ex injuria ius non oritur? the u.s. embassy in jerusalem

Ex injuria ius non oritur?

The U.S. Embassy in Jerusalem –

legal implications in Public International Law

By Hannah Maria Rahel Keller

Mail: [email protected]

Student number: 13345907

Mastertrack: Public International Law (International and European Law)

Supervisor: Dr. Annemarieke Künzli

Submission date: 30 June 2021

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Abstract

This thesis examines the question if the U.S. violated public international law by relocating its

embassy to Jerusalem. Therefore, it will be asked whether duties of non-recognition regarding

the holy city exist. Firstly, an overview over the concept of non-recognition will be given. The

author then argues that duties of non-recognition exist, because Israel violated public

international law: East Jerusalem is occupied, and Israel violates the right to self-

determination of the Palestinian people. The concrete content of the duties of recognition is

determined by UN Resolutions, customary international law and the ICJ. Further the author

argues that the U.S. has violated a duty of non-recognition of Jerusalem as capital of Israel,

because the U.S. has recognised the entire city of Jerusalem as capital of Israel. The law of

international responsibility is the main regime to assess the consequences of this breach of

international law.

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Index

I. Introduction ......................................................................................................................... 4

II. The concept of non-recognition .......................................................................................... 5

1. Recognition as a classical question of statehood ............................................................ 6

2. Non-recognition in several contexts ................................................................................ 8

III. The reason for a duty of non-recognition ......................................................................... 11

IV. Consequence: a duty of non-recognition .......................................................................... 16

1. Duty of non-recognition regarding the illegal occupation of territory .......................... 16

a. UN Resolutions as a binding concretisation of a duty of non-recognition ................ 16

i. UN Resolutions after 1967 ..................................................................................... 16

ii. UN Resolutions as a binding source of law ........................................................... 19

iii. UN Resolutions as the law of non-recognition .................................................. 20

b. UN Resolutions as a reflection of a duty of non-recognition under customary

international ...................................................................................................................... 22

c. Article 41 (2) ARSIWA and a duty of non-recognition of Jerusalem ....................... 25

2. Duty of non-recognition regarding the violation of the right to self-determination ..... 26

3. Erga omnes character of the duties of non-recognition ................................................ 27

4. Interim result ................................................................................................................. 28

V. Violation of international law through the U.S. ................................................................ 28

1. Qualification of the relocation of the U.S. embassy as an act of recognition ............... 29

2. Violation of international law........................................................................................ 31

VI. Consequences: De jure null and void? .............................................................................. 32

1. Invalidity and nullity in international law ..................................................................... 32

2. International Responsibility as the answer to a breach of international law ................. 34

3. Invocation of responsibility Article 42 and Article 48 ARSIWA ................................. 36

4. The role of Article 41 ARSIWA ................................................................................... 37

5. Interim result ................................................................................................................. 37

VII. Conclusion ........................................................................................................................ 38

Bibliography ............................................................................................................................. 40

Appendices ............................................................................................................................... 46

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I. Introduction

“Today, we finally acknowledge the obvious: that Jerusalem is Israel’s capital. This is nothing

more, or less, than a recognition of reality. It is also the right thing to do. It’s something that

has to be done.”1

In a speech on the 6 December 2017 former U.S.2 President Trump ‘recognised’ Jerusalem as

the capital of Israel and announced the relocation of the U.S. embassy from Tel Aviv to

Jerusalem based on the Jerusalem Embassy Act.3 The Jerusalem Embassy Act, adopted by

congress in 1995, had not been executed until 2017 thanks to constantly renewed presidential

waivers.4 But even though the surprise over the relocation of the embassy was enormous, it

has to be mentioned that a certain development of the U.S. position had emerged earlier. An

important event occurred in 2016 when the U.S. abstained from the United Nations5 Security

Council Resolution 23346. The Obama Administration did not want to participate in

condemning settlements on Palestinian territory and territorial changes to the 4 June 1967

lines without agreement by the parties.7 Even if it is also remarkable that the U.S. did not veto

the resolution, it can be held that the U.S. did not always actively condemn attempts of

territorial changes.

When President Trump announced the relocation of the embassy to Jerusalem in 2017, an

international outcry by organisations, states and media followed. The U.S. embassy in

Jerusalem opened on 14 May 2018. The UN General Assembly adopted an Emergency

Session Resolution on 21 December 2017 declaring every decision regarding the status of

Jerusalem having no legal effect, as well as being null and void.8

1 Statement by President Trump on Jerusalem, <https://trumpwhitehouse.archives.gov/briefings-

statements/statement-president-trump-jerusalem/>, accessed 15 February 2021

2 United States of America

3 Statement by President Trump on Jerusalem (n 1)

4 Marco Pertile and Sondra Faccio, ‘What we talk about when we talk about Jerusalem: The duty of

nonrecognition and the prospects for peace after the US embassy’s relocation to the Holy City’ [2020] Leiden

Journal of International Law 33, 622

5 Hereinafter UN

6 UNSC Res 2334 (23 December 2016) UN Doc S/RES/2334 (2016)

7 Pertile and Faccio (n 4) 622

8 UNGA Res ES-10/19 (21 December 2017) UN Doc A/RES/ES-10/19

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Today one can ask whether the relocation was only a problematic diplomatic and political

move or also a violation of public international law.

President Biden announced before his election that he would not move the embassy back to

Tel Aviv and rather focus on reopening the consulate in East Jerusalem.9 This was also

confirmed by Anthony Blinken in 2021, who is now U.S. State secretary.10 Palestine started

proceedings before the ICJ, but if these will be successful is not yet clear, as presently the

issue whether the ICJ has jurisdiction is disputed.11 This makes clear that the question about

the legality of the relocation of the embassy remains relevant.

This thesis wants to give a legal analysis of the relocation of the U.S. embassy. Therefore, the

concept of non-recognition will be introduced generally. The central part will then discuss if a

legal duty of non-recognition of Jerusalem as the capital of Israel exists, and if so if the U.S.

violated it through their action, which also includes the question how the relocation of the

embassy needs to be classified legally.

Interestingly, the U.S. embassy is nowadays located in West Jerusalem and on ‘no man’s

land’, thus on a territory which was around the green line, which in 1949 became the

demarcation line12, between Israel and Jordan. Since 1967, when Israel gained the upper hand

over East Jerusalem, also the ‘no man’s land’ area is controlled by Israel.13 How this fact

influences the legal discussion will also be addressed in this work.

II. The concept of non-recognition

Before assessing the relocation of the U.S. embassy, it is useful to reflect on the roots of

recognition and non-recognition in international law in order to be able to place the questions

then discussed in a larger context.

9 Alex Woodward, ‘Joe Biden says he will keep US embassy in Jerusalem if elected’ (Independent, 7 May 2020)

<https://www.independent.co.uk/news/world/americas/us-election/joe-biden-israel-us-embassy-presidential-

election-a9491351.html>, accessed 26 April 2021

10 Noura Erakat, ‘Biden's early Israel policies show he won't be much better for Palestinians than Trump’ (NBC

News 9 February 2021) <https://www.nbcnews.com/think/opinion/biden-s-early-israel-policies-show-he-won-t-

be-ncna1257146>, accessed 26 April 2021

11 Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America) (Order) [2018]

ICJ Rep 708

12 See Appendices Image 1

13 David Hughes, ‘The U.S. Embassy in Jerusalem: Does location matter?’ [2018] QIL 50 Zoom-in, 24

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1. Recognition as a classical question of statehood

In the late 18th century positive law became more and more widespread and important. A

more formalized way of structuring the society was one consequence. With it, also the

phenomenon arose that European states were confronted with other entities which declared

themselves being a state. The answer to these was recognition by ‘existing’ states.14 This

means that an ‘existing’ state declared its view of the other entity being a state. If it came to

recognition by a certain number of states, the so called ‘cumulative recognition’, the entity got

the status of a state and with this the corresponding treatment in international law.15 More

precisely said ‘civilised’ states declared other entities to be as well ‘civilised’.16 But Crawford

adds that recognition was mostly a doctrinal problem, because entities with some form of

government were obliged by international law and gained rights from international law, even

if they were not recognised as states.17

Recognition got an important boost after the second world war.18 Firstly, the notion of

recognition changed with the decolonization. According to Tourme-Jouannet, with the

recognition of statehood a right to equality was affirmed, which did not necessarily respect

cultural and other differences.19 Secondly, more and more entities were claiming

independence. These were often doing this by unilateral secession claiming to be a new state

and having the right to do so because of their right to self-determination.20

Today a central question is if recognition of states is of constitutive or declaratory nature.21

Recognition of states has always been and still is a highly political subject. Even if the

classical criteria of statehood - territory, permanent population, and government22 - were often

14 Mikulas Fabry, ‘The Evolution of State Recognition’ in Gëzim Visoka, John Doyle, Edward Newman (eds),

Routledge Handbook of State Recognition (Routledge 2019) 37

15 Ibid 37-38

16 Emmanuelle Tourme-Jouannet, ‘The International Law of Recognition’ [2013] EJIL Vol. 24 No. 2, 668

17 James Crawford, The Creation of States in International Law (OUP 2nd edn 2006) 13

18 Peter Radan, ‘Recognition of States in International Law’ in Gëzim Visoka, John Doyle, Edward Newman

(eds), Routledge Handbook of State Recognition (Routledge 2019) 48

19 Tourme-Jouannet (n 16) 668

20 Radan (n 18) 49

21 Crawford (n 13) 19

22 Georg Jellinek, Allgemeine Staatslehre (Verlag von O.Häring 3rd edn 1914), 394-434

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at stake, entities were not recognised as states.23 The constitutive and the declaratory theory

reflect the opposite of legal and political recognition. According to the constitutive theory

recognition is a condition for statehood and so also for the rights following from the existence

of a state.24 By contrast, for the declaratory theory recognition is only the acknowledgment of

an entity being a state,25 so it is a ‘political act’26.

