Abstract
This article comments upon two recent decisions of the Tribunal of Rome concerning the international legal status of Jerusalem. The issue before the court was whether rai, Italy’s public service broadcasting company, had aired false information by presenting the city as the capital of Israel. After summarizing the key aspects of the historical process which led to the current arrangement of Jerusalem, the article highlights that the international regulation of the city’s legal status mainly depends on the customary principle of non-recognition of territorial acquisitions by the use of armed force. It then analyses how the non-recognition regime affects the international legal status of Jerusalem. In this regard, it is argued that the position – taken by the Tribunal of Rome in the first of its two decisions – that Jerusalem is not recognized as the capital of Israel under international law seems excessive. The non-recognition regime only affects the status of East Jerusalem, while Israeli sovereignty over West Jerusalem appears largely uncontroversial. Therefore, defining Jerusalem as the “disputed” capital of Israel – as done by the tribunal’s second decision – is a more accurate depiction of the complexities surrounding Jerusalem’s status, which should eventually be defined through negotiations between the involved parties.
1 Introduction
The international legal status of the city of Jerusalem recently came under the scrutiny of the Tribunal of Rome. rai, Italy’s public service broadcasting company, was accused by two Palestinian associations of having aired false information on the city by presenting it as the capital of Israel. The associations requested a judicial order enjoining rai to issue a corrigendum and to publicly declare that the international community does not recognize Jerusalem as Israel’s capital. This action triggered a legal discussion on one of the most intricate contemporary international questions, namely the Israeli-Palestinian conflict and the status of the Holy City. The Tribunal delivered two inconsistent interim orders of protection in close succession. In the first one, it wholly subscribed to the applicants’ view.1 The second order, however, annulled the first decision and adopted a more nuanced position, basically accepting that the city can be regarded as Israel’s (albeit “contested”) capital.2
This paper succinctly discusses the legal arguments that arose in the course of these precautionary proceedings. Without delving into an in-depth examination of such a long-standing dispute, it nonetheless aims to take this opportunity to revisit one thorny question about the status of Jerusalem – namely whether, to what extent and under which conditions the city may be deemed to be Israel’s capital from the standpoint of international law.
We will begin by describing in greater detail the facts of the case, the arguments of the parties and the content of the orders (Section 2). We will then summarize, with a view to provide the necessary background for the ensuing discussion, the key aspects of the historical process which led to the current arrangement of Jerusalem (Section 3) and we will highlight that the international regulation of the city’s legal status mainly depends on the customary principle of non-recognition of territorial acquisitions by the use of armed force (Section 4). Subsequently, we will turn to analyse how the non-recognition regime affects the international legal status of Jerusalem. In this regard, we will argue that the position of the applicant associations that Jerusalem is not recognized as the capital of Israel under international law seems excessive. The non-recognition regime only affects the status of East Jerusalem, while Israeli sovereignty over West Jerusalem appears largely uncontroversial (Section 5). We will conclude that the content of the Tribunal’s second order constituted a more accurate depiction of the complexities surrounding Jerusalem’s status, which should eventually be defined through negotiations between the involved parties (Section 6).
2 The Recent Proceedings before Roman Judges Concerning the Status of Jerusalem
The circumstances which brought the complex issue of Jerusalem before the Roman judges are utterly peculiar. On 21 May 2020, in the course of a prime-time game show transmitted by rai,3 the presenter asked one of the competitors about the capital of Israel: “Tel Aviv”, was her swift and confident reply. Unfortunately for her, this answer was considered wrong and Jerusalem was instead suggested as the right solution. This apparently trivial event sparked considerable political discontent among Palestinian associations in Italy and the so-called Embassy of the State of Palestine. On 5 June, in a following episode of the show, the presenter apologised on behalf of the tv channel for causing unintentional embarrassment and controversy. He clarified that the programme was merely an entertainment show lacking any political intent and recognised that there are different opinions on the point. Finally, he stated that that specific question on the capital of Israel would not have been considered relevant for the purposes of the game.
The Palestinian associations, however, were left unsatisfied by this statement and brought the matter to the Tribunal of Rome. They contended that the previous release was drafted in a neutral fashion, thus presenting the facts disproportionately in favour of Israel and in a way detrimental to the expectations of the Palestinian people. In their view, the company had to mention not just that the international status of Jerusalem is currently controversial but also, and more specifically, that international law and the international community do not recognise Jerusalem as the capital of the State of Israel. rai, for its part, asserted that the two associations were not defending an objectively and definitively proved truth but were just supporting their own point of view. The status of Jerusalem, so the argument ran, is still the subject of contrasting interpretations in the present international debate. On this ground, rai considered that the claimants’ request went far beyond the protection normally provided for by the right to rectification in broadcasting systems.
By Order No. 31253 of 5 August 2020, the Tribunal’s Section specialized on the Rights of the Person and Immigration totally upheld the Palestinian point of view. As a preliminary procedural step, the judges recognised the full eligibility of both applicant Palestinian associations to claim for a different rectification of the wrong answer about the status of Jerusalem, their aim being precisely to ensure that the Italian public opinion receives accurate information on the Palestinian question. After a succinct review of relevant practice on the status of Jerusalem, and particularly of United Nations (“UN”) resolutions on the matter and of the position of the Italian government, the Tribunal concluded that under international law Jerusalem “cannot be considered” as the capital of Israel and imposed rai to air, in the show’s following episode, a statement so worded: “international law does not recognise Jerusalem as the capital of the State of Israel”.4 In other words, the Tribunal was not satisfied with a generic declaration on the status of Jerusalem being currently controversial. It also required that the international principle of non-recognition be expressly referred to.
