Abstract
AbstractThe article addresses the legality of the relocation of the United States embassy from Tel Aviv to Jerusalem in light of the duty of non-recognition and the international consensus on the two-state solution. Analysing the massive reaction of states to the United States administration’s decision, the article takes stock of the practice on the status of Jerusalem and on the Israeli-Palestinian issue more broadly. The authors conclude that the almost unanimous negative reaction of states and their commitment to the two-state solution will remain a dead letter if the solution to the crisis is left to a future bilateral agreement.
Highlights
We classified all of these statements under column 8 because, notwithstanding their being clearly different in terms of the political stance they express, from a legal point of view they both admit that the final status of Jerusalem revolves around the division of the city into two parts
While we are fully aware that the scholarly debate on the duty of non-recognition is wide and encompasses complex aspects ranging from the nature of the primary norm to be breached, the relevance of a centralized ascertainment of the breach, the consequences of the duty, and the prohibited conduct,61 it must be acknowledged that the practice of states detailed above is quite rudimentary when assessed in the light of the subtleties emerging from the literature
The answer that states provide to the first inevitably impacts on the second and on the capacity of the Palestinian people to exercise their right to self-determination
Summary
The position of the US concerning Jerusalem has evolved over the years and can be said to have gone through at least three different phases: first, the phase of the ‘international’ solution, according to which the US refused to recognize Israeli sovereignty over Jerusalem and pushed for the internationalization of the city; second, the phase of the ‘negotiated’ solution; and, eventually, the phase of the recognition of Israeli sovereignty over Jerusalem, with a negotiated solution concerning the geographical boundaries of such sovereignty.. Article 7 – authorizing the President to postpone opening the embassy in Jerusalem by successive six months increments – was added to the Jerusalem Embassy Act. 45Secretary of State, Jerusalem and the Peace Negotiations (Statement before the UNSC on August 20, 1980), supra note 38; Department of State, Foreign Relations of the United States, 1977-1980, Volume IX, Arab-Israeli Dispute August 1978December 1980 (Telegram From the Department of State to the Embassy in Egypt), at 1316, available at s3.amazonaws. In his speech of 6 December 2017, he recognized ‘Jerusalem as the capital of Israel’ but left open the question of the final status of the city ‘including the specific boundaries of the Israeli sovereignty in Jerusalem, or the resolution of contested borders’.54 This caveat, together with US previous practice on the matter, leaves blurred the reach of the policy change. The US administration grounded its decision on ‘fundamental reality’ and notably on the circumstance that ‘Jerusalem has been the political, cultural and spiritual homeland of the Jewish people for thousands of years’; on the other hand, the US ‘took great care not to prejudge final status negotiations in any way, including the specific boundaries of Israeli sovereignty in Jerusalem, which remains a subject to be negotiated only by the parties’.56 On 14 May 2018, the US embassy in Jerusalem was inaugurated in the ‘no man’s land’ across the 1948 cease-fire lines.
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