A prominent example where recognition and with it the acknowledgment of rights is disputed,

is Palestine. The world community does not at all agree on the question whether Palestine

should be recognised as a State.27 The non-member observer State status of Palestine in the

United Nations is a compromise,28 but did not at all make the relations of Palestine with the

world community easier, as one can also observe in the current proceedings at the ICJ

regarding the relocation of the U.S. embassy29. In this context it can also be mentioned that

today the ‘State’ attribution is also insofar crucial as it is decisive for membership in several

international organisations, as the UN, Article 4 Charter of the United Nations30.31

To illustrate how difficult the classification of recognition is, Crawford concludes on the

question whether recognition is constitutive or declaratory, that statehood is in general

independent from an act of recognition, but that in certain cases recognition can be

constitutive.32 One should also bear in mind that recognition can be expressed, but also

implied, which can be shown by intention of a State towards another.33

23 Fabry (n 14) 38

24 James Crawford, Brownlie's principles of public international law (OUP 9th edn 2019) 136

25 Ibid 135


27 Yaser Alashqar, ‘Palestine’ in Gëzim Visoka, John Doyle, Edward Newman (eds), Routledge Handbook of

State Recognition (Routledge 2019) 354-355

28 Ibid 354

29 Relocation of the United States Embassy to Jerusalem (n 11) 709

30 Charter of the United Nations, 1945; hereinafter UN-Charter

31 Mentor Borovci, ‘The Role of International Organizations in the Recognition and Non-recognition of States in

International Law’ [2018] Acta Universitatis Danubius. Juridica, Vol. 14 (2), 147

32 Crawford (n 17) 27-28


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What remains to be noted is that the debate about recognition is mostly connected to

statehood and that States use recognition in their statements as argument to act or not to act.

2. Non-recognition in several contexts

Having outlined the general principles of recognition of states the focus of this text will now

lie on the phenomenon of non-recognition. Generally, non-recognition can be described as ‘a

denial of recognition’.34 While states simply recognized other states or did not for a long time,

non-recognition became more formalized and legally relevant with the Stimson Doctrine in

the 1930s.35 Content of the Stimson doctrine was that the U.S. did express on 7 January 1932

in diplomatic notes their will not to recognize situations or agreements by China and Japan

which were violating the Briand-Kellog-Pact, an international treaty.36 Since 1932 the

doctrine not to recognize situations or treaties which are the result of illegal means has

acquired the status of customary international law.37

Turns is of the view that formal non-recognition took this route because of the terrible events

the world faced in World War II. As also the UN-Charter reflects, there was a need at the time

to refuse illegal situations trough non-recognition.38 Dawidowicz writes that the obligation of

non-recognition is mainly based on the principle ex injuria jus non oritur, which means that

an unlawful act cannot be basis for legal claims.39 For Lagerwall non-recognition is one of

many expressions of ex injuria jus non oritur.40

34 Pasha L. Hsieh, ‘Rethinking non-recognition: Taiwan’s new pivot to ASEAN and the one-China policy’

[2020] Cambridge Review of International Affairs, Vol. 33 (2), 204-228

35 David Turns, ‘The Stimson Doctrine of Non-Recognition: Its Historical Genesis and Influence on

Contemporary International Law’ [2003] Chinese Journal of International Law, Vol. 2, 106

36 J.W. W.-B., ‘The Stimson Doctrine’ [1932] Bulletin of International News Vol. 8, No. 22, 5, 7

37 Turns (n 35) 107

38 Ibid 107

39 Martin Dawidowicz, ‘Chapter 46: The Obligation of Non-Recognition of an Unlawful Situation’ in James

Crawford, Alain Pellet, Simon Olleson, Kate Parlett (eds), The Law of International Responsibility (OUP 2010),

686

40 Anne Lagerwall, ‘The non-recognition of Jerusalem as Israel’s capital: A condition for international law to

remain relevant?’ [2018] QIL 50 Zoom-in, 39

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One technique of non-recognition is collective non-recognition. Crawford describes that it has

been developed in the field of statehood and territorial status.41 He states that collective non-

recognition prevents the manifestation of unlawful situations and is a pre-requirement for

other steps in the process of enforcement, which makes collective non-recognition

important.42 A duty of collective non-recognition of customary international law can evolve

“when the illegality invoked is substantial, and in particular when it involves a peremptory

norm of international law”.43 According to Crawford it is not necessary that a peremptory

norm has been breached, but the breach of “substantive rule of general international law, so

that the illegality is one that involves the international community as a whole” is prerequisite

for a collective duty of non-recognition.44 One should distinguish the mentioned collective

non-recognition on legal grounds from collective non-recognition on political grounds, which

is much more common. It arises for example when states decide not to recognise a secession

procedure, because the territorial integrity of the parent state is at risk.45

The ICJ acknowledged a duty of non-recognition in 1971. In the Namibia Advisory Opinion,

the Court stated that the states were under an obligation not to support and assist South Africa

with regard to its occupation of Namibia, which was declared illegal and invalid.46

An example for the non-recognition of a state by the international community is Cyprus. In

1983 the Security called upon the states “not to recognize any Cypriot State other than the

Republic of Cyprus”.47 This implies non-recognition of the Turkish Republic of Northern

Cyprus.48 The example shows that non-recognition of a state can go with the limitation of

trade or with a lack of flight connections, as for example the EU feels committed to the

Republic of Cyprus, which is a EU member state.49


42 Ibid 159-160

43 Ibid 160

44 Ibid 160

45 Nina Caspersen, ‘Collective non-recognition of states’ in Gëzim Visoka, John Doyle, Edward Newman (eds),


46 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)

notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 3, para. 119- 126

47 UNSC Res 541 (18 November 1983) UN Doc S/RES/541

48 Caspersen (n 45) 235

49 Ibid 236

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Speaking of collective non-recognition Article 41 ARSIWA50 must be mentioned. The Article

deals with consequences of serious breaches of international law whereby serious breaches in

this context are defined by Article 40 (2) ARSIWA. The definition prescribes that serious

breaches of international law are breaches of peremptory norms.51 So Article 41 (2) states an

obligation of non-recognition in cases of serious breaches of international law – breaches of

jus cogens. The ILC52 explains that the paragraph refers to a duty of collective non-

recognition of situations which arise through the serious breach of international law.53

According to the Commentaries Article 41 (2) ARSIWA prohibits also acts which imply

recognition.54 Some scholars suggest that a decision by the Security Council, possibly also

under Article 24 and 25 UN-Charter, triggers an actual duty of non-recognition under Article

41 (2) ARSIWA, because it is difficult to determine whether a breach of jus cogens is an

especially serious one.55 Dawidowicz is of the view that Article 41 (2) ARSIWA only refers

to customary international law which generally states a duty of non-recognition when a

peremptory norm is breached. Approval of a duty of non-recognition by UN organs is

therefore not necessary.56 Dawidowicz further explains that a duty of non-recognition can

only be the consequence of a breach of a jus cogens when the wrongdoing state offers a legal

claim to status or rights, which the other states could deny.57 However, it is possible that UN

bodies have the competence to fill the duty with content, so to determine what the substance

of the obligation of non-recognition is.58

50 Draft Articles on the Responsibility of States for Internationally Wrongful Acts, 2001

51 ILC‚ ‘Yearbook of the International Law Commission 2001’ UN Doc A/CN.4/SER.A/2001/Add.1 (Part 2),

114

52 International Law Commission

53 ILC‚ ‘Yearbook of the International Law Commission 2001’ UN Doc A/CN.4/SER.A/2001/Add.1 (Part 2),

114

54 Ibid 114

55 ‘Recognition in the context of the israeli-palestinian conflict - Proceedings of an international workshop held

at the Hebrew University of Jerusalem, 5 November 2018’ [2019] Israel Law Review 52(3), 378

56 Dawidowicz (n 39) 683

57 Ibid 683

58 Ibid 684-685

11

Non-recognition should also be distinguished from derecognition. Derecognition can be

described as a merely political act, which is directed against an entity which fulfils the criteria

of statehood. The aim is thereby to pursue one’s own policy.59

To conclude these general explanations, one can state that the notion of a ‘duty of non-

recognition’ developed as a concept to respond to violations of international law. The duty of

non-recognition of breaches of international law is a customary rule. But what the content of a

duty of non-recognition is needs to be determined. It is possible that this specific content is set

out in an authoritative enumeration, for example in UN Resolutions.60

III. The reason for a duty of non-recognition

As shown above a duty of non-recognition may not exist per se. Therefore, regarding the U.S.

embassy in Jerusalem an explanation of historical events and of violations of international law

through Israel is crucial at this point.

