Mort Klein: UN Had No Legal Right to Vote on Resolution Condemning Trump Recognizing Israel’s Capital

Israeli flags fly near the Dome of the Rock in the Al-Aqsa mosque compound on December 5, 2017. The EU's diplomatic chief Federica Mogherini said that the status of Jerusalem must be resolved 'through negotiations', as US President Donald Trump mulls recognising the city as the capital of Israel. / …
THOMAS COEX/AFP/Getty

The United Nations General Assembly resolution criticizing President Donald Trump’s sovereign right to recognize Israel’s capital, violates at least three articles of the United Nations Charter, and is not within the power of the UN General Assembly to address, for the following reasons:

(1) UN Charter Article 2 (7) prohibits the United Nations from dealing with matters within the sovereign domestic jurisdiction of the United States.  Article 2(7) states: “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.”

President Trump’s recognition power – his decision to recognize Israel’s capital Jerusalem – is a matter within the domestic jurisdiction of the United States.  The U.S. Supreme Court confirmed this in Zivotofsky v. Kerry, 576 U.S. __, 135 U.S. 2076 (2015), saying: “The text and structure of the Constitution grant the President the power to recognize foreign nations and governments.”  Thus, the United Nations is prohibited from criticizing the United States’ sovereign right to confer recognition.

(2)  If, despite the foregoing and item (3) below, the United Nations nonetheless is authorized to deal with this matter, UN Charter Article 12 prohibits the UN General Assembly from dealing with it, because according to UN Security Council Resolution 2334 (2016), the matter is still before the UN Security Council, which has not requested that the UN General Assembly take action or make recommendations.

UN Charter Article 12 states: “While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.”

UN Security Council Resolution 2334 (2016), which purports to deal with the status of “East Jerusalem” (a misnomer for the eastern portion of Jerusalem), among other issues, specifically states UN Security Council “Decides to remain seized of the matter.”  (UNSC Res. 2334, para. 13.)  In other words, the UN Security Council is continuing to exercise jurisdiction of the matter.   The UN Security Council has not requested that the General Assembly make recommendations on this matter, and thus the UN General Assembly has no power to pass a resolution regarding the matter.  (UN General Assembly resolutions are recommendations.)   (UNSC Res. 2334, paragraph 12, merely “Requests the Secretary-General to report to the Council every three months on the implementation of the provisions of the present resolution.”  This reporting request does not authorize a UN General Assembly recommendation/resolution.

(3)  Like all anti-Israel resolutions, this new proposed anti-American, anti-Israel UN General Assembly resolution violates UN Charter Article 80 (the Jewish people’s clause) – which preserved the Jewish people’s rights to reconstitute the Jewish homeland and closely settle the Palestine Mandate, which encompassed Jerusalem.

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