May 2018 - The United States open their embassy in Jerusalem

Anne Lagerwall, Centre for International Law

Anne Lagerwall, how do you explain the United States' decision to move their embassy to Jerusalem?

The decision implements a law adopted by the US Congress in 1995, according to which the United States should recognise Jerusalem in its entirety —east and west— as the capital of Israel and, therefore, relocate its embassy there by May 31, 1999. Yet no US president has actually done this until Donald Trump, as it could jeopardise the country's interests, a possibility that the law itself had actually taken into account. As long as it was not enforced, this law was not in violation of international law. However, its implementation on May 14, 2018 —the seventieth anniversary of the creation of Israel— flew in the face of international law.

How is this decision a breach of international law?

International law does not define any particular status for Jerusalem, but it does provide a specific method by which this status should be defined: Jerusalem's status should not be imposed by force, but rather negotiated. Should its status be imposed by force, then other states must refuse to recognise it. This principle was applied to Jerusalem many times since the creation of Israel.

Can you tell us more?

In 1967, following the ‘Six-Day War’ when Israeli forces took seized East Jerusalem, the United Nations Security Council issued a reminder that taking over territories using military force was unacceptable. In 1980, as Israel was attempting to affirm its sovereignty over Jerusalem, the Security Council asked states that had opened embassies there to withdraw them. Finally, in 2017, following President Trump's decision to recognise Jerusalem as the capital of Israel and to relocate the US embassy there, the General Assembly of the United Nations once again advised states that they had a duty not to establish diplomatic missions in the holy city.

This principle is at the core of international law and is connected to the ban on military force: if war is not allowed, then it makes logical sense not to allow approving the results of war. Doing otherwise might encourage more powerful states to adopt a ‘fait accompli’ policy.

So how can we enforce international law?

There is no international police force that can be deployed on the ground to enforce international law and make sure the US embassy is removed from Jerusalem. The strength of international law lies first and foremost in its use of words and discourse. In this case, for instance, Palestine initiated proceedings aimed at having the United States prosecuted by the International Court of Justice (the principal judicial organ of the United Nations), whose activity is closely watched by the international community. In addition, over a hundred states have voiced their disapproval and kept their embassies in Tel Aviv. The United States are now relatively isolated, and their relationship with the international community is weakened as a result.

Is the election of Palestine as chair of the G77 (group of developing countries) another way to express opposition to the US?

In principle, the G77 can only have a member state of the United Nations as its chair. Yet at the moment, Palestine is only an observer state: in order to become a full-fledged member of the UN, it must be recommended by the Security Council, an organ within which the United States do not hesitate to resort to their veto power. By approving Palestine as chair of the G77 and giving it the additional powers required to perform its role, the General Assembly demonstrates its support of the Palestinian state and recognises its willingness to play an important part on the diplomatic scene. This decision is also a setback for the United States and Israel - who were virtually alone in denouncing it -, and most likely a way for other states to express their disapproval of the US' position.