Talking about Jerusalem one should bear in mind that the old city is part of East Jerusalem.

Important religious sites of Jewish, Muslim and other religions are located in the old city, like

the Temple Mount with its Western Wall. This influences the explosive discussion about East

Jerusalem.

For the present purpose it is useful to start with the United Nations Partition Plan in 1947,

which stated the end of the British Mandate in ‘Palestine’61, which had been established by

the League of Nations. The Partition Plan proposed a two-state solution,62 with the states

Israel and Palestine. In Part III a special regime concerning the city of Jerusalem was

established. Jerusalem was called ‘corpus seperatum’63. The concept thereby was influenced

by the idea of neutrality of the city. The plan was to put it under the administration of the

59 Gëzim Visoka, ‘The Derecognition of States’ in Gëzim Visoka, John Doyle, Edward Newman (eds),



61 UNGA Res 181 (29 November 1947) UN Doc A/RES/181 (II), 132-133


63 UNGA Res 181 (29 November 1947) UN Doc A/RES/181 (II), 148

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UN,64 to demilitarize the city,65 to establish a citizenship of Jerusalem66 and to protect the

access to and the holy buildings themselves67. But the idea of a peaceful end of the British

Mandate and the establishment of two new states with a neutral Jerusalem was not realized:

On the 14 May 1948 Ben Gurion claimed the independence of Israel in accordance with the

UN Partition Plan, while the Palestinian side did not agree with the UN Resolution. Soon

afterwards, the Palestine war, also known as the War of Independence, began. On 11

December in 1948 the UN General Assembly adopted Resolution 194. The General Assembly

recalled that Jerusalem should be administered by the United Nations and should be

demilitarized.68

Trigger for the Palestinian war was that in May 1948 Jordan felt under pressure and attacked

Jerusalem.69 The Israeli side believed that Jordan would try to take West Jerusalem.70 The

result was that in 1949, after the war of independence, armistice lines were agreed between

Israel and its Arab neighbour states71 - the Israel-Jordan line divided thereby Jerusalem,

whereby Israel controlled West and Jordan East Jerusalem.72 Around the armistice line a

demilitarized zone was created, so called ‘no man’s land’, which is not the same as terra

nullius.73 A territory is ‘no man’s land’ when it is not under the sovereignty of a state.74 ‘No

man’s land’ at that time and on that territory was the “neutral zone” or the territory “between

the lines” established by an agreement,75 while terra nullius means that a territory belongs to

no one and can be legally obtained76.

64 Ibid 146

65 Ibid 147

66 Ibid 148

67 Ibid 149

68 UNGA Res 194 (11 December 1948) UN Doc A/RES/194, 23

69 Benny Morris, 1948: A History of the First Arab-Israeli War (Yale University Press 2008) 212

70 Ibid 215



73 Hughes (n 13) 26

74 Ibid 30

75 Ibid 26

76 Western Sahara (Advisory Opinion) [1975] ICJ Rep 12, para. 79

13

Regarding the battle for West Jerusalem Lauterpacht argues that Israel occupied West

Jerusalem out of self-defence in reaction to Jordan’s attack in accordance with Article 51 UN-

Charter.77 As the attack was an attack “upon all Jewish settlement in Palestine” the self-

defence measures could not be limited by the borders of the Partition Plan.78 According to

Lauterpacht the acquisition of this territory was not contested by the UN. Therefore, Israel

obtained sovereignty over West Jerusalem legally. Lauterpacht describes this as “the

legitimate filling of the sovereignty vacuum”79.80 Cassese criticises this view by arguing that

lawful acquisition of territory by self-defence had not been possible if it was not the

uncontested territory of the defending state before.81 He adds that silence of the UN cannot

mean that they accepted the acquisition as being legal.82

Since 1949 Knesset, the parliament of the State of Israel is situated in Jerusalem.83 In 1950

Knesset declared that West Jerusalem was Israel’s capital.84

The six-day-war from 5 to 10 June 1967 brought further territorial change. In the six-day-war

Israel invaded the Sinai Peninsula and Gaza85, belonging to respectively controlled by

Egypt,86 the Westbank including East Jerusalem, controlled by Jordan since 1948,87 and

conquered the Golan Heights, which were controlled by Syria88.89 Israel also occupied the

area of ‘no man’s land’ described above. This was the basis for Israel’s de facto territorial

77 Elihu Lauterpacht, Jerusalem and the Holy Places (The Anglo-Israël association 1968) 44

78 Ibid 45

79 Ibid 45

80 Ibid 46; Antonio Cassese, ‘Legal Considerations on the International Status of Jerusalem’ in Antonio Cassese,

Paola Gaeta and Salvatore Zappalá (eds), The Human Dimension of International Law: Selected Papers (OUP

2008) 279

81 Cassese (n 80) 280-281

82 Ibid 281

83 First Knesset <https://knesset.gov.il/review/ReviewPage.aspx?lng=3&kns=1>, accessed 27 April 2021

84 Hughes (n 13) 17

85 Pertile and Faccio (n 4) 624

86 Arnold Blumberg, The History of Israel (Greenwood Press 1998) 106

87 Colin Shindler, A History of Modern Israel (2nd edn, Cambridge University Press 2013) 125

88 Blumberg (n 86) 107


14

control today. But this does not mean that the territory is necessarily under Israel’s legal

sovereignty.

In 1980, Knesset adopted the Jerusalem Basic Law, which made Israel’s position towards

Jerusalem clear. The central first paragraph reads: “Jerusalem, complete and united, is the

capital of Israel.” Israel’s position that the annexation of East Jerusalem in 1967 reunited

Jerusalem was cemented in law.90 The third paragraph guarantees access to the holy sites for

members of the different religions, but is rather vague as there is no agreement which places

are holy and for which religion.91 Israel’s position has not changed until today, so it is of the

view that the whole city of Jerusalem is its capital.

In 2003 the General Assembly asked the ICJ to give an Advisory Opinion regarding the

question if the measures of Israel regarding the construction of a wall in occupied territory are

legal under international law.92 In the Advisory Opinion the ICJ made findings on the status

of the territories which Israel has controlled since 1967 and on the right to self-determination

of the Palestinian people.

Firstly, the ICJ stated that all territories beyond the Green line were illegally occupied by

Israel in 1967 as “territory is considered occupied when it is actually placed under the

authority of the hostile army, and the occupation extends only to the territory where such

authority has been established and can be exercised”.93

Regarding the right to self-determination of the Palestinian people the ICJ mentioned various

legal sources of the right to self-determination, among others the UN-Charter, as well as

Article 1 ICCPR94 and Article 1 ICESCR95.96 Generally the right to self-determination is

relevant in political, economic, social and cultural contexts and is considered a group right.97

90 Michael Zank, ‘The Jerusalem Basic Law (1980) and the Jerusalem Embassy Act (1995): A Comparative

Investigation of Israeli and US Legislation on the Status of Jerusalem’ [2016] Israel Studies, Vol. 21 No. 3, 27

91 Ibid 29

92 UNGA ES-10/14 (12 December 2003) UN Doc A/RES/ES-10/14

93 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion)

[2004] ICJ Rep 136, para. 78

94 International Covenant on Civil and Political Rights, 1966

95 International Covenant on Economic, Social and Cultural Rights, 1966

96 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (n 93) para. 88

97 Robert McCorquodale, ‘Group Rights’ in Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran (eds)

International Human Rights Law (OUP 3rd edn 2018) 347

15

The right to self-determination is important as it is a condition for the effectiveness of

individual human rights.98 The Court found that the ICCPR and the ICESCR, which provide

the right to self-determination, as well as other treaties were also applicable in occupied

territory, also because Israel is exercising jurisdiction over these territories.99 The ICJ argued

that the construction of the wall on occupied territory and alleged measures, as Israeli

settlements in the occupied territories,100 violated the right to self-determination of the

Palestinian people.101 It also found that other human rights as the liberty of movement and the

rights to education, health, work and an adequate standard of living were violated.102

The Court found that Israel is under an obligation to cease the violations going with the

construction of the wall.103 Finally, the ICJ explained that because of these violations of

international law by Israel, all states are under an obligation “not to render aid and assistance

in maintaining that situation”.104

Even if the wall has not been entirely completed, it also has not been removed.105 Israeli

behaviour violating the right to self-determination has not stopped.106 Israel does until today

not comply with the Wall Advisory Opinion, which also show the recalls of the Security

Council 2016107 and of the General Assembly in 2017108.

98 UNCHR ‘CCPR General comment No. 12: Article 1 (Right to self-determination) The Right to Self-

determination of Peoples’ (13 March 1984) UN Doc HRI/GEN/1/Rev.9 (Vol. I) p.183, para.1

99 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (n 93) paras. 111-112

100 Ibid para. 120

101 Ibid para. 122

102 Ibid para. 134

103 Ibid para. 151

104 Ibid para. 146

105 Richard Falk, ‘Remembering the World Court Advisory Opinion on Israel’s Separation Wall After 15 Years’

(2019) Foreign Policy Journal <https://www.foreignpolicyjournal.com/2019/07/12/remembering-the-world-

court-advisory-opinion-on-israels-separation-wall-after-15-years/>, accessed 23 April 2021

106 Ibid

107 UNSC Res 2334 (23 December 2016) UN Doc S/RES/2334, 1

108 UNGA Res 72/15 (7 December 2017) UN Doc A/RES/72/15, 1

16

IV. Consequence: a duty of non-recognition

Since a duty of non-recognition is consequence of a breach of international law, the question

will now be what such a duty means in concrete terms regarding the violations of international

law through Israel described above. It must therefore be clarified whether the duty applies to

all states and what they are not allowed to do. This is necessary in order to determine in a later

step whether the U.S. have violated such a duty of non-recognition.

