THE INTERNATIONAL AND CONSTITUTIONAL LEGAL DEBATES -4
On 6th December 2017, the Office of the Press Secretary, White House issued the text of the speech of the US President Trump, in which he said:
“[W]e finally acknowledge the obvious: that Jerusalem is Israel’s capital. This is nothing more, or less, than a recognition of reality. It is also the right thing to do. It’s something that has to be done.”
Building his stance on legal reasoning by referring to a US law, the Jerusalem Embassy Act, 1995, he declared the recognition of Jerusalem as the capital of Israel. Besides challenging the established international legal order, the announcement has reversed 70 years of bipartisan foreign policy of the US. No doubt, it was imminently agitated at the United Nations Security Council, where on 8th December 2017, Nikki Haley, US Ambassador to the United Nations, tried to confound the policy by stating that ‘the United States had not taken a position on boundaries or borders, which would still be decided by Israel and the Palestinians’. There is good reason to understand the legalese of the matter as the problem is as legal as political and is likely to affect foreign policies of many countries, including Pakistan.
Jerusalem: A Historical Outline
Henry Cattan (1906-1992), a noted Palestinian jurist, provided a very useful outline of Jerusalem, which is conceptual as well as comprehensive. He stated:
“Founded by the Canaanites around 1800 BC, captured by David eight centuries later, destroyed by the Babylonians in 587 BC, Jerusalem was then successively occupied by the Persians, the Greeks, the Romans (both pagan and Christian), the Arabs and the Turks. It is unique among the cities of the world because of its association with the three monotheistic religions, which have their Holy Places within its precincts. As a result, it is of profound religious and spiritual significance to a billion Christians, seven hundred million Muslims and fourteen million Jews. All three ruled the city at one time or another: the Jews for almost five centuries in biblical times, the Christians for over four hundred years in the fourth to the seventh and the twelfth centuries, and the Muslims (Arabs and Turks) for twelve centuries from 638 until 1917 continuously, with the exception of the period when the city was the capital of the Latin Kingdom of Jerusalem.”
The historical outline, for the purpose of the International Law, shows that:
1. The Muslims populated the city from 638AD to 1917AD;
2. The city is historically important and religiously unique due to holy places that attract Christians, Muslims and Jews alike. The uniqueness of the city was preserved through different legal mechanisms.
The intertwined nature of the issue of Jerusalem with the Arabs-Israel conflict requires a nuanced analysis. The following is the array of issues:
1. The State of Palestine
In the era of modern nation states, the starting point about the creation of the state of Palestine is the end of Turkish/Ottoman Empire. Legally, it has its origins in Article 22 of the Covenant of the League of Nations (hereinafter the Covenant) that read:
“Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration to the selection of the Mandatory.”
Resultantly, five new states namely Iraq, Syria, Lebanon, Palestine and Transjordan, came into being. From the viewpoint of the international law, the state of Palestine is a product of history and customary international law and only its provisional recognition was captured through Article 22 of the Covenant, which quintessentially was an international legal treaty. At that time, there was no separate question of Jerusalem before the international community. The later international law developments included the criteria of statehood comprising defined territory, permanent population, government and capacity to conduct international relations as provided by the Montevideo Convention on the Rights and Duties of the States, 1933; Palestine met the criteria of international law.
2. The Three Legal Entities
Israel, in the era of modern nation states, owed its origins to the Balfour Declaration of 1917, which was no more than a public statement favouring establishment of a ‘national home’ for the Jewish people in Palestine. From an international law perspective, the Declaration by the Britain had no legal value; no rights could be created on the basis of the Declaration. Later, Britain was entrusted the role of a Mandatory Power under Article 22 of the Covenant, which, in fact, again did not empower the Mandatory Power to confer rights to create a state within an established state of Palestine.
In the realm of international law, the questions of creation of the state of Israel and internationalization of the city of Jerusalem emerged after the Second World War. After the WWII, the United Nations Organization was established in 1945 and it succeeded the obligations of the League of Nations. One of the succeeded obligations was with respect to the continuation of mandates, in which, inter alia, the question of Britain’s Mandatory Power in relation to Palestine also came before the United Nations.