The first Order was challenged by rai and completely reversed by a second Order (No. 28912 of 25 September 2020) issued by a different chamber of the Tribunal of Rome (the 18th Civil Section). In its pleading, rai reminded that rectification’s only goal is to provide restoration of the truth of objectively false information, in line with the right to freedom of expression under Article 10 of the European Convention on Human Rights (“echr”).5 Instead, the first Order had tried to add unnecessary details (non-recognition of the declaration of Jerusalem as the capital of Israel) to an objectively true information (the status of Jerusalem is currently controversial). rai also contested that Italy is internationally obliged under UN resolutions not to recognise Jerusalem as the capital of the State of Israel, pointing to the fact that the resolutions cited by the first Order were mere recommendations and could not be considered as sources of international law.
It is worth noting that not only Palestinian, but also pro-Israel associations intervened in this second case, bringing in a lively confrontation between two different positions from civil society institutions. Pro-Palestine organizations reiterated that the rectification offered by rai was unacceptable, the status of Jerusalem being far from disputed. Without making any distinction between UN binding and non-binding acts, they considered all of them, including recent General Assembly Resolution 72/40 of 21 December 2017,6 as imposing the obligation not to recognise the illegal designation of Jerusalem as the capital of the State of Israel. By contrast, the pro-Israeli associations backed the rai position. They affirmed that the news about Jerusalem being the capital of Israel is true. Israel, as the State de facto governing the territory of Jerusalem, has proclaimed this city as its capital in the free exercise of its sovereign powers, although this decision is not recognised by most States and is condemned by the UN.7 Coherently, it had moved there the seat of its main public institutions, namely the Government, the Parliament, and the Supreme Court.
This time, the Tribunal of Rome upheld rai’s claim, annulling the first Order by means of an interesting reasoning. In the first place, the appeal judges restated the basic principle, expressed by Article 32-quinquies of d.lgs. 177/05, that rectification should be invoked only to contrast objectively evident false reports. Secondly, they admitted that the statement “Jerusalem is the capital of Israel” is not per se false but just gives an incomplete information requiring further clarification. According to the tribunal, pictures are often transmitted to the public showing foreign Heads of State paying their visit to Jerusalem, thus recognising the centrality of the Holy City role among other Israeli towns, including Tel Aviv. Thirdly, they considered the second statement by rai whereby “the status of Jerusalem is disputed” as properly supplementing the incomplete information given during the show. Finally, the Tribunal cast doubt on including the relevant UN resolutions among the sources of international law. Their non-binding effects would not support a solution of the question based on these acts exclusively.
3 The Issue of Jerusalem within the Broader Israeli-Palestinian Conflict
In order to analyse the merits of the abovementioned Orders concerning Jerusalem, it is first of all necessary to briefly sketch out the historical process that led the status of this city to become one of the most entangled issues of the broader Israeli-Palestinian conflict.
From the First World War onwards, Jerusalem was subject to British administration as a part of the British Mandate for Palestine.8 By Resolution 181(ii) of 29 November 1947, the UN General Assembly recommended the partition of Mandatory Palestine into a Jewish State and an Arab State, with Jerusalem to be transformed in a corpus separatum – that is, an international city administered by the United Nations through its Trusteeship Council – and the establishment of an Economic Union of Palestine.9 The State of Israel declared its independence on 14 May 1948 in accordance with the UN-endorsed partition plan, which was however rejected by the Arab countries. A coalition of such countries immediately launched an unsuccessful armed attack against the newborn Jewish State. At the end of the 1948 war, Israel acquired control of swaths of territory well beyond the initial partition plan, including West Jerusalem. By contrast, Jerusalem’s Eastern sector, which included the Old City, found itself under Jordanian rule like the rest of the so-called West Bank.10 The armistice lines, collectively known as Green Line, were formalized through a series of armistice agreements.11 After 1949, Israel began transferring from Tel Aviv to West Jerusalem the bulk of its governmental institutions, including the Parliament (Knesset).12 On 23 January 1950, the Knesset officially proclaimed West Jerusalem as the capital of Israel.13
The city remained split into an Israeli sector and a Jordanian sector divided by a “no-man’s land” until the 1967 Six-Day War, at the end of which Israel acquired control of East Jerusalem as well as the West Bank, the Gaza Strip, the Golan Heights and the Sinai Peninsula. The municipal boundaries of Jerusalem were expanded by Israel to place the whole city under its jurisdiction. On 30 July 1980, the Knesset passed a Basic Law (i.e. a law having quasi-constitutional rank) declaring that “Jerusalem, complete and united, is the capital of Israel”.14
The international community widely objected to the de facto annexation of East Jerusalem. Notably, since Resolution s/res/242 (1967), issued at the end of the Six-Day War, the Security Council and the General Assembly have constantly proclaimed two basic principles as regulating the post-conflict assessment between Israel and its neighbours: “withdrawal of Israel armed forces from territories occupied in the recent conflict”; and “the termination of all claims or state belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State […] within secure and recognised boundaries free from threats or acts of force”.15 Following up on previous acts by the General Assembly on the same point, Security Council Resolution 252 (1968) of 21 May 1968 introduced the concept of invalidity of “all legislative and administrative measures taken by Israel to change the status of Jerusalem”.16 Israel is consequently called upon to rescind all such measures. The declaration of invalidity does not produce per se constitutional modifications at the domestic level. It is, rather, to be seen as a request to all States not to recognise extraterritorial effects to acts of government adopted by the occupying State in the contested area – a point that will be discussed in greater detail in the following Sections of this article.