1. Duty of non-recognition regarding the illegal occupation of territory

One could follow from the above discussed violation of international law through Israel that

the states should not recognize the occupied territory as a territory on which Israel has legal

sovereignty. Therefore, it will be discussed if binding UN Resolutions exist, which contain a

concretisation of a duty of non-recognition. Thus, it will also be necessary to assess the legal

value of UN Resolutions. Furthermore, it will be examined whether customary international

law also provides for a concretisation of the obligation of non-recognition. Article 41 (2)

ARSIWA will also be considered.

a. UN Resolutions as a binding concretisation of a duty of non-recognition

To assess the question of whether UN Resolutions provide a binding and concrete

determination of a duty of non-recognition of occupied territory as part of Israel, it is firstly

necessary to show which resolutions have been passed by the UN in the context of Israeli

violations of international law. Secondly it will be explained whether UN Resolutions by the

Security Council and the General Assembly are generally binding. Thirdly it will be analysed

whether concrete resolutions regarding Jerusalem are binding.

i. UN Resolutions after 1967

In reaction to the six-day-war the Security Council recalled the prohibition of the use of force,

Article 2 (4) UN-Charter and called upon Israel to withdraw from occupied territories.109 The

General Assembly released a resolution concerning Jerusalem, in which it criticized any

109 UNSC Res 242 (22 November 1967) UN Doc S/RES/242

17

action that would alter the status of the holy city.110 The Security Council also repeated the

critique regarding measures changing the status of Jerusalem in Resolution 252.111

In 1980 the Security Council adopted Resolution 476. It condemned actions of Israel “which

purport to alter the character and status of the Holy City” and stated these actions and

measures were null and void.112 Less than two months later the Security Council adopted

Resolution 478 in response to Israel’s Jerusalem Basic Law, in which it again criticised

Israel’s measures regarding Jerusalem, repeating the words of Resolution 476 quoted above.

Further it decided “not to recognize the “basic law” and such other actions by Israel that, as a

result of this law, seek to alter the character and status of Jerusalem” and called on the UN

members states to withdraw their diplomatic missions from the holy city.113

In 2016 the Security Council released Resolution 2234. The U.S. abstained from it. The aim

of the resolution was to condemn Israeli settlements in the ‘Palestinian’ territory.114

Additionally the Security Council emphasized that it would not accept territorial changes to

“the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the

parties”.115

When in 2017 U.S. President Trump announced the relocation of the embassy to Jerusalem,

the General Assembly reacted. Referencing to Security Council’s Resolution 478116, the

General Assembly requested all states to refrain from moving diplomatic missions to

Jerusalem and condemned all actions which “altered the character, status or demographic

composition of the Holy City”. It recalled that Jerusalem’s final status is not settled and that

states should comply with Security Council Resolutions.117

110 UNGA Res 2253 (4 July 1967) UN Doc A/RES/2253

111 UNSC Res 252 (21 May 1968) UN Doc S/RES/252

112 UNSC Res 476 (30 June 1980) UN Doc S/RES/476

113 UNSC Res 478 (20 August 1989) UN Doc S/RES/478


115 Ibid 2

116 See above

117 UNGA Res ES-10/19 (21 December 2017) UN Doc A/RES/ES-10/19, 1

18

From the above outlined resolutions by the Security Council and the General Assembly it is

clear that the majority of UN member states disagree with Israel’s claim of Jerusalem being

united and completely under Israel’s sovereignty.

One may wonder what the recurring reference on the ‘status’ of Jerusalem signifies and think

of the Partition Plan, which contained the above described ‘corpus seperatum’ construction.

But even if the Partition Plan has never been revoked,118 neither the Security Council nor the

General Assembly referred to the Partition Plan explicitly.119 The resolutions do not refer to

the ‘legal status’ of Jerusalem, but only to the ‘status’120 – this could be interpreted in the way

that the UN do only want to emphasize the importance of the city for several religions and

that the final status cannot be determined unilaterally. Moreover, the UN adopted a position

which is incompatible with the idea of ‘corpus seperatum’. For example, in 2016 the Security

Council made reference to the 4 June 1967 lines121, so to a point in time, where West

Jerusalem was already under Israel’s control. Already in 1968 Lauterpacht contested that the

UN was accepting the demise of the concept of internationalization.122 As also Kontorovich

argued at an international workshop held in Jerusalem ‘corpus seperatum’ is dead letter and

the corpus seperatum which is sometimes nowadays referred to ‘is not really corpus

seperatum but something else’.123 This leads the present author to the conclusion that the idea,

that Jerusalem should be under an international administration, has been abandoned.

Summarized the UN acknowledge Israel’s sovereignty over West Jerusalem and condemn the

illegal occupation of the territory of East Jerusalem and the area around the armistice lines.

The content of the non-recognition of the illegal occupation is not to recognize the “basic

law” as legal, which means not to recognize the whole city of Jerusalem as capital of Israel.

Content of the non-recognition is also the withdrawal of diplomatic missions from Jerusalem.

The recall to withdraw diplomatic missions from the holy city, and not only from occupied

118 Cassese (n 80) 279

119 UNGA Res 2253 (4 July 1967) UN Doc A/RES/2253; UNSC Res 252 (21 May 1968) UN Doc S/RES/252

120 UNGA Res 2253 (4 July 1967) UN Doc A/RES/2253; UNSC Res 252 (21 May 1968) UN Doc S/RES/252;

Raoul Jacobs, Mandat und Treuhand im Völkerrecht (Universitätsverlag Göttingen 2004) 188


122 Lauterpacht (n 77) 36


at the Hebrew University of Jerusalem, 5 November 2018’ [2019] Israel Law Review 52 (3), 397

19

territory must also be seen from a political perspective. Resolution 478 is intended to express

political protest to Israel’s claim to Jerusalem as a whole.

ii. UN Resolutions as a binding source of law

UN Resolutions are the central form of expression of the General Assembly and the Security

Council. When the discussion comes to the ‘legal nature of instruments’ of international

organisations this is first of all determined by their constituting treaties,124 in the case of the

UN the UN-Charter. Through decisions the members of the organs express their vote, Article

18 and 27 UN-Charter. Resolutions can be but do not have to be binding. To assess which of

them are binding a distinction needs to be drawn between the Security Council and the

General Assembly.

Relevant provision regarding the Security Council can be found in Chapter VII UN-Charter,

which regulates that the Security Council may take measures in cases of threat to the peace,

breach of the peace or acts of aggression. Regarding Article 39 UN-Charter the Security

Council plays a central and ‘quasi-judicial’ role by determining whether any threat to the

peace, a breach of the peace or an act of aggression is at stake and by deciding what measures

should be taken.125 These decisions are binding, Article 39 UN-Charter. But the Security

Council has also other tasks, Articles 24-26 UN-Charter. Article 25 regulates, that the

members carry out decisions of the Security Council. In the Namibia Advisory Opinion the

ICJ has explained that Article 25 UN-Charter does not only refer to Article 41 and 42 UN-

Charter, so that a binding effect is also possible, even if a resolution is not adopted under

Chapter VII UN-Charter.126 Consequently the UN member states are obliged to accept the

decisions of the Security Council and to carry them out.127 The ICJ explained that Article 25

UN-Charter needs to be understood in the light of Article 24 UN-Charter, which lists the

124 Jan Klabbers, An Introduction to International Institutional Law (Cambridge University Press 2nd edn 2009)

178

125 Simon Chesterman, Ian Johnstone, and David M. Malone, Law and Practice of the United Nations (OUP

2016) 139

126 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)

notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 3, paras. 113-114

127 Ibid para. 116

20

functions of the Security Council.128 The central function is thereby the maintenance of

international peace and security, Article 24 (1) UN-Charter.

Differently the General Assembly can generally not take binding decisions, apart from

decisions on internal or administrative matters129, e.g. Article 4 and 17 UN-Charter. An

exception can be found in the Uniting for Peace Resolution.130 When the Security Council is

not able to act because of a lack of unanimity regarding its primary responsibility of Chapter

VII UN-Charter, the General Assembly can step in and recommend measures.131 The legal

basis for this construction can found in Article 10-12 UN-Charter, which regulate the General

Assembly’s power to make recommendations.132

iii. UN Resolutions as the law of non-recognition

After these general considerations it is necessary to assess whether the specific resolutions on

Jerusalem are binding.

Central to all authors which discuss the relocation of the U.S. embassy is Security Council

Resolution 478, as it has a decided content and is clearly formulated, which also justifies

discussing it before previous resolutions. The resolution was not adopted under Chapter VII

UN-Charter,133 so this is not the reason why it could be a binding law of non-recognition.

