In a recent meeting at the UN Security Council that took place on 15 May, 24 hours after the US official opened its embassy in Jerusalem, we heard from a British delegate that: “Our position on the status of Jerusalem and the move of the American embassy is well known. Our position is clear and long-standing. It is that the status of Jerusalem should be determined in a negotiated settlement between the Israelis and the Palestinians, and that Jerusalem should ultimately be the shared capital of the Israeli and Palestinian States.”
The position of France´s delegate on Jerusalem at this meeting (see French version) was the following: “The question of Jerusalem concerns the entire international community. Jerusalem has been the subject of several Security Council resolutions. In that context, the status of Jerusalem should be considered by the parties in their discussions with a view to a peace agreement. In line with the consensus that has prevailed for 70 years in the international community, France does not recognise any sovereignty over Jerusalem without agreement. Following the June 1967 conflict, we therefore did not recognise the annexation of East Jerusalem, which is part of the occupied territories under international law.”
“Similarly, in 1980, we did not recognise Israel’s unilateral acts with regard to Jerusalem. The Security Council adopted resolutions 476 (1980) and 478 (1980), which provide for two principles in particular. First, any decision or action to alter the status or character of Jerusalem is considered null and void and must be rescinded. Secondly, all States Members of the United Nations that have established diplomatic missions in Jerusalem must withdraw them from the city. That is what happened as a result of resolution 478 (1980) without exception. Jerusalem should become the capital of two States – Israel and Palestine – in line with modalities that must be defined through negotiation. No unilateral decision can replace that. France condemned the decision that was taken by the United States in December and implemented yesterday.”
In this very same meeting, we heard from Kuwait´s delegate that: “The same is true of the relocation of certain diplomatic missions to Jerusalem, which is a blatant violation of the relevant Council resolutions, particularly resolutions 476 (1980) and 478 (1980), which considered such unilateral actions null and void, with no legal effect. We emphasise that such steps, which constitute violations of international law, will undermine efforts towards peace, exacerbate tensions, flair the rage and threaten to push the region into more violence, chaos and instability.”
No draft resolution on the transfer of the US embassy to Jerusalem took place at this meeting on 15 May. However, all the delegates at the UNSC had in mind the result of a draft resolution (see full text) vetoed by the US on 18 December 2017: the result of the vote was 14 votes in favor and 1 single vote against: US vote (veto). No abstention of other States, and no State ready to support the US position were registered: an extremely rare situation for the US delegates in New York.
In Latin America we had the opportunity to register all the official reactions of States in the region when the US President announced in December 2017 his intention to transfer its embassy to the Holy City.
The different positions presented during this meeting of 18 December at the UN Security Council shows the absolute isolation of the US position and the strong consensus among UNSC members on Jerusalem´s international status.
Such a consensus on the illegality of the US position could be examined now by the International Court of Justice (ICJ), through an advisory opinion to be submitted by the UN General Assembly through a resolution (as done concerning the illegality of Israel Wall in Jerusalem). The advisory proceedings allow States to present their legal opinion to the ICJ.
It is probable that Israel, the US and their allies in the Pacific Ocean (Marshall Islands, Micronesia, Palau and Nauru) as well as Guatemala (who opened its embassy in Jerusalem on 16 May) and Paraguay (on 21 May) will vote against, and that some others will abstain when voting a resolution asking the ICJ for an advisory opinion. This is not a problem for ICJ nor for international law.
On the other hand, many States that do not recognise Palestine as a State could, in response to the unilateral decision of the US administration, take the decision of such recognition. The recognition by Sweden in 2013 of Palestine shows EU members that nothing bad happens to a State when deciding to support Palestine´s effort to be recognised as a State, despite the well-known arguments of Israel against such recognition. In Latin America, after Costa Rica´s recognition of Palestine in February 2008, all the States of the region decided to follow Costa Rica´s position in the following years, with two notable exceptions: Colombia and Panama (both of which receive major US cooperation in the region).
It has to be recalled that interesting votes took place at the end of 2014 in different legislative powers in Europe. A resolution on the recognition of Palestine was adopted on 18 October 2014 by the British Parliament with 274 votes in favour and only 12 against. In Spain the result of a vote on a similar resolution that took place on 18 November 2014 was 319 votes in favour, one abstention and 2 votes against.
The strong consensus on Jerusalem among the members of the UN Security Council must be capitalised on in legal terms. The next UN General Assembly could be a wonderful place to do so.