Multilateralism in int’l legal order

On Dec. 21 in an unprecedented vote, the United Nations General Assembly strongly denounced the United States’ recognition of Jerusalem as the capital of Israel and the intended transfer of the US Embassy from Tel Aviv to the Holy City.

As many as 128 countries, including major recipients of US aid such as Egypt, Afghanistan and Iraq, voted in favor of the resolution. The only countries that voted against were the United States, Israel, Togo, Micronesia, Nauru, Palau, Marshall Islands, Guatemala, and Honduras. Meanwhile, 35 UN member-states, including the Philippines, abstained.

Notably, the overwhelming vote came despite threats from the United States. At a Cabinet meeting, US President Donald Trump brought up the matter and remarked, “Well, we’re watching those votes. Let them vote against us, we’ll save a lot. We don’t care.” As though Trump’s words were not clear enough, US Ambassador to the UN Nikki Haley made a direct threat to the UN General Assembly: “[T]his vote will make a difference on how Americans look at the UN and on how we look at countries who disrespect us at the UN. And this vote will be remembered.”

Ironically, the UN Security Council (of which the United States is a permanent member) has unanimously adopted a number of resolutions condemning Israel’s actions since its annexation of East Jerusalem in 1967.

Among these is Resolution 478 (1980) of Aug. 20, 1980, in response to Israel’s adoption of the basic law making Jerusalem the “complete and united” capital of Israel. For the UN Security Council, the basic law constituted a violation of international law, and therefore void.

Further, in the 2004 Palestinian Wall Advisory Opinion, the International Court of Justice (ICJ) characterized the obligation to respect the right of Palestinians to self-determination as an obligation erga omnes — that is, an obligation owed to the community of nations as a whole.

The ICJ ruled: “[A]ll States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction.” Without doubt, the US recognition of Jerusalem as the capital of Israel is a violation of international law that the community of nations justifiably denounced.

This is the new international legal order post-World War II. With the devastation they suffered, states began to reject the Machiavellian concept of “might is right” and conceived of a legal order premised on sovereign equality and collective action.

This realization triggered the dawn of multilateralism in 1945, when the UN was constituted as a “world organization” and proscribed the threat or use of force.

Then, in 1966, states entered into multilateral human rights conventions consistent with their collective aspirations under the Universal Declaration on Human Rights.

In 1994, the UN Convention on the Law of the Sea came into force as a multilateral treaty for the peaceful settlement of maritime disputes, among others.

Recent developments continue to strengthen this multilateral framework. For instance, North Korea earns the ire of the international community whenever it threatens to use its nuclear weapons. Similarly, the arbitral award rendered in favor of the Philippines significantly tempered China’s aggressiveness in the South China Sea.

Equally noteworthy, the International Criminal Court and other international criminal tribunals convicted persons, including heads of state, guilty of genocide, war crimes, and crimes against humanity.

The reason is simple: State sovereignty is no license to commit “serious crimes of international concern.”

Indeed, where the government waives the sovereign rights of the state in favor of another state or commits grave human rights violations against its own people, international law may well be the only ally of the nation. Perhaps this is something

Filipinos can look to in the year ahead.

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Neil B. Nucup was a United Nations fellow in the recent annual Regional Course on International Law for Asia-Pacific held in Bangkok. Interested applicants may visit https://www.un.org/law/rcil.