The reported intention by the American administration to reopen the U.S. consulate in Jerusalem has become a source of contention between Israel and the United States. Washington proposes a representative mission to the Palestinian Authority that will provide consular services to Palestinian residents of the disputed territories and eastern Jerusalem.
Israel has expressed strong opposition to the reopening of such a consulate to serve the Palestinians on sovereign Israeli territory.
Former U.S. President Donald Trump’s formal proclamation in 2018 recognized Jerusalem as Israel’s capital city and mandated the relocation of the U.S. embassy from Tel Aviv to Jerusalem. This constituted a sea change in U.S. policy, which previously didn’t recognize Israel’s sovereign status in Jerusalem.
Consulates in Jerusalem, providing consular services to visitors in the area and representing the United States and some European countries have existed since the days of the Ottoman administration of the Holy Land in the mid-19th century.
With the establishment of the State of Israel in 1948, and because the United States and other countries had never recognized Israel’s sovereign status in Jerusalem, the U.S. Jerusalem consulate remained as an independent mission, separate from the U.S. embassy to the State of Israel, located in Tel Aviv.
Following the 1991-93 Oslo Accords between Israel and the Palestinians, this independent U.S. Jerusalem consulate took on an additional function. It acted as a quasi-diplomatic representative mission vis-à-vis the P.A. and Palestinian residents of the area.
After the 2018 U.S. proclamation and the concomitant relocation of the embassy from Tel Aviv to Jerusalem, such functions were absorbed into a special wing of the newly located embassy. This move rendered the existence of a separate, independent consulate, redundant and incompatible with official U.S. policy.
The recognition of Jerusalem as Israel’s capital was based on the 1963 Vienna Convention on Consular Relations and the mutually accepted consular relationship between Israel and the United States. Both Israel and the United States are parties to the convention, Article 4 of which requires the consent of the receiving state to any opening of a consular post on its territory.1
Palestinian pressure on the United States
During a meeting of the Palestinian leadership in Ramallah on Oct. 24, 2021, P.A. leader Mahmoud Abbas demanded that the U.S. administration reopen the consulate in Jerusalem and the PLO offices in Washington, which were closed during the Trump administration.
Veteran Arab affairs and diplomatic commentator Yoni Ben Menachem reported in an article published by the Jerusalem Center on Nov. 4, 2021: “The P.A. is disappointed that the administration is delaying the reopening of the American consulate in Jerusalem and does not accept the claim that this requires the consent of the Israeli government. P.A. sources claim that according to the law and U.N. Resolution 181, Jerusalem is international territory, and the status of its diplomatic missions has not changed. Therefore, reopening the U.S. consulate in Jerusalem only requires the political will of the Biden administration.”2
The complexity and delicacy of the consulate issue are compounded by statements by Palestinian leaders representing the consulate issue as a symbolic focal point in their claims to re-divide Jerusalem and cancel the former administration’s recognition of Jerusalem as Israel’s capital city.
The Palestinian claim that U.N. General Assembly Resolution 181 rendered Jerusalem to be international territory has absolutely no basis in law and fact.
U.N. General Assembly Resolution 181
Resolution 181, commonly known as the U.N. Partition Plan, was approved on November 29, 1947, with 33 votes in favor, 13 against and 10 abstentions.3 It recommended the partition of Mandatory Palestine into Jewish and Arab entities. It devised a plan whereby Jerusalem would be a special international entity, called a corpus separatum, with an international administration under the auspices of the U.N.
As with all General Assembly resolutions, which cannot determine legal obligations, Resolution 181 was nothing more than a non-binding recommendation.
The recommendation to internationalize Jerusalem was devised as an interim measure for 10 years, after which its residents, through a referendum, would be free to express their wishes as to possible modification of the regime of the city.
While Israel accepted the plan in the hope that it would be modified after 10 years, it was vehemently rejected by the Arab population, as well as the neighboring Arab/Muslim states—Iran, Iraq, Lebanon, Pakistan, Saudi Arabia, Syria and Turkey, all of which opposed the resolution and forcefully and blatantly rejected it.4
On May 14, 1948, the U.N. General Assembly convened in special session to determine whether to assume formal responsibility for Jerusalem as the Partition Plan had recommended. However, the U.N. failed to adopt any proposal giving it the legal responsibility for Jerusalem that would enable it to become the effective successor to the British Mandate as the General Assembly had envisioned.
In Dec. 1949, Israeli Prime Minister David Ben-Gurion stated, “We cannot today regard the decision of 29 November 1947 as possessing any further moral force, since the United Nations did not succeed in implementing its own decision. In our view, the 29 November Resolution is null and void.”5
The Hashemite Kingdom of Jordan, in adamantly opposing any concept of internationalization, proclaimed that eastern Jerusalem had become a part of the kingdom and that any attempt to impose an international system and take away the city from the Arab state would be resisted by force.6
At the Fifth Session of the General Assembly, on Dec. 5, 1950, a draft resolution was proposed by Sweden for an International Regime for the Holy Places.7 The proposal failed to win a majority in the General Assembly’s Political Committee. A Belgian proposal, reiterating the idea of a corpus separatum, also failed to muster the necessary two-thirds majority in the Assembly.