Subsequent UN resolutions on Jerusalem have kept referring to the same model: condemnation for all measures and actions which purport to alter the status of the city; invalidity of such measures, including expropriation of land and properties thereon; request to rescind all measures incompatible with Palestinian rights.17 In sum, they have all recognised that the status of East Jerusalem under international law is presently that of a territory illegally occupied by military conquest. Also, the Security Council specifically censured the adoption by Israel of the aforementioned 1980 Basic Law. By Resolution 478 of 20 August 1980, it stated that the enactment of that Law constituted a violation of international law.18
Resolution 478 also called upon “those States that have established diplomatic missions at Jerusalem to withdraw such missions from the Holy City”,19 a statement with which, at the time, all States complied.20 More recently, however, the debate over the status of Jerusalem has been re-ignited by the decision by US President Donald Trump to officially recognise Jerusalem as Israel’s capital and to move the US embassy to Israel from Tel Aviv to Jerusalem.21 This decision has been overwhelmingly condemned by the international community.22 In Resolution es-10/19 (2017), adopted with 139 votes in favour, 9 opposed and 35 abstentions, the General Assembly “call[ed] upon all States to refrain from the establishment of diplomatic missions in the Holy City of Jerusalem, pursuant to Council resolution 478 (1980)”.23 A draft resolution to this effect was tabled at the UN Security Council and received 14 votes in favour, failing to be adopted only due to the US veto.24 Only a limited number of countries – namely Serbia,25 Honduras,26 Guatemala,27 Vanuatu and Nauru28 – have followed in the footsteps of the US, recognizing Jerusalem as the capital of Israel and moving their embassies to Jerusalem.
4 The International Law Sources Relevant to the Status of Jerusalem: in Particular, the Principle of Non-Recognition of Territorial Acquisitions by the Use of Armed Force
Going back to the proceedings concerning Jerusalem before the Tribunal of Rome, the abovementioned UN resolutions were pivotal to the Tribunal’s finding, in its Order No. 31253, that “international law does not recognize Jerusalem as the capital of Israel”.29 The Tribunal expressly referred to the abovementioned Security Council Resolution 478 of 20 August 1980 and General Assembly Resolution es-10/19 (2017) and considered both to be sources of binding treaty commitments. By doing so, it showed a very limited familiarity with international legal sources. Notably, the Tribunal failed to consider that all of the aforementioned Security Council resolutions – notably including Resolutions 242 (1967) and 478 (1980) – have been adopted under Chapter vi of the UN Charter.30 Chapter vi resolutions are considered by the majority of scholars not to be legally binding.31 General Assembly resolutions, for that matter, are undisputedly considered not to produce binding obligations upon the States voting in favor.32 These flaws in the identification of the relevant legal sources were rightly highlighted in the Tribunal’s second Order.33
Still, what stroke us the most in the Tribunal’s first Order is an absence of any reference whatsoever to custom as the main – or arguably the sole – source of general international law binding as such on all States, independently of any normative intervention by the UN. Yet, Article 10(1) of the Italian constitution roundly states that the “Italian legal system conforms to the generally recognised principles of international law”. For their part, scholars and case law reiterate on every occasion that Article 10 refers specifically to unwritten international law, namely custom and general principles of law. Finally, any Italian textbook will agree that customary international law enjoys a constitutional rank in the hierarchy of the Italian sources of law, precisely because these norms are referred to by a constitutional norm.34 The Tribunal’s failure to mention or consider customary sources is all the more perplexing insofar as the whole episode revolved, in fact, around a well-known principle of customary international law, namely the obligation of non-recognition of territorial acquisition by armed force and/or in violation of the right of peoples to self-determination.
The general duty of non-recognition has been enshrined in the Articles on the Responsibility of States for Internationally Wrongful Acts (“arsiwa”), adopted in 2001 by the UN International Law Commission (“ilc”). More specifically, it has been placed in Chapter III of the arsiwa, which deals with “[s]erious breaches of obligations under peremptory norms of general international law”. Peremptory norms are quite a controversial category both in international and domestic law.35 However, the ilc chose it as a suitably evocative terminology to accommodate variant definitions of international obligations protecting fundamental values of the international community.36 The general idea behind the ilc’s codification is threefold: a) there exist international substantive norms of a fundamental character “by reason of the importance of the rights involved”.37 These norms “prohibit what has come to be seen as intolerable because of the threat it presents to the survival of States and their peoples and the most basic human rights”;38 b) peremptory norms have a pronounced collective nature. Indeed, obligations stemming from those norms are owed to the international community as a whole, and every State has a legal interest in their protection;39 c) serious breaches of such obligations can attract additional consequences, not only for the responsible State but for all other States.
The collective reactions taken by States and international organisations against breaches of peremptory norms may take various forms. For instance, the arsiwa provide that all States are entitled to invoke responsibility for such breaches.40 The customary obligation not to recognise as lawful a situation created by a serious breach of peremptory norms of general international law is another of such forms. According to Article 41(1) of the arsiwa: “States shall cooperate to bring to an end through lawful means any serious breach within the meaning of Article 40”. In turn, Article 42(2) specifies that “[n]o State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation”.