Article 25 UN-Charter is of further interest, because as explained the Security Council can on

its basis take binding decisions.134 Resolution 478 uses the term ‘decides’ by saying that the

Security Council does not recognize actions which “seek to alter the character and the status

of Jerusalem”.135 Especially when we consider that the UN does not accept Israel’s

occupation of East Jerusalem it seems logical that Article 25 UN-Charter is the right attempt.

128 Ibid para. 113

129 Chesterman, Johnstone, and Malone (n 125) 320

130 UNGA Res 377 (V) (3 November 1950) UN Doc A/RES/5/377

131 Ibid; Andrew J. Carswell, ‘Unblocking the UN Security Council: The Uniting for Peace Resolution’ [2013]

Journal of Conflict & Security Law Vol. 18 No. 3, 459

132 Carswell (n 131) 473-476

133 Maurizio Arcari, ‘The relocation of the US embassy to Jerusalem and the obligation of non-recognition in

international law’ [2018] QIL 50 Zoom-in, 6

134 See above

135 UNSC Res 478 (20 August 1989) UN Doc S/RES/478

21

Regarding the occupation of territory in an armed conflict, it can be argued that the Security

Council took the decision - Resolution 478 - to fulfil its function to maintain international

peace. Even if the Security Council did not refer to Article 25 UN-Charter, the present work is

of the opinion that it is not excluded that the bindingness of the resolution could be based on

Article 25 UN-Charter. As explained, the UN member states are under an obligation to carry

out the decisions of the Security Council taken under Article 25 UN-Charter. As Resolution

478 is binding the duty of non-recognition of the illegal occupation consequently includes a

duty not to recognize Jerusalem as the capital of Israel and the obligation to withdraw

diplomatic missions from the holy city.

Regarding the territories which Israel controls since 1967 Resolution 2334 is also important,

because it clearly distinguished the State of Israel from the territories obtained in the six-day-

war.136 Like Resolution 478, Resolution 2334 was not adopted under Chapter VII UN-

Charter. Moreover, in Resolution 2334 the Security Council did not refer to Article 25 UN-

Charter. Differently from Resolution 478, Resolution 2334 does not use the term ‘decides’.

So, the question is if Resolution 2334 can also be binding. One could argue that by saying that

the terminology, such as ‘decides’ is not crucial. But another remarkable difference is that the

content of Resolution 2334 regarding Jerusalem is not new, it is only more precise. Several

times the text uses the term ‘reaffirms’, also considering Resolution 478. It is logical that the

content is not new. Differently from 1980 the situation had not fundamentally changed,

because Israel had not changed its sovereignty claim. Beyond that it is remarkable that the

authors, who have dealt with the question if a violation of a duty of non-recognition is

thinkable, did not at all consider Resolution 2334137, or only mentioned it in the description of

the history of UN Resolutions138. This remark is not meant as a critique; it only underlines the

here presented opinion: Resolution 2334 is not binding by itself, but that is also not needed,

because it reaffirms the importance of the binding Resolution 478. Resolution 2334 can be

used to interpret other resolutions, but it does not contain ‘a new’ determination of the duty of

non-recognition.


137 Arcari (n 133) 15-32

138 Victor Kattan, ‘Why U.S. Recognition of Jerusalem Could Be Contrary to International Law’ [2018] Journal

of Palestine Studies Vol. XLVII, No.3, 75, 77; Lagerwall (n 40) 36

22

The situation with the much older Security Council Resolution 252 from 1968 is similar.139 In

the resolution the Security Council “considers that (emphasis added) […] measures […]

which tend to change the legal status of Jerusalem are invalid and cannot change that status”.

The Security Council did not decide things, it did not take a binding decision. It seems more

that it is referring to existing law, which is reflected by using the term “considers”. This

resolution only said that the measures taken by Israel are illegal, but not what follows from

this.

As the General Assembly can represent community interests,140 the duty of non-recognition of

Security Council Resolution 478 could even be stronger if a legally binding resolution of the

General Assembly existed. Regarding the General Assembly no corresponding norm to

Article 25 UN-Charter exists. The resolutions of the General Assembly do not mention the

word ‘decides’.141 Moreover, one cannot confirm that there was room for a Uniting for Peace

Resolution by the General Assembly, because the Security Council did not lack unanimity on

the Resolutions which concern the measures by Israel regarding Jerusalem. It will be shown in

the next section that it is more convincing to examinate the value of General Assembly

Resolutions in the context of customary international law.

b. UN Resolutions as a reflection of a duty of non-recognition under

customary international

Several authors do not stop by simply considering the legal value of the UN Resolutions.142

The present author is of the view that not only binding UN Resolutions can contain the

concretisation of the contents of a duty of non-recognition, but also customary international

law.

139 UNSC Res 252 (21 May 1968) UN Doc S/RES/252

140 Jan Klabbers, ‘What Role for International Organizations in the Promotion of Community Interests?

Reflections on the Ideology of Functionalism’ in Eyal Benvenisti and Georg Nolte (eds), Community Interests

Across International Law (OUP 2018) 93

141 UNGA Res 2253 (4 July 1967) UN Doc A/RES/2253; UNGA Res ES-10/19 (21 December 2017) UN Doc

A/RES/ES-10/19

142 Arcari (n 133) 6; Lagerwall (n 40) 37

23

Customary international law generally requires opinio juris and state practice.143 As a source

of international law custom is also mentioned in Article 38 ICJ Statue.144

While the General Assembly played a minor role in the above discussed section, it plays an

important one in the context of customary international law. In the present context is the

Nicaragua judgment by the ICJ is interesting, where the court ruled that General Assembly

Resolutions can be evidence of opinio juris,145 and if this evidence is really strong, evidence

of state practice is less important.146 In their Draft Conclusions on Identification of Customary

International Law resolutions by international organizations also the ILC names as a form of

evidence for opinio juris “conduct in connection with resolutions adopted by an international

organization”.147 If we reconsider the resolutions mentioned above also the General Assembly

did not hold back to express its view, even after the announcement of the relocation of the

U.S. Embassy.148 In 1967 it reacted faster than the Security Council and called upon Israel to

refrain from measures which would alter the status of Jerusalem.149 In 2017 the General

Assembly underlined the relevance of the Security Council Resolutions, especially Resolution

478, and ‘demanded’ the states not to recognize actions which do not comply with Security

Council Resolutions.150 In the view of the present author it can clearly be established that the

General Assembly reflects the opinio juris that Jerusalem has a special status, which needs to

be protected by non-recognition of Jerusalem as the capital of Israel. Moreover, by referring

also to Security Council Resolution 478, whose content was described before, the General

Assembly expressed the view that a duty of non-recognition of the occupied territory as part

of Israel is clear. Also, the Security Council Resolutions are relevant for identifying a rule of

customary international law, as they are also an expression of the legal opinion of the UN.

Considering also Security Council Resolutions 252 and 2334, whose content were described

143 Crawford (n 24) 22-24

144 Statue of the International Court of Justice, 1945

145 Military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America)

(Merits) [1986] ICJ Rep 14, para.188

146 Klabbers (n 124) 187

147 ILC, ‘Report of the International Law Commission Seventieth session’ (30 April–1 June and 2 July–10

August 2018) UN Doc A/73/10, para. 65, Conclusion 10 para.2


149 UNGA Res 2253 (4 July 1967) UN Doc A/RES/2253


24

above151, no other conclusion of the opinio juris can be drawn, as out of the General

Assembly ones. The resolutions of the General Assembly show that the position of the

Security Council is also the position of a broad community of states and not only of the

members of the Security Council.152

The second element of customary law, state practice, also needs to be established here. Lepard

describes state practice as the evidence for the belief of states in opinio juris.153 Complete

uniformity of the practice is not necessary for customary international law.154 The ILC comes

to the conclusion that state practice can apart from physical and verbal acts also include

inaction.155 Moreover, the ILC says that a possible form of state practice is ‘conduct in

connection with resolutions adopted by an international organization’.156 Lepard argues that

state practice is less important when a norm is representing the interests of the community and

that membership in a global community ‘is a basis for all norms of customary international

law’.157 Taking into account the Nicaragua judgment158 of the ICJ, evidence of opinion juris

regarding the present case is very strong, which makes state practice less important. Several

resolutions exist, and the content is often identical, even in wording. Nevertheless, in the

author’s view evidence for state practice can be seen in the compliance of states with the

resolutions, especially with Resolution 478 by the Security Council, which urged the member

states to withdraw their diplomatic missions. Only Kosovo and Guatemala followed the U.S.

model and have their embassies in Jerusalem today.159 The inaction of states to relocate their

151 See above

152 Similarly Basheer Alzoughbi, ‘The Relocation of the U.S. Embassy from Tel Aviv to Jerusalem (Palestine v.

United States of America): a Commentary on the Merits of the Case, Jurisdiction of the International Court of

Justice and Admissibility of Palestine’s Application’ [2019] University of Bologna Law Review, Vol. 4 Issue 1,

114-205

153 Brian D. Lepard, Customary International Law: A New Theory with Practical Applications (Cambridge

University Press 2010) 122


155 ILC, ‘Report of the International Law Commission Seventieth session’ (30 April–1 June and 2 July–10

August 2018) UN Doc A/73/10, para. 65, Conclusion 6 para.1

156 Ibid para. 65, Conclusion 6 para.2

157 Lepard (n 153) 122-123

158 See above

159 Israel Embassies and Consulates, <https://www.embassypages.com/israel>, accessed 12 April 2021

25

embassies to Jerusalem is evidence for state practice with a concrete content of the duty of

non-recognition of Jerusalem, namely the withdrawal of the embassies.

