The Dispute over the Sovereignty of Jerusalem: EU Policies and the Search for Internal Legal Coherence and Consistency with International Law

Abstract

This article examines the EU's post-1967 conflict resolution policies pertaining to the dispute over sovereignty over Jerusalem. Analytically, it provides the first in-depth, genealogical analysis of the evolution of the EU policies, distilling four 'generations' of them, while normatively, it offers a critique of the consistency, coherence and legal cogency of such policies and their compatibility with international law. Yet the importance of this article lies beyond the particular case-study of Jerusalem, as it establishes that EU conflict resolution policies may, drawing on the work of Aggestam, be contextualized within the conceptual in the EU's self-perceived role, from 'what it is' to 'what it does', from passively representing 'power of attraction' to adopting the proactive role of an 'ethical power'. In such a role, international legal norms upon which the EU strives to premise its contribution to the resolution of disputes over sovereignty serve it in both a constitutive and an instrumentalist manner. However, and as the article has striven to demonstrate, the EU faces significant difficulties when attempting to assist in solving disputes over contested territories, based on rule-based diplomacy and strict commitment to international law, while having to face well-entrenched realities and accommodate realpolitik considerations. Consequently, the EU cannot ensure at all times its strict compliance with international law as such compliance ignores political realities and such ignorance mitigates, in turn, the already compromised centrality and effectiveness of the EU as a Normative Power in the Middle East and elsewhere. Thus, the EU will have to continue to seek the via media between international legality and political reality, strict observance of international law and effectiveness, lex ferenda and lex lata and between Constructivist-led, universalistic, value-based conflict resolution policies and more Realist-led, self-interest, security-based and hegemony-motivated policies.