Both cooperation and non-recognition remain concepts of a general nature to be further developed in the practice, mainly through UN resolutions and judicial precedents.41 So far, they have been mostly applied in relation to territories illegally seized and detained using armed force, with a view to annexing or politically controlling them. These wrongful acts are unanimously considered as serious breaches of peremptory norms.42 The same holds true for foreign military occupation of territories in violation of the right of peoples to self-determination, especially invoked by inhabitants of European overseas empires seeking independence from former colonial powers.43 Resort to armed force to deny self-determination may in turn degenerate into the commission of gross violations of human rights. Marina Mancini, in her recent seminal book, has demonstrated that, as a matter of customary international law, the obligation of non-recognition undoubtedly encompasses States and other territorial acquisitions resulting from the use of armed force, the violation of the right of peoples to self-determination, and the practice of racial discrimination.44 From this perspective, the duty of non-recognition seems just a modality of the broader obligation to cooperate to bring foreign occupation to an end.
Basically, the obligation of non-recognition aims to prevent de facto occupation from becoming a legitimate acquisition on the simple passage of time. In other words, it inhibits effectiveness from turning into validity.45 As the icj put it in the 2004 Advisory Opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, “the construction of the wall and its associated regime [could] create a ‘fait accompli’ on the ground that could well become permanent, in which case, and notwithstanding the formal characterization of the wall by Israel, it would be tantamount to a de facto annexation”.46 Non-recognition echoes similar legal devices existing in the private law tradition. Strictly speaking, it is not a countermeasure, which specifically consists in the violation of international obligations owed to the wrongdoer State.47 It targets the situation per se more than the responsible State, which could, of course, also be targeted by genuine countermeasures at the same time. Cessation of the wrongful occupation is rather achieved by collectively and persistently opposing the legality of a forcible territorial annexation. During this united social response, the final status of the territory remains provisional and uncertain until a legally consistent solution is finally agreed. This process may culminate in the straightforward restitution of the occupied territories, or the conclusion of an ad hoc treaty regulating all pending questions between the parties.
The role of UN organs has proved fundamental to ensure that one of these results is finally reached. Throughout the past few decades, the General Assembly and the Security Council have constantly stressed the illegality of forcible annexation and reiterated the obligation of foreign States to withdraw from the occupied territory. On the other hand, several resolutions by the main UN organs expressing the opinio juris of the international community have reinforced the customary law nature of the obligation of non-recognition. Some of these resolutions address the generality of States and are thus drafted in an abstract manner; others concern the occupation of specific territories and demand the intervening power to cease the violation by withdrawing from the territory in question.
Among the acts belonging to the first category, we may include the still relevant Friendly Relations Declarations adopted by the General Assembly on 24 October 1970.48 The principle dealing with the prohibition of the use of force makes clear that “[n]o territorial acquisition resulting from the threat or use of force shall be recognized as legal”.49 In relation to the principle of self-determination of peoples, the Declaration proclaims that, albeit forciblly occupied by a foreign Power, “[t]he territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination”.50
As regards the liberation of a specific territory from foreign domination, there is a long and consistent list of UN resolutions condemning such a domination, asking for withdrawal, and recommending or imposing on all States the obligation not to recognise any territorial acquisition by force. This list includes, for example, the proclamation of the Turkish Republic of Northern Cyprus created in the North-eastern part of the island following a military invasion by the Turkish army in 1974;51 the annexation of Kuwait by Iraq which was declared null and void by Security Council Resolution 622 of 9 August 1990;52 the condemnation by the Security Council of the declaration of independence made by a racist minority in Rhodesia in 1965;53 the longstanding dispute between the UN and South Africa over the illegal occupation of Namibia54 and, more recently, the General Assembly’s call not to recognize any alteration of the status of Crimea following the invasion of the Ukrainian peninsula by the Russian Federation in 2014.55
What kind of measures are mostly adopted to avoid that passage of time might remedy the illegality of a territorial occupation by the use force? These measures may include, for example, refusal to establish diplomatic or consular relations with the State born from an illegally occupied territory.56 In the 1971 Advisory Opinion on Namibia, the icj mentioned the obligation by all States to “abstain from entering into economic or other form of relations with South Africa in all cases in which the Government of South Africa purports to act on behalf of or concerning Namibia”.57 In this case, the Court announced the existence of a customary international rule, seemingly as a corollary of the already in force, but more generic, obligation of non-recognition.58 This rule has since been observed in relation to similar cases involving territories occupied by force or in violation of the right to self-determination. More recently, international law practice has found new ways to prevent de facto occupation from becoming permanent. Instead of reiterating individually and collectively the illegality of violent annexations, States directly entertain relations with the entities aspiring to independence. Thus, the political representatives of these entities negotiate and conclude economic agreements with foreign States and are sometimes allowed to open so-called embassies to interact with the accrediting State on a permanent basis. The opposite situation has also occurred, namely the opening of consular offices on annexed territories to entertain international relations directly with occupied local population.59
5 The Impact of the Duty of Non-Recognition on the International Status of Jerusalem
Let us consider now how this regime of international non-recognition developed in relation to the status of Jerusalem. It was already seen that the international community has generally rejected Israel’s post-1967 annexation of East Jerusalem. This finds ample confirmation in the practice of the UN. In particular, both the General Assembly and the Security Council have adopted important (although non-binding) resolutions to the effect that the duty of non-recognition should also apply vis-à-vis East Jerusalem.60
Besides the older resolutions mentioned supra in Section 3, in more recent years we may quote some interesting resolutions restating the same idea of invalidity and non-recognition of Israeli measures aimed to annex East Jerusalem. In Resolution 2334(2016) of 23 December 2016, for example, the Security Council underlines “that it will not recognise any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than agreed by the parties through negotiations”.61 General Assembly Resolution 73/19 of 5 December 2018 supports a similar position. At the same time, it also suggested Member States a way to comply with the obligation of non-recognition, namely by not rendering aid and assistance to illegal settlement activities, “including not to provide Israel with any assistance to be used specifically in connection with settlements in the occupied territories”.62 The conclusions agreed upon by the UN political organs match with similar ideas expressed by the International Court of Justice in the 2004 Palestinian Wall Advisory Opinion. The Court stated that “all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction”.63
Does this mean that, according to international law, Jerusalem is not and should not be the capital of Israel? We believe that to say so would draw too much from the above premises and, in particular, would derive unintended consequences from the duty of non-recognition.