The content of the obligations under customary international law is thus again the non-

recognition of the whole city of Jerusalem as capital of Israel and the withdrawal of the

embassies.

c. Article 41 (2) ARSIWA and a duty of non-recognition of Jerusalem

Apart from the resolutions, one may wonder if a duty of non-recognition for the U.S. exists

also because of a violation of jus cogens, Article 41 (2) ARSIWA. As described above this

would be the case if we could contest a situation which was created by a serious breach of a

peremptory norm. Applied to the present case Article 41 (2) ARSIWA requires that Israel

would have violated a norm of jus cogens and this would have to be a ‘gross or systematic

failure’ to fulfil the obligation of a peremptory norm, Article 40 (2) ARSIWA. Jus cogens is

defined by Article 53 VCLT: a jus cogens norm needs to be accepted by the international

community as a whole. One norm which is considered to be a peremptory norm is the

prohibition of aggression.160

According to the ICJ East Jerusalem is occupied by Israel.161 Thereby it is problematic how it

came that Israel is an occupying power. Israel is defending itself by arguing that it acted with

self-defence in the six-day-war. A doctrine of preventive war and its legitimacy has developed

around the six-day-war.162 The present work adopts the widespread view that East Jerusalem

is under occupation. But by doing so the present author also acknowledges that because of the

highly controversial issue of the events in the six-day-war and their legal qualification a duty

under Article 41 (2) ARSIWA cannot be contested. Even if Israel would have violated the

peremptory norm of the prohibition of aggression, a ‘gross and systematic’ failure cannot be

determined. According to the ILC a “serious” breach within the meaning of Article 40 (2)

160 ILC, ‘Fourth report on peremptory norms of general international law (jus cogens) by Dire Tladi, Special

Rapporteur’ (ILC Seventy-first session 29 April–7 June and 8 July–9 August 2019) UN Doc A/CN.4/727, para.

68


162 John B. Quigley, The Six-Day War and Israeli Self-Defense: Questioning the Legal Basis for Preventive War

(Cambridge University Press 2013) 170

26

ARSIWA requires “that a certain order of magnitude of violation is necessary”.163 The

situation was dangerous for Israel in 1967 as the Egyptian side had sent troops to Sinai.164 On

22 May 1967 Nasser ordered the de facto blockade of Israel’s access to the Red Sea at the

Straits of Tiran.165 Even if is not clear until today if Egypt was really ready for a war, in the

present author’s view the context excludes in any case ‘gross and systematic failure’ to

comply with jus cogens obligations.

2. Duty of non-recognition regarding the violation of the right to self-determination

Another violation of international through Israel which has been identified by the ICJ in the

Wall Advisory Opinion, is the violation of the right to self-determination of the Palestinian

people.166 The right to self-determination is a jus cogens norm.167 The ICJ stated that “all

States are under an obligation not to recognize the illegal situation resulting from the

construction of the wall […]”, i.e. not to recognize the violation of the right to self-

determination.168 It underlined the “character and the importance of the rights and obligations

involved”.169 This leads to the conclusion that the violation of the right to self-determination

of the Palestinian people through Israel is a serious violation of jus cogens, so that there is

also a duty of non-recognition under general international law, reflected in Article 41 (2)

ARSIWA. The present author is of the view that the ICJ itself concretised the duty, by ruling

that the states cannot “render aid or assistance in maintaining the situation” and have to work

towards an end of the violation of the right to self-determination of the Palestinian people.170

163 ILC‚ ‘Yearbook of the International Law Commission 2001’ UN Doc A/CN.4/SER.A/2001/Add.1, 113

164 Blumberg (n 86) 105

165 Ibid 105

166 See above



169 Ibid para. 159

170 Ibid para. 159

27

3. Erga omnes character of the duties of non-recognition

To assess whether the U.S. has violated the duties of non-recognition in the next chapter, it is

also important to determine, whether the obligations are owed by the U.S. This is the case if

the duties have erga omnes character. Erga omnes obligations have been defined by the ICJ as

obligations “owed to the international community as a whole”.171

Ragazzi concludes from the Namibia Advisory Opinion that it is not at all excluded that

obligations of non-recognition are erga omnes obligations.172 He also states that it is

remarkable that the ICJ did not refer to jus cogens in the Namibia Advisory Opinion.173 Tams

is also of the view that erga omnes obligations exist which are not necessarily jus cogens

norms.174

As stated before, duties of non-recognition are generally norms of customary international

law. Customary international law can reflect community interests, which seems conceptually

connected to erga omnes obligations. But how can be determined if customary rules are

obligations erga omnes? Tams distinguishes the structural and the material approach, when

assessing the question. The structural approach in its various forms suggests that all non-

bilateral obligations, or that only important non-bilateral obligations are erga omnes

obligations.175 The material approach refers to a certain degree of importance.176 Importance

is thereby independent from the notion of ‘necessity’ and ‘functionality’.177 Differently from

peremptory norms erga omnes obligations can be dispositive.178 To assess the importance of

an obligation one can also rely on UN practice, but also on an investigation to the reactions to

breaches of the obligation.179

171 Case concerning the Barcelona Traction, Light and Power Company, Limited (New Application: 1962)

(Belgium v Spain) Second Phase (Judgment) [1970] ICJ Rep 3, para. 33

172 Maurizio Ragazzi, The Concept of International Obligations Erga Omnes (OUP 2000) 168

173 Ibid 171

174 Christian J. Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge University Press

2005) 151

175 Ibid 130-131

176 Ibid 136

177 Ibid 137

178 Ibid 153

179 Ibid 153-154

28

Applied to the duty of non-recognition of Jerusalem as capital of Israel, the duty is not

bilateral, it applies to the whole community of states. Various affirmations of this duty of non-

recognition were taken, as we can conclude after the assessment of the various resolutions.

The General Assembly’s claim that the violation of the duty, the reaction to a breach of the

obligation, would be null and void180 is a strong one. The author is of the view that the duty

not to recognize Jerusalem as Israel’s capital has arguably erga omnes character.

Regarding the duty not to recognize the illegal situation resulting from the violation of the

right to self-determination of the Palestinian people through Israel the ICJ itself has

established the erga omnes nature of the duty of non-recognition. The ICJ states that “all

States” were under a duty of non-recognition.181

Thus, the confirmed and concretised duties of non-recognition which were examined here are

erga omnes obligations. They therefore apply to all states and can theoretically be violated by

all states.

4. Interim result

It has been demonstrated that concrete duties of non-recognition regarding the occupied

territories and the violation of the right to self-determination exist, which apply to all states.

V. Violation of international law through the U.S.

Having established that duties of non-recognition regarding Jerusalem exist, it is now

necessary to examine the relocation of the U.S. embassy. It must be considered which legal

value the decision based on the Jerusalem Embassy Act of 1995 has under international law

and whether it constitutes a violation of the duties of non-recognition.



29

1. Qualification of the relocation of the U.S. embassy as an act of recognition

An excerpt of President Trump’s statement held on 6 December 2017 has been cited at the

very beginning of this work.182 While the statement is not the only relevant factor for the

examination of the legal value of the relocation of the U.S. embassy, it is nevertheless

important. Therefore, some more relevant passages will be addressed here. It is important to

note that diplomatic premises are normally located in the capital of the receiving state, but the

Vienna Convention on Diplomatic Relations183 does not require this.184

Before announcing the relocation of the embassy President Trump explained that he had

determined “that it is time to officially recognize Jerusalem as the capital of Israel”185.

Importantly President Trump also said, “Israel is a sovereign nation with the right like every

other sovereign nation to determine its own capital”186. In the whole statement no reference to

East or West Jerusalem is made. As Kontorovich explained it is the practice of the U.S. to use

the expression ‘Jerusalem’ by meaning the whole city.187 The U.S. Jerusalem Embassy Act of

1995, which is insofar important, as it is the legal basis for the relocation of the embassy and

therefore also part of the reasoning, seems to underline Kontorovich’s explanation. It states,

“In 1967, the city of Jerusalem was reunited during the conflict known as Six Day War”.188

One cannot ignore that President Trump also said the U.S. would not take “position on final

status issues, including the specific boundaries of the Israeli sovereignty in Jerusalem”.189

Kattan mentions rightly that thereby no reference to specific Palestinian territories was

made.190 As Kontorovich also said, the mere fact that the U.S. acknowledge that, for example

182 See above

183 Vienna Convention on Diplomatic Relations, 1961

184 Jean d'Aspremont, ‘Premises of Diplomatic Missions’ in Rüdiger Wolfrum (ed), The Max Planck

Encyclopedia of Public International Law (OUP 2009)


186 Ibid



188 Jerusalem Embassy Act of 1995, Section 2 Findings (6)


190 Kattan (n 138) 73

30

through negotiations, the situation of sovereignty in Jerusalem could change, cannot hide that

the U.S. recognises today Israel’s sovereignty over the whole city of Jerusalem.191

Beyond that Kontorovich addressed another argument to assess the classification of the

relocation of the embassy to Jerusalem. The consulate-general had for a long time its own

jurisdiction with respect to Jerusalem, which means that it was not accredited by Israel and

the U.S. ambassador did not function in Jerusalem.192 Instead the consulate-general was the

“unofficial embassy to Palestinians”193.194 Today the consulate is subordinated to the authority

of the U.S. embassy.195 The announcement of the incorporation of the consulate-general in the

embassy in Jerusalem was announced by Secretary of State Pompeo in October 2018 and is

related to the relocation of the embassy to Jerusalem.196 According to Kontorovich this

administrative change is an indication that the U.S. sees Jerusalem as one united city.197

Moreover, the location of the embassy is of interest. As mentioned before the U.S. embassy is

partly located on ‘no man’s land’. The U.S. also agreed in 1958 that the land around the

armistice line was ‘no man’s land’.198 As explained Israel illegally occupied ‘no man’s land’.

