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United States Recognizes Israeli Sovereignty Over the Golan Heights

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In a reversal of decades of U.S. foreign policy, on March 25, 2019, President Trump issued a presidential proclamation recognizing Israeli sovereignty over the Golan Heights, a strategic piece of territory captured by Israel from Syria during the Six-Day War in 1967. This move, which generated international criticism, is the latest in a series of actions by the Trump administration that advance the interests of the Israeli government.

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2 U.S. Dep't of State Press Release, Remarks with Israeli Prime Minister Benjamin Netanyahu Before Dinner (Mar. 21, 2019), at https://www.state.gov/secretary/remarks/2019/03/290554.htm [https://perma.cc/SX9A-87GE]; Scott R. Anderson, Recognizing Israel's Claims to the Golan Heights: Trump's Decision in Perspective, Lawfare (Mar. 22, 2019), at https://www.lawfareblog.com/recognizing-israels-claims-golan-heights-trumps-decision-perspective (observing that “[l]eft unclear [from Trump's tweet] was whether the president was merely calling for U.S. recognition … or actually implementing it” and that “the first person to confirm the change in U.S. policy was none other than Israeli Prime Minister Benjamin Netanyahu”).

3 Donald J. Trump, Proclamation 9852 – Recognizing the Golan Heights as Part of the State of Israel, 2019 Daily Comp. Pres. Doc. No. 172, at 3 (Mar. 25). As a matter of U.S. domestic law, the Supreme Court held in 2015 that “the power to recognize foreign states and governments and their territorial bounds is exclusive to the Presidency.” Zivotofsky v. Kerry, 135 S. Ct. 2076, 2094 (2015).

4 Remarks with Prime Minister Benjamin Netanyahu of Israel on Signing a Proclamation Recognizing the Golan Heights as Part of the State of Israel and an Exchange with Reporters, 2019 Daily Comp. Pres. Doc. No. 171, at 1 (Mar. 25).

5 Id. at 3.

6 Id.

7 Liz Sly, Loveday Morris & Suzan Haidamous, Trump's Golan Tweet Inflames Regional Tensions as Syria Vows to Recover the Strategic Plateau, Wash. Post (Mar. 22, 2019), at https://www.washingtonpost.com/world/middle_east/trumps-golan-tweet-inflames-regional-tensions-as-syria-vows-to-recover-the-occupied-land/2019/03/22/ee13134e-4c1a-11e9-8cfc-2c5d0999c21e_story.html?utm_term=.36c6e58004f4.

8 Luke Baker, Netanyahu Asks Trump to Recognize Israeli Sovereignty Over Golan Heights, Reuters (Feb. 16, 2017), at https://www.reuters.com/article/us-usa-trump-israel-golan/netanyahu-asks-trump-to-recognize-israeli-sovereignty-over-golan-heights-idUSKBN15U2XX.

9 Karen DeYoung & Carol Morello, In Trump's Golan Heights Announcement, Politics Overshadowed Security, Wash. Post (Mar. 23, 2019), at https://www.washingtonpost.com/world/national-security/how-irans-moves-supercharged-trumps-announcement-on-golan-heights/2019/03/22/80ff2d06-4cce-11e9-b79a-961983b7e0cd_story.html?utm_term=.2e40bc908463.

10 Sly, Morris & Haidamous, supra note 7.

11 John Bolton ), Twitter (Mar. 22, 2019, 8:49 AM), at https://twitter.com/ambjohnbolton/status/1109119841645068289?lang=en [https://perma.cc/A5V8-PY36]; see also DeYoung & Morello, supra note 9.

12 Golan Heights Profile, BBC (Mar. 25, 2019), at https://www.bbc.com/news/world-middle-east-14724842.

13 See Eyal Benvenisti, The International Law of Occupation 5–6 (2004) (“The foundation upon which the entire law of occupation is based is the principle of inalienability of sovereignty through the actual or threatened use of force. Effective control by foreign military force can never bring about by itself a valid transfer of sovereignty. From the principle of inalienable sovereignty over a territory spring the constraints that international law imposes upon the occupant.”).

14 SC Res. 242, para. 1 (Nov. 22, 1967). A few months earlier, the then Legal Adviser of the Israeli Minister of Foreign Affairs, Theodor Meron, had advised the Israeli government that the establishment of civilian settlements in the occupied Golan Heights was prohibited by the Fourth Geneva Convention. Theodor Meron, The West Bank and International Humanitarian Law on the Eve of the Fiftieth Anniversary of the Six-Day War, 111 AJIL 357, 358 (2017).

15 SC Res. 338, paras. 1–2 (Oct. 22, 1973).

16 SC Res. 350, para. 3 (May 31, 1974); see also United Nations Peacekeeping, UNDOF Fact Sheet, at https://peacekeeping.un.org/en/mission/undof (noting the deployment of roughly 1,100 mission members as of March 2019).