“as regards West Jerusalem, all foreign ambassadors, including those of Egypt and Jordan, have presented their credentials to the President in (West) Jerusalem. All of Israel’s treaties have been signed in (West) Jerusalem and all State visits, including the presidents of the United States, Russia, Egypt and China have made State visits to (West) Jerusalem. […] For the last sixty years, the UN General Assembly has not made any negative reference to Israeli sovereignty over West Jerusalem and has effectively abandoned its 1947 call for internationalizing Jerusalem”.70
In sum, it is safe to say that Israeli sovereignty over West Jerusalem is now undisputed, as is its status as the capital of Israel.71
It is clear from the above that the reason why the the Basic Law of 30 July 1980 has been strongly condemned by UN organs lies not its declaration of Jerusalem to be Israel’s capital per se, but rather in the fact that it declared Jerusalem the “complete and united” capital of Israel, therefore including East Jerusalem. Similar considerations apply to the recent decision by US President Donald Trump to relocate the US embassy to Israel from Tel Aviv to Jerusalem and to officially recognize Jerusalem as the capital of Israel. The reason why this decision was met with generalised condemnation from the international community is that it could amount to an implicit recognition of Israeli sovereignty over East Jerusalem. As a matter of fact, the US Proclamation’s content was ambiguously worded, recognition not being expressly limited to West Jerusalem. Moreover, it has been noted that the premises of the US embassy are (partly) located in the former no-man’s land between West and East Jerusalem, which is itself believed to constitute occupied territory.72
6 Conclusions
This paper has shown that several elements justify the definition by the Rome’s Tribunal of Jerusalem being a “disputed” capital of Israel. This definition matches well with the actual complexity of that city’s international legal regime. The sheer negative assertion that Jerusalem is not the capital of Israel sounds as a too clear-cut and peremptory representation of the existing reality, and neglects the fact that West Jerusalem is widely recognized (either expressly or impliedly) as being under legitimate Israeli sovereignty and the capital of Israel.73 It is, by contrast, the status of East Jerusalem that is heavily disputed within the international community. It is only to East Jerusalem, qua occupied territory, that the customary duty of non-recognition applies.
In conclusion, we should note that the obligation of non-recognition might not be sufficient to secure liberation of territories illegally detained by a foreign power. This happens when questions of forcible occupation are tightly intermingled with issues of boundary delimitation, previous international conflicts in the area, longstanding military occupation or the assertion of historic titles. A complex legal framework is usually required to settle such intricate disputes. To mark the general interest of the international community in these cases, negotiations between the occupying power and representatives of the local population are mostly held under the auspices of the UN or regional organisations. Third States also regularly intervene to guarantee that the resulting adjustment is correctly applied. Return to legality is thus obtained thanks to a combination of social pression and institutional decisions. Therefore, a peaceful solution of the Israeli-Palestinian conflict should be reached through bilateral negotiations on individual controversial points and by encouraging specific diplomatic initiatives to provide legal and political frameworks to that end. This has been clearly and repeatedly restated in the practice of the UN: “The United Nations maintains the view that Jerusalem is a final-status issue that must be resolved through direct negotiations between the two parties on the basis of the relevant Security Council and General Assembly resolutions, taking into account the legitimate concerns of both the Palestinian and the Israeli sides”.74
An important aspect of any future solution concerning the status of the Holy City is that of ensuring access to the holy sites. This idea was at the center of the initial plan concerning Jerusalem’s special status as corpus separatum,75 but the objective of preserving the Holy City’s spiritual dimension still lingers on. In some UN resolutions on the Middle East conflict, reference is often made to the “need to protect and preserve the unique spiritual and religious dimension of the Holy Places in the City”.76 The protection of this dimension appears to fulfil the general “interest of the international community” in the future status of Jerusalem as recommended by some UN resolutions.77 In Resolution 465 (1980) of 1 March 1980 mention is also made “to the need, for any governing authority, to protect and preserve the unique spiritual and religious dimension of the Holy Places in the City”. This clause, reminiscent of the originally international regime proposed by the UN Assembly in 1948, is a territorial clause to be included whichever status of Jerusalem is finally attained. This inclusion is in line with the expectations of the international community as a whole. It is also consistent with Article 2 of Israel’s 1980 Basic Law, which pledges: “[t]he Holy Places shall be protected from desecration and any other violation and from anything likely to violate the freedom of access of the members of the different religions to the places sacred to them or their feelings towards those places”. Article 2 is a constitutional obligation on Israeli organs to respect freedom of religion in the Holy City in accordance with previous historical practice.
Tribunale di Roma (Sezione diritti della persona e immigrazione), 5 August 2020, Order No. 31253.
Tribunale di Roma (Sez. xviii Civile), 25 September 2020, Order No. 40043. The content of the two Orders is described in detail infra, Section 2.
The quiz show is ironically called “The Heritage” (“L’eredità”), a very pertinent title in the light of Jerusalem’s legacy for the three main monotheistic religions.
