The U.S. administration’s declared intention to reopen its Jerusalem consulate as a representative body to the Palestinian leadership and to provide consular services to the population of the disputed territories is becoming a growing, political stumbling block in the relationship between Israel and the United States.

As currently considered, establishing a consulate would be incompatible with U.S. policy and American international-law commitments. It would also undermine U.S. commitments and proclamations.

If Israel formally refused to give its consent to the decision to open the consulate, and the Biden administration went ahead with its implementation, it would nonetheless put the United States in a position of flagrant violation of the relevant international convention dealing with consular relations between states.

The complexity and delicacy of the consulate issue are being compounded by statements made by Palestinian leaders, who are turning the case into a symbolic focal point in their claims to re-divide Jerusalem and to cancel the former administration’s recognition of Jerusalem as Israel’s capital city.

In addition to the U.S. Congress’s commitments over the years, endorsing Jerusalem’s status as Israel’s capital city, the following points of international law cannot be ignored:

  • The May 2018 proclamation by the United States formally recognizing Jerusalem as the capital of Israel constituted a significant change of U.S. policy. It revoked the situation that existed beforehand in which, since the establishment of the State of Israel in 1948, Jerusalem had never been considered by the United States to be Israeli sovereign territory.
  • Formal American recognition of Israel’s sovereignty in Jerusalem established a new bilateral legal situation that replaced the former policy of non-recognition, whereby the United States acknowledged the application of Israeli law in Jerusalem.
  • The former situation had enabled the United States, as well as some other countries, to maintain independent consular missions, which existed since the mid-19th century Ottoman administration of the area and intended to serve Americans visiting the Holy Land.
  • With the establishment, through the 1993 Oslo Accords, of the Palestinian Authority as an autonomous administration with powers and responsibilities in parts of the disputed territories, the independent and separate U.S. Consulate in Jerusalem developed a new role. It was to oversee U.S. relations with this Palestinian political entity and Palestinian residents of eastern Jerusalem, the West Bank areas of Judea and Samaria and the Gaza Strip.
  • In acknowledging Israel’s sovereignty in Jerusalem, the 2018 proclamation irrevocably altered this situation and rendered the existence of an independent U.S. consulate in Jerusalem, serving the Palestinian administration and population of the territories, as redundant and incompatible with U.S. official policy.
  • With the 2018 recognition of Jerusalem as Israel’s capital, the mutually accepted consular relationship between Israel and the United States is based on the 1963 Vienna Convention of Consular Relations, to which both Israel and the United States are parties.
  • Article 4 of this convention determines that consular posts or any other offices forming part of a consular post may only be established in the territory of the receiving state with that state’s consent. Similarly, articles 7 and 8 of the convention require that the exercise of consular functions vis-à-vis or on behalf of another state requires specific approval.
  • The United States is one of the signatories as a witness to the 1993-5 Oslo Accords between Israel and the PLO.
  • In Article IX (5) of the 1995 Israel-PLO Interim Agreement (Oslo 2), the parties agreed that the Palestinian Authority established by the agreement to administer the areas under its control will not have powers and responsibilities in the sphere of foreign relations. This includes permitting the establishment of foreign missions in the West Bank or the Gaza Strip, the appointment of or admission of diplomatic and consular staff and the exercise of diplomatic functions.
  • The same article of the agreement provides for the possible establishment of “representative offices” by foreign states in the area under the control of the Palestinian Authority, as a means of furthering and implementing economic, cultural agreements for the benefit of the Palestinian Authority.
  • Reopening a U.S. consulate in Jerusalem to serve the P.A. and its population would be totally incompatible with the Oslo Accords and would constitute an undermining of U.S. status as a witness to the accords.
  • Opening by the United States of such a representative office in Ramallah, Gaza or anywhere else in the territories under Palestinian governance would be in accordance with the peace-process documentation agreed to by Israel and the Palestinians and supported by the United States and others—and would not require Israel’s consent, inasmuch as Israeli law is not applied in those areas.

Only in this manner could the United States establish a mission to provide services to the P.A. and its population that would be compatible with, not undermine, U.S. policy and American international-law commitments and proclamations.

Alan Baker is director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan and Lebanon. He served as legal adviser and deputy director-general of Israel’s Foreign Ministry and as Israel’s ambassador to Canada.

This article was first published by the Jerusalem Center for Public Affairs.

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