By locating the embassy on ‘no man’s land’, the U.S. underlined that they recognized Israel’s

sovereignty over the whole city. If the U.S. had only recognized West Jerusalem as the capital

of Israel, it could have searched a location which is entirely on the territory of West

Jerusalem.199 As mentioned before, recognition does not have to be explicit. Regarding the



192 Ibid 396

193 Oliver Holmes, ‘US downgrades consulate for Palestinians into Israel embassy unit’ The Guardian

(Jerusalem, 18 October 2018) <https://www.theguardian.com/world/2018/oct/18/us-palestinian-israel-consulate-

general-embassy-merge>, accessed 14 April 2021



195 Ibid 396

196 On the Merging of U.S. Embassy Jerusalem and U.S. Consulate General Jerusalem/Press Statement,

https://il.usembassy.gov/on-the-merging-of-u-s-embassy-jerusalem-and-u-s-consulate-general-jerusalem/,

accessed 14 April 2021



198 UNSC Verbatim Record (22 January 1958) UN Doc S/PV.809, paras. 29-31

199 Hughes (n 13)22-23

31

location of the embassy, implicit recognition of the ‘no man’s land’ as territory of the State

Israel can be stated.200

Taking the whole picture into account one needs to conclude that the U.S. recognized the

whole city of Jerusalem as the capital of Israel in 2017,201 which was then manifested by the

relocation in 2018.

2. Violation of international law

Having explored that the U.S. did recognize Jerusalem – the whole city of Jerusalem – as

Israel’s capital, the time has now come to assess if the U.S. violated the duties of non-

recognition, which were examined earlier.

The recognition of the whole city of Jerusalem is firstly a violation of the duty of non-

recognition of the occupied territories as part of Israel. It is an important content of the duty of

non-recognition to withdraw diplomatic missions from Jerusalem. The violation is especially

manifested by the location of the embassy, which is partly on occupied territory in Jerusalem.

No proper justification has been given for the location issue.

Internal law, as the U.S. embassy act is no justification for violations of international law,

Article 32 ARSIWA.202

Secondly it has to be determined whether the U.S. also violated the duty of non-recognition of

the illegal situation resulting from the construction of the wall, so the violation of the right to

self-determination of the Palestinian people. President Trump mentioned that the U.S. would

not take position on “any final status issues”.203 The author is of the view that the U.S. does

not deny a right to self-determination for the Palestinian people, nor accept the Wall or the

settlements and administrative changes in East Jerusalem through the relocation of the

embassy. The violation of international law of the U.S. is related to the city of Jerusalem, but

not to the people. The recognition of Jerusalem may be a stronger positioning in the conflict,

but it is not related to Israel’s concrete behaviour in East Jerusalem and other occupied

200 Ibid 32

201 Lagerwall (n 40) 33

202 Kattan (n 138) 85


32

territories. Therefore the U.S. did not violate the obligation not to recognize the illegal

situation resulting from the construction of the wall.

Summarized the U.S. violated public international law by announcing the relocation of the

U.S. embassy to Jerusalem and finally also relocating it, because it violated the duty of non-

recognition of the whole city of Jerusalem as capital of Israel.

VI. Consequences: De jure null and void?

Now that a violation of international through the U.S. has been established the question arises:

what does follow from this?

In reaction to the announcement of the U.S. government the General Assembly held in 2016

that “any decisions and actions which purport to have altered the character, status or

demographic composition of the Holy City of Jerusalem have no legal effect, are null and

void and must be rescinded in compliance with relevant resolutions of the Security

Council”.204 These words are clear and impressive. But the question is if they reflect the

situation regarding the legal consequences under international law. In the following invalidity

and nullity, as well as consequences under the law of international responsibility will be

addressed. Also, Article 41, 42 and 48 ARSIWA will be taken into account.

A breach of international law has already been confirmed and this breach is also attributable

to the U.S., as the president is clearly an organ205 of the state, Article 4 ARSIWA. This

internationally wrongful act thus opens the possibilities of the law of international

responsibility, Article 2 ARSIWA.

1. Invalidity and nullity in international law

Even if the discussed violation may be a bit more unusual than violations of treaty obligations

or classic customary international law, there is no reason why the established violation of

international law should not follow general rules of international law, when it comes to the

legal consequences.


205 Case concerning military and paramilitary activities in and against Nicaragua (n 145) para.109

33

It is uncontested that a breach of international law leads to illegality under international

law.206 Moreover scholarship is of the opinion that state conduct can be invalid.207 This does

not mean that internal acts can directly rendered invalid by international law.208 So declaring

invalidity is not same as invalidity de jure.209

Complicated as with invalidity also the concept of nullity is not as clear as it may be in

domestic law systems.210 Nullity claims could be made on the basis of the maxim ex injuria

jus non oritur,211 which was considered in another context before. Nullity is a term which is

associated with jus cogens. Classically breaches of obligations of peremptory norms are

null.212

Apart from breaches of jus cogens norms, nullity claims in international law can be short-

lived and ambiguous. What was considered being null can be declared valid later if the

circumstances seem to require it. Or acts which are first valid, can change to be determined

null by the international community.213 So nullity claims are a strategic tool to protest and to

formulate the will of change in international law.214 The author agrees with Reisman and

Pulkowski that “non-recognition is a strategy deployed in the process leading towards

nullity”.215 It depends on the circumstances if “nullities” are invalid and without legal effects,

or not.216 Rightly these findings do not breath the spirit of legal certainty and efficiency.217

206 Yoshifumi Tanaka, ‘The Legal Consequences of Obligations Erga Omnes in International Law’ (2021)

Netherlands international law review <https://link-springer-

com.proxy.uba.uva.nl:2443/content/pdf/10.1007/s40802-021-00184-9.pdf>, accessed 19 April 2021, 14

207 Crawford (n 24) 578

208 Tanaka (n 206) Chapter 3.1.

209 Arcari (n 133) 11-12

210 W. Michael Reisman, Dirk Pulkowski, ‘Nullity in International Law’ in Rüdiger Wolfrum (ed), The Max

Planck Encyclopedia of Public International Law (OUP 2006), para.3

211 Ibid para.18

212 Robert Kolb, Peremptory International Law - Jus Cogens: A General Inventory (Hart Publishing 2015) 104

213 Reisman, Pulkowski (n 210) para. 3

214 Ibid para. 32

215 Ibid para. 29

216 Ibid para. 38

217 Ibid para. 36

34

Applied to the case of the U.S. embassy in Jerusalem a violation of jus cogens through the

relocation cannot be confirmed and therefore the nullity of the relocation cannot be

considered without further ado. A duty of non-recognition of Jerusalem as Israel’s capital

does not reach the jus cogens status. Especially regarding the criterium that peremptory norms

can only be changed by another norm of jus cogens, Article 53 VCLT, doubts arise. A lot of

states and the UN218 have explained that negotiations by the parties can change the status of

Jerusalem. This means that an agreement would be accepted by the international community,

but it means also that a ‘simple’ agreement between some states could terminate the duty of

non-recognition of Jerusalem as Israel’s capital, when Israel’s violation of international law

ceases.

But regarding the relocation of the U.S. embassy the first step for successful nullity has

insofar been made, as the international community expressed through the General Assembly a

nullity claim when it expressed in the Emergency Session Resolution, that “decisions and

actions […] have no legal effect, are null and void”219. If this nullity claim can develop legal

power depends on the following behaviour by states. Apart from Palestine, no state has

brought a nullity claim to the ICJ, so a formal international annulment process is currently not

at stake. Because of the above described position of Israel regarding Jerusalem it is unlikely

that from this main actor nullity claims will be brought into practical behaviour by for

example expulsion of diplomats.

The here represented view is that a nullity process started, but that the relocation of the U.S.

embassy is not null (yet). This does not mean that no legal consequences exist, which will be

showed in the following section.

2. International Responsibility as the answer to a breach of international law

Apart from invalidity and nullity the law of international responsibility is nowadays the

regime to think of.



