[Eugene Kontorovich] Five ways the Trump administration can negate the anti-Israel U.N. Security Council resolution

Members of the U.N. Security Council vote at the United Nations headquarters on Dec. 23, 2016, in favor of condemning Israel for its practice of establishing settlements in the West Bank and east Jerusalem. (Manuel Elias/The United Nations via Associated Press)

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