Why won’t the world recognize West Jerusalem as Israel’s capital? I thought the dispute was over East Jerusalem.

It’s a rhetorical question – it can’t be answered based on the legal reasoning that many countries and international bodies like the United Nations use to declare something legal or illegal regarding Israel’s use of territory it conquered in 1967. The Western half of the city had been part of Israel since 1948 and has been recognized as such since the end of the Israeli War of Independence. Israel had conquered that half of the city – that’s true – but the world recognized Israel’s sovereignty there. Why? Because there was no other claimant to that territory.

On November 29th, 1947, the United Nations voted to dissolve the United Kingdom’s ‘Mandate for Palestine’ and split it into two countries – one Jewish and one Arab. The country looked like a post-modern checker board:

Israel’s Claims to West Jerusalem are Categorical

Israel conquered large sections of this map during the war. Why didn’t the Arab state that those area belonged to ever claim those blocs of land as its own? . . . because that state didn’t exist. No Arab state was ever formed pursuant to the United Nations resolution that partitioned the territory. After the war, a body was formed that considered itself a ‘government in exile,’ but since it hadn’t existed beforehand, its claims to any territory that Israel, Jordan or Egypt conquered were erroneous (unless any of those countries granted that government power over the territories they controlled, which none of them did).

That gave Israel full control of the Galilee region and the area surrounding the Gaza Strip. Jordan annexed the West Bank, which kind of made the territory indisputably Jordanian – even the British recognized the annexation, even if most of the world didn’t.

But what of Jerusalem? Jerusalem was very different. The city, including Bethlehem, was marked as a 3rd section of the UN partition plan – to be governed as an international city – a corpus separatum.  But here we realize that the concept of internationalization of Jerusalem wasn’t binding, but merely a recommendation.  That’s the opinion of international lawyer Elihu Lauterpacht, who goes further explaining that even if it ere binding (my words, not his), that the resolution was entirely a recommendation, especially since only Israel of all the concerned parties actually accepted it.

That makes any other claim to the city, particularly the Western half, nonsensical.  Only Jordan would have any authority on Jerusalem besides Israel, but in that case only in the Eastern half of the city.

The United Nations Position is Absurd in International Law

But the UN still claims all of Jerusalem as an international city, a separate body from the rest of the former mandate for Palestine.  The UN claims in a 1981 report that the city is still to be considered a corpus separatum (Latin for: “separate body”) until the city’s disputes are resolved.  That, by the way, would also make the Palestinian Authority’s control of Bethlehem illegal.  The European Union and other states still consider the international claim the valid one, but that’s only as a matter of political expediency rather than the legal reality.

None of these positions have true standing because all parties outside Israel, Palestine and Jordan have absolutely no grounds to make legal claims about property they don’t control and never have controlled.  If the UN wanted to claim a right to the city, its standing evaporated when it gave up on internationalizing the city in the 1950s (page 16).

UN Resolutions are Contradictory

If the idea of the corpus separatum position were allowed to stand, that would mean nearly half of Israel’s currently recognized international borders are also subject to review, including half of the Israeli-Egyptian border, the corridor of land between Tel Aviv and Jerusalem, and a 1/3 of the Galilee including the city of Nazareth.

If the UN can still maintain a claim on territory that it never arranged for itself to control, that theoretically gives Palestine the ability to challenge Israel’s control of the territories it captured in the 1947-49 War of Independence.

But don’t worry – Palestine can’t.  Why?  The UN already recognized those territories are legitimate parts of Israel and has never challenged them.  Why?  Because those territories were only claimed by Israel at the time of their capture – no other government did, since no government was ever established to represent the Arab state alluded to in the 1947 Partition Plan, at least not before the territories were captured by Israel (a ‘government in exile’ was created later).  The only body which could have claimed Jerusalem was the UN, which it did in 1949.

In a 1949 General Assembly resolution, the UN staked a claim to Jerusalem, Abu Dis and Bethlehem:

“To restate, therefore, its intention that Jerusalem should be placed under a permanent international regime, which should envisage appropriate guarantees for the protection of the Holy Places, both within and outside Jerusalem, and to confirm specifically the following provisions of General Assembly Resolution 181 (II) 3/ (1) the City of Jerusalem shall be established as a corpus separatum under a special international regime and shall be administered by the United Nations; (2) the Trusteeship Council shall be designated to discharge the responsibilities of the Administering Authority …; and (3) the City of Jerusalem shall include the present municipality of Jerusalem plus the surrounding villages and towns, the most eastern of which shall be Abu Dis; the most southern, Bethlehem; the most western, Ein Karim (including also the built-up area of Motsa); and the most northern, Shu’fat.”

This “intention that Jerusalem should be placed under a permanent international regime” is as plain as another country stating its own intention to govern a city under the control of a rival – it’s absurd.  Again, the UN has no grounds to claim sovereignty over Jerusalem, and saying it does would give the UN powers that no other country has in international law to claim sovereignty over territory.

When it comes down to it:

What happened was Israel’s de facto control of the Western half of the city and Jordan’s de facto control of the Eastern half, including the Old City. The world recognized the ceasefire lines, including inside Jerusalem, as international borders. West Jerusalem became Israeli.

So when Israel claims Jerusalem is its capital, and the world recognizes Israel’s Jerusalem covering the Western half of the city but not the East, logic would demand the world recognize that West Jerusalem is the capital of Israel even if there is legal dispute about Israel’s sovereignty over the city’s Eastern section.

Easy Switch: Consulates in West Jerusalem as Embassies and Embassies in Tel Aviv as Consulates

Many diplomats’ offices are already in Jerusalem and switching the status of a consulate to an embassy would not be difficult. If a country has more than one diplomatic post in Israel, one would be in Tel Aviv and the other in Jerusalem. The United States uses its Jerusalem consulate as a sort of embassy to the Palestinians – anyone dealing with the US embassy in Tel Aviv that lives in the West Bank has to deal with the Jerusalem office (this include Jewish settlers in the West Bank). But virtually all of those posts, even the ones intending to serve Palestinians, are actually located in West Jerusalem (Most are in WJ, but some like a Spanish mission and a Turkish mission are in Sheikh Jarrah between the Old City and Mount Scopus).

So what leg does the world have to stand on in not recognizing West Jerusalem is definitively Israeli territory under international law? If global bodies like the UN can recognize Tel Aviv as the capital in contradistinction to Israel’s explicit laws and declarations that a combined West-East Jerusalem is the country’s capital, then certainly the UN and its member states can claim they have the right to only recognize half a capital!

There are arguments elsewhere in the world, for instance in the US Supreme Court, that question whether or not Jerusalem is the capital of Israel and whether it’s a part of Israel at all (check out the link to understand why the US Supreme Court would even care).

Check out my post on The Times of Israel: Israelis won’t Take UN Seriously if it won’t Recognize West Jerusalem