35

The rules of international responsibility articulated by the ILC are governed by the functions

‘maintenance of the international rule of law’ and ‘remedial justice’.220 Cessation,221 Article

30 (a) ARSIWA,222 assurances and guarantees of non-repetition223, Article 30 (b)

ARSIWA,224 serve the ‘maintenance of the international rule of law’. The different forms of

reparation, Articles 34-39 ARSIWA, serve the function of ‘remedial justice’.225 The present

author is of the view that mainly cessation and satisfaction need to be addressed in the context

of the U.S. embassy in Jerusalem.

The main consequence regarding the U.S. embassy is sincerely cessation, Article 30 (a)

ARSIWA. As the U.S. embassy is still in Jerusalem the U.S. is under an obligation to cease

the act of recognition. This would for example include the relocation to Tel Aviv, thus the

compliance with Security Council Resolution 478226. It is important to note that cessation is

not an option for the U.S., it is a duty even without claim of an injured state.227 If the U.S. did

so, the rule of law – the compliance with the duty of non-recognition – would be re-

established. It seems that the General Assembly also referred to the duty of cessation claiming

that measures “must be rescinded”.228

Regarding satisfaction the ILC comments that satisfaction is mainly the answer to injuries of

“symbolic character, arising from the very fact of the breach of the obligation”.229 Article 37

(2) ARSIWA names forms of satisfaction as the acknowledgment of the breach, an expression

of regret or a formal apology. Satisfaction seems adequate regarding the recognition of the

220 Dinah Shelton, ‘Righting Wrongs: Reparations in the Articles on State Responsibility’ [2002] The American

Journal of International Law, Vol. 96, No. 4, 834

221 Established e.g. in Legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965

(Advisory Opinion) [2019] ICJ Rep 95, para.183

222 ILC‚ ‘Yearbook of the International Law Commission 2001’ UN Doc A/CN.4/SER.A/2001/Add.1, 89; Dinah

Shelton, ‘Righting Wrongs: Reparations in the Articles on State Responsibility’ [2002] The American Journal of

International Law, Vol. 96, No. 4, 841

223 Established e.g. in LaGrand Case (Germany v United States of America) (Judgement) [2001] ICJ Rep 466,

para.128

224 Shelton (n 220) 847

225 Ibid 844

226 See above

227 Shelton (n 220) 840



36

U.S. of Jerusalem as capital of Israel. This would be an acknowledgement of the duties of

international law and an apology for the Palestinian side by acknowledging that the conflict

about East Jerusalem is not settled.

3. Invocation of responsibility Article 42 and Article 48 ARSIWA

Moreover, the question is also who can invoke the international responsibility of a state.

Central are thereby Article 42 and Article 48 ARSIWA. While Article 42 ARSIWA addresses

the invocation of responsibility by an injured state, Article 48 ARSIWA deals with the

invocation of responsibility by not injured states.

Article 42 (b) (i) explains that it also possible to invoke the responsibility as an injured State

when the obligation is owed to the international community as a whole and specially affects

that State. Specially affected means thereby that the breach of international law has particular

adverse effects on the State invoking responsibility.230 As analysed before the duty of non-

recognition of Jerusalem as capital of Israel has erga omnes character, so that the duty is owed

to the international community.231 The question is if the duty specially affects one state.

Jordan, which controlled East Jerusalem before the territory was occupied by Israel in 1968,

has renounced the territory in 1988232 so that it seems excluded that the breach of international

law through the U.S. affects Jordan specially. Regarding ‘Palestine’ it is disputed whether

‘Palestine’ is a state.233 The author is of the view that it is not possible to determine an injured

State regarding the breach of the duty of non-recognition through the U.S, as long as the

statehood of ‘Palestine’ has not been confirmed.

Article 48 (1) (b) ARSIWA entitles all states to invoke the responsibility of another state, if

the violated obligation has erga omnes character. Since the duty of non-recognition of

Jerusalem as capital of Israel has erga omnes character,234 Article 48 (1) (b) ARSIWA is

fulfilled. Every State could invoke the responsibility of the U.S. Possibly the states have also

230 Ibid 119

231 See above

232 Encyclopedia Britannica (last updated 9 April 2021) Jordan – Renouncing claims to the West Bank

<https://www.britannica.com/place/Jordan/Renouncing-claims-to-the-West-Bank>, accessed 7 June 2021

233 See above

234 See above

37

done so through the resolution of the General Assembly in 2017.235 The resolution could be

understood not only as a mere critique, but also as raising a claim against the behaviour of the

U.S.236 The invocation of responsibility through not injured States, is limited, Article 48 (2)

ARSIWA. Cessation can be claimed, Article 48 (2) (a) ARSIWA, but reparation only in the

interest of the injured State or the beneficiaries of the obligation breached, Article 48 (2) (b)

ARSIWA. This is still problematic as long as ‘Palestine’ is not a state and can therefore not be

the injured state.

4. The role of Article 41 ARSIWA

In the reaction to President Trump’s announcement in 2017 the General Assembly also

demanded the states not to recognize acts which are contrary to resolutions of the Security

Council.237 This sounds like another duty of non-recognition for the international community.

Considering a duty of non-recognition of breaches of international law, one comes back to

Article 41 (2) ARSIWA. Considering the requirements of Article 41 (2) ARSIWA the breach

of a peremptory norm would be the violation of the duty of non-recognition of Jerusalem as

Israel’s capital. But the duty of non-recognition of Jerusalem as capital of Israel does not have

the status of a peremptory norm.238 Consequently, a duty of non-recognition of the U.S.

embassy in Jerusalem does not meet the criteria of Article 41 (2) ARSIWA.

This does not mean that a duty of non-recognition of the relocation does not exist at all. It is

indeed mentioned in Security Council Resolution 478, because all states, not only the U.S.,

are under a duty of non-recognition of actions altering the status of the holy city,

independently from the fact which state acts.

5. Interim result

The U.S. are internationally responsible for their violation of a duty of non-recognition of

Jerusalem as Israel’s capital and must cease the relocation of the embassy. Other




238 See above

38

consequences may be possible. The international community cannot recognize the relocation

of the embassy as a legal act under current international law.

VII. Conclusion

This thesis concludes that the status of Jerusalem is still a special one – not only morally or

politically. A duty of non-recognition of Jerusalem as the capital of Israel has been violated

by the U.S. through the recognition of Jerusalem as Israel’s capital.

Like the historian Simon Sebag Montefiore wrote in this famous biography of Jerusalem:

“Not everyone will like my approach – after all, this is Jerusalem”239, this is also true for this

work on the U.S. embassy in Jerusalem. Even if this thesis is used to be a legal one, it would

be illusive to say that it is always possible to separate the legal from the political sphere.

When it comes to Jerusalem, a city of such a special character, this is really difficult. As the

world is aware of Jerusalem’s history and character the UN cannot let go the reference to the

‘status’ of Jerusalem. But it is also clear, that the legal question surrounding the U.S. embassy

in Jerusalem would be less problematic and less interesting, if we were not talking about

Jerusalem.

While the author is fully aware of the conflict in the Middle East, this work tries to go the way

of a legal analysis based on principles of public international law. It is also very important to

remember that it tries to argue on the basis of law, which is stipulated by States, by the

members of the UN. The reflected opinions of the author are legal ones, not of political

nature.

One can only agree with Lagerwall that the case of the U.S. embassy in Jerusalem shows that

the states stand behind their commitment to non-recognition,240 as a general trend to recognise

Jerusalem as the capital of Israel has not followed. But furthermore, the author is of the view

that the relocation of the U.S. embassy shows again that important and strong states can act

contrary to international law without tangible consequences. Even if an international outcry

was provoked and the General Assembly found a clear language in condemning the relocation

of the embassy to Jerusalem, other consequences which would force the U.S. to withdraw its

embassy from Jerusalem, did not follow. Palestine’s proceedings at the ICJ may get a bit of

239 Simon Sebag Montefiore, Jerusalem The Biography (Weidenfeld & Nicolson 2011) xxvi

240 Lagerwall (n 40) 44

39

attention when questions of jurisdiction and maybe on the merits will be cleared. But apart

from that it seems that the world community has other things to do than reflecting the.

recognition of Jerusalem as Israel’s capital by the U.S. Maybe this is due to the political will

to look forward as reacting to U.S. decisions will not solve the conflict in the Middle East.

But one should also bear in mind that history plays an important role in international conflicts,

and the relocation of the U.S. embassy is now part of the history of the conflict between Israel

and Palestine.

40

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Appendices

Image No.1: Armistice Line Jerusalem 1949 - 1967

Source: <https://2.bp.blogspot.com/-2SMSEc3iP-I/VToOdJELK6I/AAAAAAAAEv0/xric74xPToI/s1600/map-

of-jerusalem-after-reunification.jpg>, accessed 24th March 2021

Image No. 2: Map Armistice Lines 1949 -1967

Source: <https://www.researchgate.net/figure/Armistice-lines-between-Israel-and-the-Arab-countries-

1949_fig4_277595121>, accessed 24th March 2021

47

Image No. 3: U.N. Resolution 181: The Partition Plan of 1947

Source: <https://www.researchgate.net/figure/UN-Partition-Plan-November-1947_fig1_277595121>, accessed

24th March 2021

Image No. 4: Territories occupied by Israel since June 1967

Source: <https://www.un.org/unispal/document/auto-insert-201336/>, accessed 24th March 2021