In the original Italian: “il diritto internazionale non riconosce Gerusalemme quale capitale dello Stato di Israele”, see supra note 1, operative part of the Judgment.
European Convention on Human Rights (“echr”), 4 November 1950, entered into force 3 September 1953, Art. 10: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.
UN General Assembly Resolution, Status of Jerusalem, UN Doc. a/res/es-10/19. For a more thorough review of relevant UN resolutions see infra, Sections 3 and 5.
See the Chapter “Gerusalemme capitale d’Israele e l’ONU” in sacerdoti, Diritto ed Ebraismo. Italia, Europa, Israele. Sessant’anni di interventi e battaglie civili, Bologna, 2021, pp. 554–555.
Britain’s role as mandatory power received the approval of the League of Nations in 1922, in League of Nations (1922), “Mandate for Palestine”, United Nations Information System on the Question of Palestine (“unispal”), available at: <http://unispal.un.org/UNISPAL.NSF/0/2FCA2C68106F11AB05256BCF007BF3CB>.
UN General Assembly, Resolution Adopted on the Report of the ad hoc Committee on the Palestinian Question, UN Doc. a/res/181(ii) (1947).
The Gaza Strip, for its part, ended up under Egyptian control. For a more detailed assessment of these historical events see also iovane, “Droit international et frontières dans le cas israélien”, Federalismi.it, 2019, p. 1 ff., available at: <https://www.federalismi.it/nv14/articolo-documento.cfm?Artid=38960>.
Egypt-Israel General Armistice Agreement, 24 February 1949, entered into force 24 February 1949; Lebanese-Israeli General Armistice Agreement, 23 March 1949, entered into force 23 March 1949; Hashemite Jordan Kingdom-Israel General Armistice Agreement, 3 April 1949, entered into force 3 april 1949; Israeli-Syrian General Armistice Agreement, 20 July 1949, entered into force 20 July 1949.
See the statements by Israeli Prime Minister (Ben Gurion), “Proclamation of Jerusalem as Capital of Israel”, 5 and 13 December 1949, available at: <https://ecf.org.il/issues/issue/1369>. It is worth noting that a few government offices, including e.g. the Ministry of Defence, remain to this day in Tel Aviv.
Knesset (Israeli Parliament), “Relocation of the Government of Israel and the Knesset to Jerusalem”, 13 December 1949, available at: <https://ecf.org.il/issues/issue/87>.
Knesset (Israeli Parliament), “Basic Law: Jerusalem, Capital of Israel”, 30 July 1980, Art. 1, available at: <https://ecf.org.il/media_items/462>.
Security Council Resolution on a Peaceful and Accepted Settlement of the Middle East Situation, UN Doc. s/res/242 (1967), para. 1, available at: <https://digitallibrary.un.org/record/90717>. The second principle is set out without expressly mentioning Israel as having been the attacked State and bearing in mind that most territorial delimitations around Israel were still unsettled at that time. In passing, neither the General Assembly nor the sc has ever condemned the armed attacks launched by Arab coalitions in 1949, 1967 and 1973 with a clear destructive intent towards the Jewish State.
Security Council Resolution on the Status of Jerusalem, UN Doc. s/res/252 (1968), para. 2, available at: <https://digitallibrary.un.org/record/90754>.
For example: Security Council Resolution on the Status of Jerusalem, UN Doc. s/res/267 (1969); Security Council Resolution on the Status of Jerusalem, UN Doc. s/res/298 (1971), para. 3, which states that: “all legislative and administrative actions taken by Israel to change the status of the City of Jerusalem, included expropriation of land and properties, transfer of populations and legislation aimed at the incorporation of the occupied section are totally invalid and cannot change that status”; Security Council Resolution on Establishment of a Commission to Examine the Situation Relating to Settlements in the Arab Territories Occupied by Israel, UN Doc. s/res/446 (1979); Security Council Resolution on Israeli Settlement Policies in the Occupied Territories, UN Doc. s/res/465 (1980) and Security Council Resolution on the Status of Jerusalem, UN Doc. s/res/476 (1980).
Security Council Resolution on the Status of Jerusalem, UN Doc. s/res/478 (1980), para. 2, available at: <https://digitallibrary.un.org/record/25618>.
Ibid., para. 5(b).
green, “Trump, take note: How Jerusalem went from Hosting 16 Embassies to Zero”, Haaretz, 6 December 2017, updated ahead of the opening of the new U.S. Embassy in Jerusalem on 14 May 2018, available at: <https://www.haaretz.com/israel-news/.premium-trump-take-note-how-jerusalem-went-from-hosting-16-embassies-to-zero-1.5627682>.
US President (Donald Trump), “Statement on Jerusalem”, 6 December 2017, available at: <https://it.usembassy.gov/statement-president-trump-jerusalem-december-6-2017/>. On the US embassy’s relocation see, among many others: arcari, “La decisione statunitense di trasferimento dell’ambasciata a Gerusalemme e la portata dell’obbligo di non-riconoscimento in diritto internazionale”, Rivista di diritto internazionale, 2018, p. 547 ff.; id., “The Relocation of the US Embassy to Jerusalem and the Obligation of Non-recognition in International Law”, Questions of International Law, 2018, p. 1 ff.
For a summary of international reactions see pertile and faccio, “When We Talk About Jerusalem: The Duty of Non-recognition and the Prospects for Peace After the US Embassy’s Relocation to the Holy City”, Leiden Journal of International Law, 2020, p. 621 ff.
See supra Resolution cited at note 6, para. 1.
Text of the draft Resolution: UN Doc. S/2017/1060 (2017); summary records: UN Doc. s/spv.8139 (2017).
