusalem, pursuant to SC resolution 478 (1980).” This non-binding resolution is apparently the main basis of the request of the GA. Indeed, there is no binding rule of international law that could support the call of the GA.
The basic principle of international law concerning the establishment of diplomatic relations between States and of permanent diplomatic missions is, according to Article 2 of the Vienna Convention on Diplomatic Relations (1961), the mutual consent between the States concerned. Article 21 obliges the receiving State to facilitate acquisition of premises or assist in obtaining accommodation in some other way. It is clear that the Israeli government agrees with the American decision, so there are no legal impediments for relocation of the embassy to Jerusalem. According to the UN Charter, the GA has no powers at all to interfere with the sovereign decisions of both the sending and the receiving State on the location of an embassy. On the contrary, it should respect the principle of the sovereign equality of its Member States pursuant to Article 2(1) of the UN Charter.
In the light of the above, it may be deduced that the new GA resolution on Jerusalem lacks a sturdy foundation in international law and exceeds its constitutional powers under the UN Charter. Sadly, it appears to add yet another chapter to the long story of anti-Israel sentiment that has become characteristic of the UN. As mentioned above, this resolution unfortunately bears a serious risk of being used by those interested in spreading hatred, unrest and violence against Israel and the Jewish people.