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A U.S. consulate for the Palestinians should be on Palestinian territory – not in Jerusalem

By Amb. Alan Baker
web posted July 19, 2021

On May 25, 2021, Secretary of State Antony Blinken met in Ramallah with PLO leader Mahmoud Abbas, as part of a series of measures intended to “engage with and provide support for the Palestinian people.” Blinken announced the intention of the U.S. administration to reopen the former U.S. Consulate-General in Jerusalem.

The former consulate had served as a quasi-diplomatic mission to the Palestinian leadership and served Palestinian residents of east Jerusalem, the West Bank areas of Judea and Samaria, and the Gaza Strip. The consulate was merged in 2019 with the new U.S. embassy, which opened in Jerusalem following the U.S. recognition of Jerusalem as Israel’s capital.

The Secretary of State’s declared intention to reopen the former consulate general raises complex legal and political questions that require due consideration.

Historic Background

The U.S. consular mission in Jerusalem was originally established with the encouragement of American Christian Zionists in 1844 when Jerusalem was still part of the Ottoman Empire. Its function was to provide “humanitarian and legal assistance to Americans in the Holy Land and to protect minorities against discriminatory Ottoman practices.” The American consulate afforded consular services to Christian missionaries and Jews in the Holy Land.

With the impending termination of the British mandate over Palestine in 1947, the U.S. Truman administration supported a “Partition Plan” recommended by the UN General Assembly in its November 29, 1947 resolution 181(III) entitled “Future Government of Palestine,” as a means of internationalizing Jerusalem. The plan recommended the establishment of two states, an Arab and Jewish state, with a separate international status for Jerusalem.

While this recommendation was accepted by Israel, whose statehood was declared in May 1948, Israel’s neighboring Arab states rejected it and proceeded to invade Israel in what became known as Israel’s “War of Independence.”

During the course of this war, east and west Jerusalem came under the control of Jordanian and Israeli forces, respectively. Israel subsequently declared Jerusalem to be Israel’s “eternal, and only capital,” soon moved its seat of government from Tel Aviv to Jerusalem in 1950.

While the United States and other countries formally recognized Israel as a sovereign state, they refrained from recognizing Israel’s sovereignty over any part of Jerusalem, pursuant to their policy of supporting the idea of internationalizing the city. They chose to locate their embassies in Tel Aviv, and some states chose to maintain their historic Jerusalem consulates as separate consular missions to deal with residents of Jerusalem and Palestinians.

In this context, the U.S. Jerusalem consulate remained completely independent of the U.S. Israel embassy, reporting directly to the U.S. State Department, as if it was representative to another political entity.

1967 Reunification of Jerusalem

With Israel’s reunification of Jerusalem and extension of Israel’s laws to eastern Jerusalem following the 1967 “Six Day War,” the United States, in several UN declarations and other statements, maintained its refusal to recognize Israel’s sovereignty over any part of Jerusalem – east and west – preferring to await a negotiated solution to the issue of Jerusalem.

1978 Camp David and 1993 Oslo Accords

This position remained consistent by various U.S. administrations during the course of peace process negotiations between Israel and its neighbors, including the Palestinians, both following the 1978 Camp David Accords and the 1993-5 Oslo Accords.

In his September 17, 1978 letter to Egyptian President Anwar al-Sadat accompanying the signing of the Camp David Accords, U.S. President Jimmy Carter reaffirmed that “…the position of the United States on Jerusalem remains as stated by Ambassador Goldberg in the United Nations General Assembly on July 14, 1967, and subsequently by Ambassador Yost in the United Nations Security Council on July 1, 1969.”

In the 1993-9 Oslo Accords and their related documents, Israel and the PLO, with the active support of the Clinton administration, agreed that the issue of Jerusalem would be part of the negotiation on the permanent status of the territories.

U.S. Consular and Political Relationship with the Palestinian Authority

In light of the creation by the Accords of the Palestinian Authority as an autonomous administration with powers and responsibilities in parts of the territories, and despite the fact that the Oslo Accords did not provide for any Palestinian functions in Jerusalem, the independent and separate U.S. consulate in Jerusalem developed a new role of overseeing U.S. relations with this Palestinian political entity as well as with Palestinian residents of east Jerusalem, the west bank areas of Judea and Samaria, and the Gaza Strip.

