President Trump Could (and Might Actually) Unilaterally Recognize Jerusalem as the Capital of Israel

by Julian Ku

emblem_of_jerusalem-svgAs we all continue to digest the stunning election results from last week, I continue to focus on ways in which a President Trump could use his substantial powers over foreign affairs in unique and unprecedented ways.  Withdrawing from trade agreements could be a major theme of his administration.  Somewhat less noticed is the possibility that a President Trump fulfills his campaign promise to recognize Jerusalem as the capital of Israel.

I don’t want to get into the merits of whether Jerusalem is in fact part of Israel under international law. I once wrote a whole legal memo on a topic related to Jerusalem as an intern at the U.S. State Department that is probably gathering dust somewhere, and the contents of which I’ve already largely forgotten.

For our purposes, what matters is that the U.S. Supreme Court recently confirmed in Zivotofsky v. Kerry that the U.S. Constitution grants the President the exclusive power to recognize foreign nations and governments.  This power includes, the Court held, the exclusive power to withhold recognition of Jerusalem as the capital of Israel.  Congress cannot infringe on this power by requiring, for instance, that the President issue passports designating Jerusalem as part of Israel.  Hence, the exclusive recognition power extends to recognizing how far a foreign sovereign’s rule extend, such as whether or not Israel has sovereignty over Jerusalem.

The Court’s ruling in Zivotofsky is not exactly controversial.  But it seems uniquely relevant as it is entirely plausible that Donald Trump will actually carry out his campaign promise to recognize Jerusalem as the capital of Israel and move the U.S. embassy there.   Most U.S. Presidents pledge to do so during their campaigns, and then are advised by their State Department after taking office that to do so would undermine the Middle East peace process or something. This seems less likely if, as rumors suggest, famously pro-Israel former NY mayor Rudolph Giuliani is appointed Secretary of State).

It might also violate U.N. Resolution 242 and other UN resolutions.  Certainly, the Palestinian Authority is ready to raise all holy hell if Trump carries out his promise.  But the U.S. President is also authorized, under U.S. constitutional law, to violate or abrogate UN Security  Council resolutions, if 242 and other resolutions actually prohibited such recognition.

It is also worth noting the President’s recognition power could be applied elsewhere in the world’s many ongoing disputed conflicts.  President Trump could, for instance, unilaterally recognize Taiwan as an independent country (assuming Taiwan declared as such). Or he could recognize that Crimea is part of Russia.

Like the swift recognition of Jerusalem, I am not giving an opinion here on whether any of these policies are wise or prudent. I will hazard a guess, however, and say that of all of the recently elected US presidents, Trump is the most likely to go out on a limb and push the “recognition” button in unexpected ways.

http://opiniojuris.org/2016/11/15/president-trump-could-unilaterally-recognize-jerusalem-as-the-capital-of-israel-taiwan-as-an-independent-country-crimea-as-part-of-russia-etc/

11 Responses

  1. What is really odd is that the US and other countries insist that a UN recommendation, the internationalization of Jerusalem, from 1947 (!) be a so-called “last” definition of the borders and ownership of the city and that trumps (sorry for the pun) anything else that happened on the ground since then.

    That resolution, 181, was predicated on a basis that “any attempt to alter by force the settlement envisaged by this resolution” would be “determine[d] as a threat to the peace, breach of the peace or act of aggression”. Since the Arabs forces acted aggressively, and publicly rejected the Resolution, it should have, by now, called a dead letter (no pun intended). How then can seven decades later we be still arguing over whether Israel exhibits sovereignty over the city?

    Moreover, as in Part III, Section D. which defines the “special regime” over Jerusalem, i.e., its internationalization, makes clear, “The Statute elaborated by the Trusteeship Council the aforementioned principles shall come into force not later than 1 October 1948. It shall remain in force in the first instance for a period of ten years”. Ten years has more than passed, seven times over. How can such a proposed regime that was rejected by one side and should have dissipated after 10 years still dictate American policy 70 years later and after so much has occurred on the ground?