In Dec. 1952, the Philippines proposed an amendment to a draft resolution calling for direct negotiations and specifically mentioning the principle of the internationalization of Jerusalem. The amendment was not accepted.8
The recommendations in Resolution 181 were ultimately overtaken by the events of 1948-9, including the bilateral Israel-Arab Armistice Agreements, which constituted binding bilateral treaties between Israel and its neighbors, having a greater value in international law than non-binding proposals of the U.N. General Assembly.
The 1949 armistice agreements were subsequently endorsed by the U.N. Security Council in Resolution 73 (1949), which “noted with satisfaction the several Armistice Agreements concluded by means of negotiations between the parties involved in the conflict in Palestine in pursuance of its Resolution 62 (1948) of 16 November 1948.”9
With the adoption of Resolution 73, the Security Council, the U.N.’s sole authoritative body, in effect confirmed the prioritization of post-war bilateral agreements. No reference was made by the Security Council to General Assembly Resolution 181.
International law and Israeli-Palestinian agreements
Following the U.S. recognition of Jerusalem as Israel’s capital, the relevant rules of international law governing bilateral consular relations, set out in the Vienna Convention on Consular Relations (1963), require that any opening of a consular mission on sovereign territory must receive the consent of the “receiving state”—in this case, Israel.10
The necessity for Israel’s consent is all the more pertinent in light of a worrying phenomenon that has developed in recent years. Palestinian governmental activity associates with internationally recognized terror organizations, in addition to the official Palestinian policy of transferring payments to incarcerated terrorists and their families (“pay for slay”). Clearly, no Israeli government could permit Palestinian organizations or individuals involved in such illegal activities to have access to consular assistance and services.
In Article IV (5) of the 1995 Israeli-Palestinian Interim Agreement (“Oslo II”), to which the United States is signatory as a witness, Israel and the PLO agreed that the P.A., established by the agreement in order to administer the areas under Palestinian control, would not have powers and responsibilities in the field of foreign relations: “In accordance with the Declaration of Principles, the Council will not have powers and responsibilities in the sphere of foreign relations, which sphere includes the establishment abroad of embassies, consulates or other types of foreign missions and posts or permitting their establishment in the West Bank or the Gaza Strip, the appointment of or admission of diplomatic and consular staff and the exercise of diplomatic functions.”
However, the same article enables the opening of “representative offices” by foreign states in the areas governed by the P.A., not for consular or diplomatic services, but to advance economic, cultural and regional development, as well as other assistance projects for the benefit of the Palestinians.11
Such offices do not require Israel’s consent.
Since General Assembly Resolution 181, a non-binding recommendation, was neither accepted nor implemented, Jerusalem has never been determined to be international territory.
Accordingly, there is absolutely no legal basis to the claim by the Palestinian leadership that “Jerusalem is international territory and the status of its diplomatic missions has not changed.”
4 Statement by the Arab Higher Committee, Nov. 29, 1947. See GAOR, 2nd Sess., 1947, AdHoc Committee on the Palestine Question, pp. 5-11. See also M. Cheriif Bassiouni, Documents of the Arab-Israeli Conflict (New York, 2005), vol. 1, p. 20. See also the formal Arab League declaration on their intention to invade Palestine at http://www. mfa.gov.il/MFA/Foreign+Relations/Israels+Foreign+Relations+since+1947/1947-1974/5+Arab +League+declaration+on+the+invasion+of+Pales.htm
5 Knesset Records, Vol. 4 (2nd Session) pp 81-2
6 N. Bentwich “Israel Resurgent” pp 186-7
7 Draft Resolution Concerning an International Regime for the Holy Places, Proposed by Sweden, A/ AC.38/L63, Dec. 5, 1950, see http://www.mfa.gov.il/MFA/Foreign+Relations/Israels+Foreign +Relations+since+1947/1947-1974/9+Draft+Resolution+Concerning+an+International+Reg.htm
8 For a detailed analysis of all U.N. resolutions regarding proposals to internationalize Jerusalem, see “Alan Baker “Is Jerusalem Really Negotiable?” 2013 JCPA https://jcpa.org/article/is-jerusalem-really-negotiable-an-analysis-of-jerusalems-place-in-the-peace-process/
Amb. Alan Baker is director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs 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 Ministry of Foreign Affairs and as Israel’s ambassador to Canada.
Lea Bilke is a law student at the Free University of Berlin in Germany, specializing in international and European law.
This article was first published by the Jerusalem Center for Public Affairs.