The U.S. Jerusalem consulate thereby became the de facto representative of the United States vis-à-vis the Palestinian Authority and Palestinian residents of east Jerusalem and the territories, and its staff became a central channel of communication with Palestinian officials.

Israel’s Position vis-à-vis the U.S. Jerusalem Consulate

Given the solid historical relationship between Israel and the United States, the principled and long-maintained official U.S. policy of non-recognition of Israel’s sovereignty and legal status over any part of Jerusalem, and the ongoing and active functioning of the consulate as the de-facto U.S. representation to the Palestinians, Israel was, to all intents and purposes, stopped from demanding any formal or legal change in the situation.

To the contrary, Israel had no choice but to permit this situation to continue. Israel’s foreign ministry even granted the consulate and its staff, on a de facto and pragmatic basis, symbolic consular privileges and immunities.

However, this legal and factual situation of non-recognition ended with the formal U.S. declaration by President Trump recognizing Jerusalem as the capital of Israel and the relocation of the U.S. embassy from Tel Aviv to Jerusalem.

Change in Legal Status

In his December 6, 2017, official declaration, President Trump proclaimed Jerusalem to be the Capital of Israel and instructed the State Department to relocate the U.S. Embassy from Tel Aviv to Jerusalem.

In so doing, he recognized that the specific boundaries of Israeli sovereignty in Jerusalem are subject to final status negotiations between the parties. Trump declared,

This decision is not intended, in any way, to reflect a departure from our strong commitment to facilitate a lasting peace agreement. We want an agreement that is a great deal for the Israelis and a great deal for the Palestinians. We are not taking a position of any final status issues, including the specific boundaries of the Israeli sovereignty in Jerusalem, or the resolution of contested borders. Those questions are up to the parties involved.

With the opening of the new embassy in Jerusalem on May 14, 2018, the functions of the old consulate vis-à-vis Palestinian residents of Jerusalem and the area were combined within the newly located U.S. embassy in Jerusalem under a new “Palestinian Affairs Unit” formed under the larger umbrella of U.S. relations to Israel.

This change in status of the former consulate was seen by the Palestinian leadership, and many U.S. Foreign Service officers who had served in the consulate, as a controversial move and a downgrade of U.S.-Palestinian relations, leading to a boycott by the Palestinian leadership of the new unit.

Implications of U.S. Recognition of Israel’s Sovereignty in Jerusalem

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 Israel law in Jerusalem.

As such, a 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 party. Article 4 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.

Clearly, reopening the former consulate in Jerusalem, the jurisdiction of which would be intended to cover relations with the Palestinian leadership, Palestinian governmental bodies, and Palestinian residents of the territories, none of which are subject to Israel’s sovereignty, would be politically and legally problematic in light of the new situation since 2017 of formal acceptance by the United States of Israel’s sovereignty in Jerusalem and the application of Israeli law in the city.

Possible Solution

A document entitled “The U.S.-Palestinian Reset and the Path Forward,” prepared for the incoming Biden administration under the direction of Deputy Assistant Secretary of State for Near Eastern Affairs Hady Amr and published by The National newspaper of the United Arab Emirates on March 17, 2021, sets out proposals for a new approach to relations with the Palestinians. It raises the “idea of reopening a U.S. mission in the Palestinian territories to signal a commitment to the two-state solution.”

Such a proposition by Amr to open a U.S. mission in the territories would indeed appear to be compatible with the provisions of the 1995 Israel-PLO Interim Agreement, witnessed and endorsed by U.S. President Clinton together with other world leaders (commonly termed “Oslo 2”).

Article IX, paragraph 5(c) of the agreement provides for the establishment of “representative offices” by foreign states in the area under the authority of the Palestinian Authority, as a means of furthering economic, cultural, and implementation and other agreements, for the benefit of the Palestinian Authority.

Opening by the United States of such a representative office in Ramallah, or anywhere else in the territories under Palestinian governance, would be in accordance with the agreed peace process documentation agreed to by Israel and the Palestinians and supported by the United States, and would not require Israel’s consent, inasmuch as Israeli law is not applied in those areas. ESR

Amb. 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 Ministry of Foreign Affairs and as Israel’s ambassador to Canada.

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