  2. Good let Trump move the U.S. Embassy.

  3. Jerusalem was, is and always will be the Capital of the Jewish Nation since its establishment over 3,000 years ago by King David.

    The world and its politicians can go and fly kites for all I care. They can never change the facts laid down by our ancestors so long ago.

    Give me another example of a nation that withstood the onslaught of empires throughout history, that have disappeared long ago, to make a comeback in the 20th C and re-establish its native language, country and capital.

    Jerusalem is mentioned about 700 times in the Bible and nearly 300 times in the New Testament as the Capital of Israel/Judea.

    “Washington”, “the District”, or simply “D.C.”, is the capital of the United States. The signing of the Residence Act on July 16, 1790, approved the creation of a capital district located along the Potomac River on the country’s East Coast.

    A bit of respect for history and the Bibles.

  4. Response…Resolution 181 was a non-binding UN General Assembly resolution and thus functioned only as a recommendation, as do all UNGA resolutions. This resolution could have become binding had all affected parties, Palestinian Jews and Palestinian Arabs agreed to it. But the Arabs violently disagreed and thus this resolution never became law. It is my understanding that what governs in this case is the 1922 Mandate for Palestine, a “sacred trust” which has never been amended or abrogated and which reserved all of Western Palestine for World Jewry. I know of no document which supersedes this Mandate. Even Jordan recognizes Israel’s eastern border with it as the middle of the course of the Jordan and Yarmouk Rivers. (See the 199i4 peace treaty between Israel and Jordan for this language.)

  5. @ Yisrael Medad, Marjorie Stamm Rosenfeld & Avinoam Ben Dor Well said. Agree with the comments.

  6. Everything I meant to write is already posted by Avinoam Ben Dor, praise God! Someone else writes, “[they] don’t want to get into the merits of whether Jerusalem is in fact part of Israel under international law.” LOL! Some folks would seriously benefit intellectually from ready HIStory as recorded in the Bible and not the Babylonian gibberish put out by the U.N.

  7. The Palestinians want Israel destroyed. The Arabs want Israel destroyed. The European left, in their fantasies about occupations and the like, show little concern of even another holocaust as long as it is not on their shores and contributes to their guilt. The UN is basically an anti-semitic organization which thinks of the Israelis as horrible for supporting its self-defence. A terrorist organization, now with cooperation from the West Bank, controls the Gaza and as an instrument of policy lobs missiles into Israel and cheerfully murders its visitors and citizens. I could go on and on. Let the Palestinians and Arabs rail. They will no matter what Israel does. But let Jerusalem assume its ancient place in Judea and forget corrupt international displeasure.

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  1. […] President Trump Could Unilaterally Recognize Jerusalem as the Capital of Israel As we all continue to digest the stunning election results from last week, I continue to focus on ways in which a President Trump could use his substantial powers over foreign affairs in unique and unprecedented ways. Withdrawing from trade agreements could be a major theme of his administration. Somewhat less noticed is the possibility that a President Trump fulfills his campaign promise to recognize Jerusalem as the capital of Israel.I don’t want to get into the merits of whether Jerusalem is in fact part of Israel under international law. I once wrote a whole legal memo on a topic related to Jerusalem as an intern at the U.S. State Department that is probably gathering dust somewhere, and the contents of which I’ve already largely forgotten.For our purposes, what matters is that the U.S. Supreme Court recently confirmed in Zivotofsky v. Kerry that the U.S. Constitution grants the President the exclusive power to recognize foreign nations and governments. This power includes, the Court held, the exclusive power to withhold recognition of Jerusalem as the capital of Israel. Congress cannot infringe on this power by requiring, for instance, that the President issue passports designating Jerusalem as part of Israel. Hence, the exclusive recognition power extends to recognizing how far a foreign sovereign’s rule extend, such as whether or not Israel has sovereignty over Jerusalem. […]

  2. […] by Julian Ku, Opinio Juris— […]

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