Just like any other sovereign nation, Israel has the right to determine its own capital. Jerusalem has been Israel’s capital and seat of government since January 1950. Jerusalem houses the Knesset—Israel’s parliament, the Supreme Court, the residences of its President and Prime Minister and the headquarters of many government ministries. Moreover, these Israeli government institutions all are located in the heart of West Jerusalem which, unlike the Eastern parts of Jerusalem that came under Jordanian sovereignty from 1948 to 1967, has been under Israel’s continuous and undisputed sovereignty from its founding.

When the United States announced it would move its embassy from Tel Aviv to Jerusalem in December 2017, it did so pursuant to 1995 Congressional legislation known as the Jerusalem Embassy Act, mandating the federal government to relocate the American Embassy to Jerusalem.[1] This law remained unimplemented for more than 20 years because of a loophole that allowed the President to waive its implementation on national security grounds. The law expressly recognized Israel’s right under international law to designate its own capital: “Each sovereign nation, under international law and custom, may designate its own capital.”[2]

The claim that locating embassies in Jerusalem violates international law appears to be based on UN General Assembly resolution 181 which has no legal force in international law. As explained by international law expert and former International Criminal Court judge Stephen M. Schwebel, General Assembly resolutions are “not, generally speaking…binding in international law.”[3] Chapter IV of the UN Charter clearly limits the General Assembly’s powers to making “recommendations.” UNGA resolutions—adopted by a simple majority vote of member states—are nothing more than political declarations.

UNGA resolution 181 of November 29, 1947, better known as the Partition resolution, designated parts of mandatory Palestine for a Jewish and an Arab state and proposed that the greater Jerusalem area would become a “corpus separatum,” an international city with no sovereign.[4] Aside from the fact that it is not legally binding, the Partition resolution was completely rejected by the Arab states which refused to accept a Jewish state in any borders and proceeded to launch a war of annihilation against the nascent State of Israel.[5]

Israel’s boundaries at the end of that war, set by the 1949 UN-mediated armistice agreements between Israel on the one hand and Jordan, Egypt, Syria and Lebanon on the other hand, differed considerably from what had been proposed in the Partition resolution. Significantly, Western Jerusalem—the seat of Israel’s government—came under full Israeli sovereignty. Therefore, the Partition resolution’s proposal concerning Jerusalem is completely irrelevant and has no bearing on the legal status of Jerusalem today.

As Israel’s first Prime Minister David Ben Gurion put it in December 1949 “In our opinion the decision of 29 November regarding Jerusalem is null and void.”[6] Below is an excerpt of Ben Gurion’s remarks on Jerusalem.

We do not judge the U.N., which did nothing when nations, which were members of the U.N., declared war on its resolution of 29 November 1947, trying to prevent the establishment of Israel by force, to annihilate the Jewish population in the Holy Land and destroy Jerusalem, the holy city of the Jewish people.

Had we not been able to withstand the aggressors who rebelled against the U.N., Jewish Jerusalem would have been wiped off the face of the earth, the Jewish population would have been eradicated and the State of Israel would not have arisen. Thus, we are no longer morally bound by the U.N. resolution of November 29, since the U.N. was unable to implement it. In our opinion the decision of 29 November regarding Jerusalem is null and void.[7]

It is also worth noting that the territorial boundaries of the “corpus separatum” in the Partition Resolution were larger than today’s Jerusalem and even included parts of Bethlehem, which the international community now treats as PA territory and not subject to any “corpus separatum.”[8]