After the Peace of Westphalia, which brought the harbingers of an international community made up of modern nation states, the concept of a legal and regulatory system governing international relations between the members of that community of peoples of the modern civilised world began to emerge through the writings of Hugo Grotius and his contemporaries. The process of establishing binding rules continued to evolve until it eventually coalesced in the form of a coherent “international community” governed by a universal system embodied in the United Nations and its charter which was signed in San Francisco in 1945.
That international community consisted of peoples and nations that had resolved to renounce warfare as a means to resolve disputes. They simultaneously adopted a system of rules to provide for the sovereignty of international law and they established proper mechanisms that disputants could turn to, such as the International Court of Justice, in the event that acceptable and binding solutions could not be found in the frameworks of the UN Security Council and General Assembly.
The US has severely jeopardised that system through its flagrant departure from the rules and principles of international law in a bid to determine the fate of a region outside the bounds of its sovereignty in a manner that serves one of its political allies. That ally is occupying the territory of another people in violation of international law and conventions and resolutions adopted in accordance with the provisions of the UN Charter.
There is only one course to remedy that departure from international legitimacy that is consistent with the current international system and its peaceful prerequisites. It is to condemn that deviant behaviour on the part of the US executive and legislative authorities that flies in the face of international law.
Then, if that condemnation fails to compel the US president to bring his behaviour into line with international law by retracting the decision he issued on 6 December 2017 for the purpose of protecting his popularity ratings by exploiting decisions concerning Israel that were adopted by Congress in 1995, also for self-serving domestic political reasons, the international community should turn to the International Court of Justice (ICJ).
Under the UN Charter, the ICJ is the agency responsible for adjudicating on matters pertaining to international legitimacy. The ICJ, alone, has the authority to determine whether or not a certain behaviour on the part of a member state is in keeping with international law. It can exercise this authority in two ways. One is through its fully mandatory judicial oversight in accordance with which it has the power to issue rulings that are binding and enforceable on the parties that have agreed to submit to the mandate of the court.
The second comes into play where parties do not agree to submit to the mandate of the court. In this case, the ICJ can be called upon by a UN agency — usually the General Assembly — to issue advisory opinions in the event that one of the permanent members of the Security Council blocks a universally acceptable solution through that institution by wielding its right to veto. Such a scenario occurred in 2004 in the case of the Separation Wall that Israel constructed in violation of international law.
The US should prove its respect for the sovereignty of international law by declaring its willingness to submit itself to the authority of the ICJ on the matter of Jerusalem. As for those members of the international community that seek to safeguard international legitimacy, they should immediately set into motion the processes necessary to appeal to the IJC for what could be the case of the century.
But they will need to prepare for this carefully in order to ensure that the international judicial body can have its say on the gross breech of international law on the part of a country that has long boasted of being the world’s leader in democracy and the rule of law.
Towards this end, it might be useful for the Arab League to organise an international conference that would bring together prominent experts in international law from the Arab world and elsewhere who are committed to promoting the sovereignty of and respect for law. The papers presented and discussed at that conference could form the substantial kernel of the drive to appeal to the ICJ at the soonest possible time.
If, on the other hand, the US refuses to voluntarily submit itself to the authority of the ICJ and chooses to go the way of renegade states that are bent on abusing the rights of others, then the international community will have no other option but to pursue the course it had taken in 2003 when the General Assembly asked the ICJ to issue its opinion on the Separation Wall that Israel began to construct on the occupied territories. The advisory opinion, issued 9 July 2004 and approved by 14 judges, held that the wall was illegal. The sole dissenting view was that of the US judge.
I believe that the drive to counter President Donald Trump’s recent decision will produce the same result. The US will argue that the ICJ does not have jurisdiction on this matter and that Washington does not have to submit to the authority of the court, but regardless of the arguments it cites, it will find that the court has already responded to them in 2004.
In dozens of points extending over more than 20 pages, the court concluded that the dispute in question did fall under its jurisdiction and that there was nothing to prevent the court from exercising its authority on that matter. That view was reasserted in the final opinion censuring the Separation Wall, a view adopted by 14 judges against a lonely American one, the ratio that was repeated in the UN Security Council vote on the decision taken by a US president who is of American nationality and Zionist identity.
*This article was first published in Al-Ahram Weekly newspaper