The Volokh Conspiracy
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Five ways the Trump administration can negate the anti-Israel U.N. Security Council resolution
The U.S. decision to allow a U.N. Security Council resolution condemning Israeli settlements to pass was met with bipartisan condemnation, including from leading players in efforts to achieve a two-state solution, such as Democrats Dennis Ross and George Mitchell.
Of course, the goal of the Obama administration was to box in President-elect Donald Trump's foreign policy. The most direct way to reject the Security Council Resolution 2334 is to reject the opinions it expresses and act against its recommendations. Trump will likely seek to reverse the measure, not only because of substantial policy disagreements, but to reject the notion that a president can bind his successors more tightly through U.N. action than through statutes or executive orders.
Trump cannot directly reverse the resolution, but he and Congress can take action to negate its ideas, and to create a different reality from the one Resolution 2334 seeks to promote. Here are some ideas—most of which require no legislative action.
1) The U.S. must clearly declare that Israeli settlements do not violate international law. The Security Council resolution says that Jewish settlements in east Jerusalem are illegal and that the Israeli government must prevent them. But the council is neither a legislature nor a court. It cannot create international law. But while Resolution 2334 is not binding, it does contribute to the formation of international legal opinion, which is why the United States must clearly articulate a contrary (and correct) view.
The Security Council's broad and general condemnation of any Jewish presence whatsoever in eastern Jerusalem and the West Bank is a unique rule invented for Israel. There has never been a prolonged belligerent occupation—from the U.S. occupation of West Berlin to Turkey's ongoing occupation of Cyprus to Russia's of Crimea—where the occupying power has blocked its citizens from living in the territory under its control. Moreover, neither the United Nations nor any other international body has ever suggested they must do so. What is being demanded of Israel in its historical homeland has never been demanded of any other state, and never will be.
Thus the United States must clearly state its position that whatever the political merits of Jewish settlements, they do not violate international law. President Jimmy Carter's State Department issued a memo opining that settlements were illegal. President Ronald Reagan subsequently rejected this view. As Obama reenacts the tail end of the Carter presidency, Trump must adopt Reagan's position, with greater emphasis and elaboration.
Going beyond executive policy statements, the constitutional role of defining offenses "against the Law of Nations" falls to Congress, which can pass legislation making clear that Israel does not violate international law by permitting Jews to live in territories under its control, or by providing them with municipal services. This is already implicit in certain laws, such as the Jerusalem Embassy Act and the recent ban on enforcing foreign judgments against Israeli entities that are based on the view that doing business in Israeli-controlled territories is illegal. Congress can expand on this approach, and should explicitly invoke its offenses power in doing so.
http://www.washingtonpost.com/video/world/israeli-settlements-in-the-west-bank-could-get-a-boost-under-trumps-presidency/2017/01/02/f2fbae00-d130-11e6-9651-54a0154cf5b3_video.html
2) The United States should move the embassy not merely to Jerusalem, but to the location of the current Consular Section in the Arnona neighborhood. This is a few hundred meters over the imaginary line across which the United Nations says Jews may not go. Moving the embassy there would be the most tangible rejection of the resolution's "1967 lines" policy. It would also fulfill the Republican Party platform of moving the embassy to "indivisible" Jerusalem, and be in accordance with the 1995 Jerusalem Embassy Act, which calls for moving the embassy to a "unified" Jerusalem, i.e., including those parts which were reunified in 1967.
3) The United States must clarify that all its treaties or laws applicable to Israel apply fully to all areas under Israel's civil jurisdiction. Congress already took this approach in the United States-Israel Free Trade Agreement Implementation Act, as well as several recent anti-boycott laws. It must now be generalized, through legislation, presidential proclamations, and new codicils to existing treaties with Israel. For example, Trump could immediately rescind Treasury regulations that require Israel goods from the West Bank to be labeled "Made in West Bank," and instead direct that they be labeled "Made in Israel," in line with their underlying customs treatment.
Doing so would clearly reject the United Nations' call for countries to adopt a differentiation policy. "Differentiation" is a European Union euphemism for partial boycotts. The United States must defy that suggestion, and by doing so it will make it much harder for the E.U. and others to follow it.
4) Congress should rapidly reintroduce and pass several anti-boycott bills from the outgoing session. In addition, to respond to Resolution 2334's encouragement of E.U. boycotts aimed at the settlements—but which would inherently spill over to all of Israel—a small amendment must be made to the the anti-boycott provisions of the Export Administration Act, explicitly stating that it applies to boycotts of territories under Israeli jurisdiction.
5) At the United Nations, defunding is one option—but vetoing Security Council resolutions not clearly necessary to the U.S. national interest is another. Strictly applied, this practice would grind the council to a halt, as most of its resolutions merely wag fingers at ongoing conflicts.
Some resolutions reauthorize peacekeeping missions, and vetoing the August reauthorization of the United Nations Interim Force in Lebanon (UNIFIL) would be a valuable way of addressing both the United Nations' ineffectiveness and its double standard toward Israel. UNIFIL was tasked with disarming Hezbollah in southern Lebanon by Security Council Resolution 1701 in 2006. A decade later, instead of disarmament, Hezbollah runs the country and has 100,000 missiles ready to "annihilate Israel." Vetoing UNIFIL's reauthorization would bring welcome accountability to peacekeeping missions, whose mandates get rolled over almost automatically, and would remove a force whose principle accomplishment is assisting Hezbollah.
