The United Nations Security Council (UNSC) resolution S/2017/1060, calling for withdrawal of US President Donald Trump’s recognition of Jerusalem as the Israeli capital, was not adopted owing to the fact that the US used its veto power in the UNSC.
Out of 15 members of the UNSC, the US was the only member that voted against the resolution. Perhaps the most painful part of the proceedings to watch was when the President of the Security Council stated: “Fourteen votes in favour, one vote against. The draft resolution has not been adopted owing to the negative vote of a permanent member of the Council”. These words reveal an inherent (and intentionally designed) problem of the UN system and it’s functioning.
Article 108 of the UN Charter explicitly provides for amendments to the Charter to enter into force “when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council”. Therefore, it is clear that there is no hope of the UNSC ever being able to function in a more democratic and legitimate manner because the very amendments to the Charter required to bring about such change are practically impossible.
Despite the fact that the developing world has a clear majority in the UN General Assembly (UNGA), it is ultimately the Security Council, under Articles 24 and 39 of the UN Charter, that has the key role and primary responsibility for the maintenance of international peace and security and the determination of the existence of any threat to the peace, breach of the peace or act of aggression. Consequently, the US is able to block any and all potential action against its own breaches of the peace and otherwise, as well as action against whomever it deems its friend of the year.
While he was Secretary of State, John Kerry also clearly condemned Israeli PM Netanyahu’s coalition as being “the most right-wing in Israeli history, with an agenda driven by the most extreme elements”. It is these extreme elements that President Trump has legitimised through his disastrous decision
It is worth mentioning here UNSC Resolution 2334 (2016) which deemed Israeli settlements in occupied Palestinian territory (including East Jerusalem) without “legal validity” whilst simultaneously expressing that these settlements constitute “a flagrant violation under international law and a major obstacle to the achievement of the two-State solution”. Under this Resolution, the UNSC reiterated that it “will not recognise any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations”.
Resolution 2334 (2016) was only passed owing to the fact that the US abstained rather than exercising its veto power. Up until President Trump came into power, the US maintained its support for a two-state solution, with John Kerry affirming in December 2016 that this was “the only way to achieve a just and lasting peace between Israelis and Palestinians”. In fact, while he was Secretary of State, Kerry also clearly condemned Israeli PM Netanyahu’s coalition as being “the most right-wing in Israeli history, with an agenda driven by the most extreme elements”. It is these extreme elements that President Trump has legitimised through his disastrous decision.
Apart from US state practice, which has only recently seen a disturbing shift vis-à-vis the conflict in occupied Palestine, there is consistent practice of the UNGA in its resolutions (recognised as “soft law”), condemning Israeli settlements and violations of human rights and the laws of war. Similar evidence of the opinio juris of States is seen in the numerous UNGA resolutions recognising the right of the Palestinian people to self-determination (for instance, A/RES/70/141).
The EU has also maintained its position against recognition of Jerusalem as the capital of Israel, citing “full EU unity” in support of maintaining the status quo. In fact, the EU has categorically stated that the fate of Jerusalem’s status can only be determined as a consequence of the peace talks between Israel and the Palestinians. Meanwhile, the OIC (comprising 57 States) has declared East Jerusalem to be the capital of Palestine. From all this, it is crystal clear that the overwhelming state practice and opinio juris of the international community is standing firm against Trump’s dangerous decision.
All this is important in the long-term with regard to achieving a two-state solution. While the US may be able to exercise its veto within the Security Council, the fact remains that it cannot alone hinder the development of a body of customary international law in support of a two-state solution. The legal status of Jerusalem cannot be determined unilaterally by the US, particularly when one decision by Trump contradicts the entire practice of the US as has existed over the last many decades. This is indeed a dangerous decision but it may not be as decisive as we fear provided the international consensus against it is maintained.
While it may be idealistic to suggest, there is a very real option available to the international community that gives some semblance of hope for a solution centered on attainment of viable and lasting peace in the Middle East. That solution is found in the strength of multilateral cooperation against US unilateralism within the framework of international law. At times when we are made to believe that all hope is lost, it doesn’t hurt (and may in fact prove fruitful to some degree) to look for solutions within the framework of a system being disregarded by a major player within that system — a player that has to eat, sleep and breathe in that very system. After all, no man (and no State) is an island.
The writer is a lawyer
Published in Daily Times, December 20th 2017.