It should be acknowledged that this recognition was only implicit and made in a very peculiar context. Former Serbian President (Aleksandar Vučić) agreed to move the Serbian embassy to Jerusalem in a political agreement with the Prime Minister of Kosovo (Avdullah Hoti), signed at the White House and sponsored by US President Donald Trump. See “Serbia Agrees to move its Embassy to Jerusalem; Kosovo Agrees to Recognize Israel”, thinc. Israel and International Law, 4 September 2020, available at: <https://www.thinc.info/serbia-agrees-to-move-its-embassy-to-jerusalem-kosovo-agrees-to-recognize-israel/>.
Honduran President Juan Orlando Hernández inaugurated a Honduran Embassy in Jerusalem on 24 June 2021, after having declared, in 2019, that this implied “the recognition that Jerusalem is the Capital of Israel”: see “Inauguration de l’Ambassade du Honduras à Jerusalem”, aa, 24 June 2021, available at: <https://www.aa.com.tr/fr/politique/inauguration-de-lambassade-du-honduras-%C3%A0-j%C3%A9rusalem-/2284161>.
“Guatemala opens Embassy in Jerusalem, two days after U.S. move”, Reuters, 16 May 2018, available at: <https://www.reuters.com/article/us-israel-palestinians-guatemala-idUSKCN1IH0Q7>.
“Nauru, Honduras recognize Jerusalem as Israel’s capital”, The Jerusalem Post, 30 August 2019, available at: <https://www.jpost.com/breaking-news/israel-republic-of-nauru-recognizes-jerusalem-as-israels-capital-600071>.
See supra note 4.
crawford, State Responsibility: The General Part, Oxford, 2013, pp. 387–388; harris, “Human Rights, Israel, and the Political Realities of Occupation”, Israel Law Review, 2012, p. 145 ff.; fornari, “I cinquant’anni della Guerra dei sei giorni: alcune questioni (irrisolte) poste dalla Risoluzione 242”, La Comunità Internazionale, 2018, p. 185 ff., pp. 191–192. See e.g. the debates preceding the adoption of Resolution 242, where many delegations expressly stressed that the Council was acting under Chapter vi: Security Council Official Records, 1382nd Meeting: 22 November 1967, paras. 124 and 160.
See reisman and michael, “The Constitutional Crisis in the United Nations”, American Journal of International Law, 1993, p. 93 ff. and conforti and focarelli, Le Nazioni Unite, 12th ed., Padova, 2020, p. 216.
See conforti and focarelli, cit. supra note 31, pp. 498–503; conforti and iovane, Diritto Internazionale, 12th ed., Napoli, 2021, pp. 192–193 and cannizzaro, Diritto Internazionale, 5th ed., Torino, 2020, pp. 213–216.
See supra note 2.
conforti and iovane, cit. supra note 32, pp. 366–374; cannizzaro, cit. supra note 32, pp. 491–501 and, ex multis, see Corte Costituzionale, 22 December 1961, No. 67, para. 1 and Corte Costituzionale, 15 May 2001, No. 131, para. 3.
Ex multis, see orakhelashvili, Peremptory norms in International Law, Oxford, 2008 and tladi (ed.), Peremptory Norms of General International Law (Jus Cogens), Leiden, 2021.
For a more thorough discussion see iovane, La tutela dei valori fondamentali nel diritto internazionale, Napoli, 2000 and, more recently, see also iovane and rossi, “International Fundamental Values and Obligations Erga Omnes”, in iovane et al. (eds.), The Protection of General Interests in Contemporary International Law, Oxford, 2021, p. 46 ff.
An expression first used by the International Court of Justice in Barcelona Traction, Light and Power Company Ltd (Belgium v. Spain), Judgment of 15 February 1970, icj Reports, 1970, p. 3 ff., para. 33.
International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, UN Doc. A/56/10, YILC, 2001, Vol. II, Part Two, p. 31 ff., p. 112, Commentary to Art. 40, para. 3.
See again Barcelona Traction case, cit. supra note 37, para. 33.
Art. 48 arsiwa.
See on this point talmon, “The Duty Not to ‘Recognize as Lawful’ a Situation Created by the Illegal Use of Force or Other Serious Breaches of a Jus Cogens Obligation: An Obligation without Real Substance?”, in tomuschat and thouvenin (eds.), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes, Leiden, 2006, p. 99 ff.
christakis, “L’obligation de non-reconnaissance des situations créées par le recours illicite à la force ou d’autres actes enfreignant des règles fondamentales”, in tomuschat and thouvenin (eds.), cit. supra note 41, p. 127 ff.
cassese, Self-Determination of Peoples: A Legal Reappraisal, Cambridge, 1995, especially p. 194 ff.
mancini, Statualità e non riconoscimento nel diritto internazionale, Torino, 2020, p. 120, with an accurate and updated examination of the relevant practice. See also espinosa, “The Principle of Non-Recognition of States Arising from Serious Breaches of Peremptory Norms of International Law”, Chinese Journal of International Law, 2022, p. 79 ff.
lauterpacht, Recognition in International Law, Cambridge, 1947, p. 430, noting the “natural tendency [of the international community] to regard successful breaches of the law as a source of legal right”.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, icj Reports, 2004, p. 136 ff., para. 121. See also Separate Opinion of Judge Koroma, icj Reports, 2004, p. 204 ff., para. 7: “Equally important is the finding that the international community as a whole bears an obligation […] not to recognize any unilateral change in the status of the territory brought about by the construction of the wall”.
