Non-Recognition of Territorial Acquisitions by the Use of Armed Force: The Status of Jerusalem before Italian Courts
1 Introduction
The international legal status of the city of Jerusalem recently came under the scrutiny of the Tribunal of Rome. rai, Italy’s public service broadcasting company, was accused by two Palestinian associations of having aired false information on the city by presenting it as the capital of Israel. The associations requested a judicial order enjoining rai to issue a corrigendum and to publicly declare that the international community does not recognize Jerusalem as Israel’s capital. This action triggered a legal discussion on one of the most intricate contemporary international questions, namely the Israeli-Palestinian conflict and the status of the Holy City. The Tribunal delivered two inconsistent interim orders of protection in close succession. In the first one, it wholly subscribed to the applicants’ view. The second order, however, annulled the first decision and adopted a more nuanced position, basically accepting that the city can be regarded as Israel’s (albeit “contested”) capital.
This paper succinctly discusses the legal arguments that arose in the course of these precautionary proceedings. Without delving into an in-depth examination of such a long-standing dispute, it nonetheless aims to take this opportunity to revisit one thorny question about the status of Jerusalem – namely whether, to what extent and under which conditions the city may be deemed to be Israel’s capital from the standpoint of international law.
We will begin by describing in greater detail the facts of the case, the arguments of the parties and the content of the orders . We will then summarize, with a view to provide the necessary background for the ensuing discussion, the key aspects of the historical process which led to the current arrangement of Jerusalem and we will highlight that the international regulation of the city’s legal status mainly depends on the customary principle of non-recognition of territorial acquisitions by the use of armed force. Subsequently, we will turn to analyse how the non-recognition regime affects the international legal status of Jerusalem. In this regard, we will argue that the position of the applicant associations that Jerusalem is not recognized as the capital of Israel under international law seems excessive. The non-recognition regime only affects the status of East Jerusalem, while Israeli sovereignty over West Jerusalem appears largely uncontroversial. We will conclude that the content of the Tribunal’s second order constituted a more accurate depiction of the complexities surrounding Jerusalem’s status, which should eventually be defined through negotiations between the involved parties.
Massimo Iovane, giurista