The legal story begins hereafter insomuch as a special session of the United Nations General Assembly (UNGA) was requested by the Britain, on the nudging of the United States to facilitate the immigration of Jews to Palestine. A point worth noting is that the special session was held on 28th April 1947, and it authorized the constitution of United Nations Special Committee on Palestine (UNSCOP). The UNSCOP prepared a Report, wherein a Plan of Partition with Economic Union (POP) was proposed. The POP was later endorsed and annexed with the UNGA’s Resolution 18l. The POP was clearly not a legally-binding treaty; though its endorsement by the UNGA provided it with some degree of legality. The relevant salient features of the POP, for our discussion, are:
i. It ended the mandate of the Britain on Palestine;
ii. It provided for independence of three legal entities: (a) The Arab State; (b) The Jewish State; and (c) The Special International Regime for the City of Jerusalem.
The indication of the Special International Regime for the City of Jerusalem in Para 3 of the Part I (A) of the POP as annexed to UNGA Resolution 181 clearly shows that Jerusalem did get different treatment. The different and unique treatment was further qualified by declaring Jerusalem as corpus separatum in the same document. The scholars on the subject style the development as the internationalization of Jerusalem. Thereafter, in 1948, parts of Jerusalem were occupied by Jordan and Israel, but the special and unique internationalization of Jerusalem was kept intact through UNGA Resolutions 194 and 303.
3. Occupation by Israel
The Six-Day War, also known as the Arab–Israeli War, of 1967 altered the legal landscape of the Arab-Israel conflict. The whole territory occupied by Israel was treated by international lawyers as occupied territory in war. They, thus, applied the Fourth Geneva Convention applicable to the Protection of Civilian Persons in Time of War, 1949, to Israel and specifically relied on Article 49(6) of the Convention that states:
“The occupying power shall not deport or transfer parts of its own civilian population into the territory it occupies.”
The addition of application of international humanitarian law regime to the UN-sanctioned three legal entities Plan of Partition, however, did not change the legal status of Jerusalem, which was guarded by the international community carefully. The latest testament to this careful diplomatic and balanced approach of the international community was the UNSC Resolution 2234 of 2016 which reaffirmed as many as 10 UNSC Resolutions since 1967 – UNSC Resolutions 242(1967), 338 (1973), 446 (1979), 452 (1979), 465 (1980), 476 (1980), 478 (1980), 1397 (2002), 1515 (2003), and 1850 (2008) – and, inter alia, stated that the UNSC:
a. reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation of international law and a major obstacle to the achievement of the Two-State solution and a just, lasting and comprehensive peace;
b. underlines that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed to by the parties through negotiations.
Jerusalem, therefore, warranted separate treatment and the international law on the point based on the international consent channelled through the UN system could not be arbitrarily set aside; more so because the US had consented to its development.
4. The Municipal Law versus the International Law
The municipal law of the United States is at best ambiguous on the issue of powers to make foreign policy; within the four corners of the US Constitution, the primacy of the office of the President in foreign policy making against the role of the Congress has been subject of a continuous debate. More often than not, ambivalence occupies this debate. In this context, the invocation of the Jerusalem Embassy Act, 1995, to justify abandonment of the international law does not hold any substance. Notwithstanding this opaqueness in the US legal system, the question is: ‘can a state invoke its municipal law to abrogate its international legal obligations emanating out of its consent proffered at international fora? Academically, the UNGA and UNSC resolutions where plenipotentiaries of the US gave their express consent be treated as having legal value at par with an international legal instrument of the nature of an international treaty; if that be the case, Article 27 of the Vienna Convention on the Law of Treaties, 1969, provides that the internal law cannot be invoked to justify failure to perform a treaty.
The stance of the United States has put the international legal order at peril; the idealism of the yesteryears is giving way to realpolitik, which is both immoral and amoral. The net and imminent results of the actions of the US are likely to roll back all that was achieved legally by Israel as the determining factor will be force, not the law. Unfortunately, the language of extremism is force, not the law; therefore, the only conclusion is that extremism begets extremism.