Arts. 22 and 49–53 arsiwa.
Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UN Doc. a/res/2625 (1970).
Ibid., p. 123.
Ibid., p. 124.
Security Council Resolution on Declaration by the Turkish Cypriot Community of its Secession from Cyprus, UN Doc. s/res/541 (1983).
Security Council Resolution on Iraqi Annexation of Kuwait, UN Doc., s/res/622 (1990).
Security Council Resolution Calling on all States not to Recognize the Minority Regime in Southern Rhodesia, UN Doc. s/res/216 (1965).
Ex multis, see Security Council Resolution on the Situation in Namibia, UN Doc. s/res/264 (1969) and Security Council Resolution on Establishment of an Ad Hoc Subcommittee of the Council to Study Ways to Implement Council Resolutions Regarding Namibia, UN Doc. s/res/276 (1970).
Security Council Resolution on Territorial Integrity of Ukraine, UN Doc. a/res/68/262 (2014).
Marina Mancini devoted an entire chapter of her monograph to that question: see mancini, cit. supra note 44, pp. 135–191.
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, icj Reports, 1971, p. 14 ff., para. 122.
Ibid., paras. 123–124.
An example of both situations is provided by the diplomatic relations of the Sahrawi Arab Democratic Republic. This entity, aspiring to the liberation of Western Sahara from Moroccan military occupation, has opened so-called embassies in several countries and also hosts foreign consular offices and diplomatic missions on its territory. Moreover, it is member or observer of important international organisations (e.g., the African Union). For a more thorough study on Western Sahara, see karin et al. (eds.), International Law and the Question of Western Sahara, Leiden, 2008.
For a general overview of the treatment of the issue of Jerusalem by UN organs see sacerdoti, cit. supra note 7.
Security Council Resolution on Cessation of Israeli Settlement Activities in the Occupied Palestinian Territory, Including East Jerusalem, UN Doc. s/res/2334 (2016), para. 3.
UN General Assembly Resolution, Peaceful Settlement of the question of Palestine, UN Doc. a/res/73/19, para. 24 (c).
Palestinian Wall case, cit. supra note 46, para. 159.
sacerdoti, cit. supra note 7.
hughes, “The US embassy in Jerusalem: Does location matter?”, Questions of International Law, 2018, p. 15 ff., p. 18.
green, cit. supra note 20.
Australian Prime Minister (Scott Morrison), “Australia recognises West Jerusalem as the capital of Israel”, 15 December 2018, available at: <https://www.cbsnews.com/news/australia-recognizes-west-jerusalem-as-the-capital-of-israel/>.
Russian Ministry of Foreign Affairs (Sergey Lavrov), “Statement regarding Palestinian-Israeli Settlement”, 6 April 2017, available at: <https://www.jewishvirtuallibrary.org/russian-foreign-ministry-statement-regarding-palestinian-israeli-settlement>. Russia has restated support for the two-State solution, declaring that East Jerusalem should serve as the capital of a future Palestinian State.
“Czech Republic recognizes pre-1967 Jerusalem as capital of Israel”, Times of Israel, 7 December 2017, available at: <https://www.timesofisrael.com/czech-republic-recognizes-pre-1967-jerusalem-as-capital-of-israel/>.
sabel, International Law and the Arab-Israeli Conflict, Cambridge, 2022, p. 366.
See lauterpacht, Jerusalem and the Holy-Places, London, 1968, p. 36, noting that “the U.N. by its unconcern with the idea of territorial internationalization, as demonstrated from 1952 to the present date [1968], effectively acquiesced in the demise of the concept”; schwebel, “What Weight to Conquest?”, American Journal of International Law, 1970, pp. 344–347; blum and yehuda, The Juridical Status of Jerusalem, Jerusalem, 1974. Contra, see cassese, “Legal Consideration on the International Status of Jerusalem”, in Cassese et al. (eds.), The Human Dimension of International Law: Selected Papers of Antonio Cassese, p. 279 ff.
hughes, cit. supra note 65, p. 24.
As rightly pointed out by sacerdoti, cit. supra, note 7, p. 563, the “United Nations do not contest (neither could they do) the choice by Israel as a sovereign state […] to appoint the Western part of Jerusalem […] as its capital”. From a broader viewpoint, the author recalls that, according to international law, “each State is free to establish its capital within its territory wherever it seems appropriate to it. The are no international rules imposing which city has to be appointed as a State’s capital city. Such rules would run contrary to the international principle of domestic jurisdiction (domaine réservé)”: ibid., pp. 554–555.
Special Coordinator Mladenov, Report on Security Council Resolution 2334 (The Situation in Middle East, Including the Palestinian Question, verbatim record), UN Doc. s/pv.8138 (2017), p. 4, available at: <https://www.un.org/unispal/document/special-coordinator-mladenov-briefs-security-council-report-on-security-council-resolution-2334-verbatim-record/>.
Resolution Adopted on the Report of the ad hoc Committee on the Palestinian Question, U.N. Doc. a/res/181(ii) (1947), Part. iii, recently mentioned by Mr. Inchauste Jordán (Representative of the Plurinational State of Bolivia), Report on Security Council Resolution 2334 (The Situation in Middle East, Including the Palestinian Question, Verbatim record), UN Doc. s/pv.8138 (2017), p. 8.
Security Council Resolution on Israeli Settlement Policies in the Occupied Territories, UN Doc. s/res/465 (1980); Status of Jerusalem, UN Doc. a/res/es-10/19 (2017).
Security Council Resolution on the Status of Jerusalem, UN Doc. s/res/298 (1971).