In common with other Australians living in Israel, I was quite shocked by the decision of Prime Minister Anthony Albanese to cancel Australia’s recognition of any part of Jerusalem as the heart of Israel and its capital. I was shocked because of the callous manner in which this was handled. Derecognition is a very serious matter in diplomatic relations and is dealt with very delicately. In this case, the matter was handled in quite the opposite manner.
More serious is the substance of the prime minister’s act, which cannot but affect relations between Canberra and Jerusalem. Relations between the two countries had been most cordial ever since Dr. Herbert Evatt, Australia’s foreign minister, had promoted the United Nations partition plan in 1947-48. To believe that Prime Minister Anthony Albanese’s action was simply Labour’s revenge on Scott Morrison, the former Australian prime minister, for proclaiming Australian recognition of western Jerusalem as the capital of Israel, is to believe that the impact on Israel of derecognition was irrelevant, and makes the insult even more glaring.
Consequently, one must assume that there was some strong ideological group in the Labour party calling for the cancellation of any recognition of Israel in Jerusalem. But this group is not the Catholic Church, which has considerable influence in the Labour party. Already in 1998, I wrote an article demonstrating that the Vatican had reconciled itself to the reality of Jewish authority in Jerusalem. Thus, the element prompting a total disconnection from Israel in Jerusalem must be sought elsewhere.
The account of Australia’s Foreign Minister Penny Wong seemed to indicate that Australia was also intent on telling off former president Donald Trump for his recognition of Jerusalem as Israel’s capital. But, of course, if such was their intent, then they were completely oblivious to the fact that Trump, in taking this step, was only fulfilling the wish of the United States Congress, which had endorsed by an overwhelming majority the unity of Jerusalem.
Unlike Albanese, who never received any public endorsement of his move, Trump, in recognizing Jerusalem as the capital of Israel was simply complying with a law. Yes, a law that the US Congress, in both the Senate (93 v.5) and the House of Representatives (374 v.37), had adopted.
'Jerusalem should be recognized as the capital of Israel,' Statement of the policy of US
The Jerusalem Embassy Act of 1995 contains the following: Statement of the policy of the United States: Jerusalem should remain an undivided city... [and] recognized as the capital of Israel... [and] the US Embassy in Israel should be established in Jerusalem.”
Clearly enough, Albanese was quite unaware that in reversing Australian policy they were acting in stark opposition to the president and Congress. No doubt, members of Congress will want to understand what imperative consideration led Australia’s prime minister to demonstratively flaunt American consideration in this matter. In short, they will want to know why the prime minister chose to publicly challenge a policy that the Congress, including then-senator Joseph Biden, overwhelmingly adopted in 1995.
The central issue in all this debate is the relevant status of international law. Those charging Israel with acting illegally in proclaiming Jerusalem as its capital, even for the western sector alone up to 1967 and for all of Jerusalem thereafter, assert that Israel violated international law. The second issue is the charge against the US that its act of recognition violated international law. Both charges, upon examination, will be seen to be totally unsupportable.
Where did this so-called international law come from? The expression of a violation of international law supposedly arises from the resolutions of the General Assembly of the United Nations, starting in 1967. But the General Assembly does not possess legislative powers and it cannot create international law. By the same token, there is nothing in General Assembly resolutions that can prevent a sovereign state from extending recognition to an entity that it wishes to recognize. The records of British Foreign Office experts in international law completely deny any substantive power to General Assembly resolutions. They are mere aspirations and obligate no one.
The fact that General Assembly resolutions are nothing more than recommendations and lack any compulsive authority, was confirmed in the Security Council debate held in the aftermath of the Trump announcement. The US vetoed the Egyptian draft resolution condemning the American act of recognition.
But most members of the Security Council expressed the view that the US had violated international law. Three powers refrained from mentioning anything about international law namely, Russia, China and the UK. Given the fact that the only source for international law, in this case, was the General Assembly, they were not inclined to accord any respect to this fictional source. The stand of the powers vitiates the attempt to use the United Nations as a governing body.
But it should be noted that scholars in international law had long ago established that the UN, even by means of the Security Council, lacks any legislative power to create international law. This was confirmed in an opinion by the prominent British judge in the International Court of Justice, Sir Gerald Fitzmaurice, who wrote that the Security Council is not competent, even for genuine peace-keeping purposes, to effect definitive changes in territorial sovereignty or administrative rights. It was to keep the peace, not to change the world order, that the Security Council was set up.
Israel maintains that its policy on Jerusalem fully conforms with international law. Those who seek to modify the status quo are guilty of working for the redivision of Jerusalem, which is a violation of international law since it represents an attempt to deny Jews the right to return to their homes of generations and to worship at their Holy Sites in the east of the city.
Israel argues that the foremost authorities in international law sustain its claim that Israel alone is entitled to administer a united metropolis. Most prominent amongst them is Stephen Schwebel, an American judge and later a president at the International Court of Justice.
The city had been unlawfully divided and now, Israel’s title was the only extant title. Without going into a long discussion of the relevant international law, Israel posits that Jerusalem, in contrast to the 19 years of Jordanian rule, must remain united and accessible to the respective Holy Sites of the adherents of each faith.
Anyone who thinks that Israel will suffer again the deprivation of a united city is dreaming. Moshe Dayan, upon Israel’s gaining control of the Western Wall in 1967, declared: We have reunited the torn city, the capital of Israel. We have returned to this most sacred shrine, never to part from it again.
Albanese, in canceling his country’s recognition of western Jerusalem thinks that he was acting in accordance with international law and promoting a peaceful settlement. It is the reverse. His pronouncement was offensive. Instead of praising Israel for opening the city up to all visitors, his announcement, regrettably, is directed to undermining the unity of Jerusalem and to restoring barriers and restrictions.
In sum, there is no international law that restricts Israel from asserting that the unified city of Jerusalem is its capital or for another state to accord recognition to that capital. Albanese’s pronouncement was an unfortunate intervention in a matter that is best left to quiet diplomacy and negotiations. In supporting the redivision of a united city, it inspired aggression, not peace.
The writer is the author of Jerusalem in American Foreign Policy.