18 SC Res. 497, para. 1 (Dec. 17, 1981).

20 Bernard Gwertzman, U.S. Suspends Strategic Pact and Arms Deal with Israel Over Annexation of Golan, N.Y. Times (Dec. 19, 1981), at https://www.nytimes.com/1981/12/19/world/us-suspends-strategic-pact-and-arms-deal-with-israel-over-annexation-of-golan.html.

21 Baker, supra note 8.

22 U.S. Dep't of State Press Release, Daily Press Briefing – April 18, 2016, at 2:00–3:00 (Apr. 18, 2016), at https://2009-2017.state.gov/r/pa/prs/dpb/2016/04/255946.htm [https://perma.cc/NB8Y-HQEK] (quoting then State Department spokesperson John Kirby as saying in response to Netanyahu's remarks that “the U.S. position on the status of the Golan Heights is longstanding and is unchanged. Every administration on both sides of the aisle since 1967 has maintained that those territories are not part of Israel. The conditions under which those territories are ultimately returned should be decided through negotiations between the respective parties.”).

23 U.S. Dep't of State, Remarks to the Press (Mar. 26, 2019), at https://www.state.gov/remarks-to-the-press-7 [https://perma.cc/W2MK-CJHP].

24 State Department Fiscal Year 2020 Budget Request, C-SPAN, at 49:00–51:00 (Apr. 9, 2019), at https://www.c-span.org/video/?459622-1/secretary-state-pompeo-testifies-fiscal-year-2020-budget-request&start=2953.

25 See Julian Borger, Pompeo Flounders on Why Annexation is Good for the Golan But Not for Crimea, Guardian (Apr. 11, 2019), at https://www.theguardian.com/us-news/2019/apr/11/golan-heights-crimea-pompeo-us-state-department (reporting that the State Department did provide follow-up information that reiterated the situational differences between the situation of the Golan Heights and that of Crimea).

26 Michael R. Pompeo & David Friedman, International Law Backs the Trump Golan Policy, Wall St. J. (May 14, 2019), at https://www.wsj.com/articles/international-law-backs-the-trump-golan-policy-11557875474.

27 Id. (further noting that Israel had returned substantial territory in Sinai that it had occupied during the Six Day War).

28 Id. The editorial also described as “baseless” the statement of UN Secretary-General Antonio Guterres that “Israel's 1981 annexation of the Golan [was] ‘null and void and without international legal effect.’” Id. The editorial did not discuss Resolution 497, which uses this language. See id. For a critique of the editorial, see Oona Hathaway & Scott Shapiro, Trump's Golan Policy and Its Threat to the Post-War International Legal Order, Just Security (May 16, 2019), at https://www.justsecurity.org/64141/trumps-golan-policy-and-its-threat-to-the-post-war-international-legal-order.

29 AFP & Times of Israel Staff, Syria Asks Security Council to Uphold Resolutions on Golan, Times Israel (Mar. 23, 2019), at https://www.timesofisrael.com/syria-asks-security-council-to-uphold-resolutions-on-golan.

30 Delegation of the European Union to Israel Press Release, Declaration by the High Representative on Behalf of the EU on the Golan Heights (Mar. 27, 2019), at https://eeas.europa.eu/delegations/israel/60274/declaration-high-representative-behalf-eu-golan-heights_en.

31 United Nations Press Release, Security Council Members Regret Decision by United States to Recognize Israel's Sovereignty Over Occupied Syrian Golan (Mar. 27, 2019), at https://www.un.org/press/en/2019/sc13753.doc.htm.

32 Id.

33 U.S. Mission to the United Nations Press Release, Remarks at a UN Security Council Meeting on the UN Disengagement Observer Force and the Golan Heights (Mar. 27, 2019), at https://usun.state.gov/remarks/8993 [https://perma.cc/T5R3-MALC].

34 Jean Galbraith, Contemporary Practice of the United States, 112 AJIL 306, 306 (2018).

35 Jean Galbraith, Contemporary Practice of the United States, 113 AJIL 143, 147 (2019).

36 Id. at 148–49.

37 See Isabel Kershner, After Coalition Talks Crumble, Israel on Course for Another Election, N.Y. Times (May 29, 2019), at https://www.nytimes.com/2019/05/29/world/middleeast/israel-election-benjamin-netanyahu.html (describing Netanyahu's failure to form a government and the scheduling of new elections, tentatively set for September 17).

38 Edward Wong & Catie Edmondson, Pompeo Refuses to Say What U.S. Would Do if Israel Annexes West Bank, N.Y. Times (Apr. 9, 2019), at https://www.nytimes.com/2019/04/09/us/politics/pompeo-israel-west-bank.html.

39 Id.; see generally C-SPAN, supra note 24.

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