The US 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 US.
The complexity and delicacy of the issue is being compounded by statements by the Palestinian leadership that in effect are turning the issue into a symbolic focal point in its claims to redivide Jerusalem and cancel the former administration’s recognition of Jerusalem as Israel’s capital city.
In addition to the US congressional commitments over the years endorsing Jerusalem’s status as Israel’s capital city, the following points of international law cannot be ignored:
The 2018 proclamation irrevocably changed US policy regarding Jerusalem
• The May 2018 proclamation by the US formally recognizing Jerusalem as the capital of Israel constituted a major change of US 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 US 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 nonrecognition, whereby the United States acknowledged the application of Israeli law in Jerusalem.
• The former situation had enabled the US, as well as some other states, to maintain independent consular missions, existing since the mid-19th century Ottoman administration of the area, intended to serve Americans visiting the Holy Land.
• With the establishment by the 1993-1995 Oslo Accords of the Palestinian Authority as an autonomous administration with powers and responsibilities in parts of the disputed territories, the independent and separate US Consulate in Jerusalem developed a new role of overseeing US 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.
• In acknowledging Israel’s sovereignty in Jerusalem, the 2018 proclamation irrevocably altered this situation and rendered the existence of an independent US consulate in Jerusalem serving the Palestinian administration and population of the territories as redundant and incompatible with US official policy.
International law requires the consent of the sovereign for the opening of a consulate on its territory
• 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 party.
• Article 4 of this convention determines that consular posts, or any other offices forming part of a consular post, may be established in the territory of the receiving state only 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.
US and Palestinian commitments pursuant to the 1995 Israel-PLO Interim Agreement (Oslo II)
• The US is one of the signatories as witness to the 1993-1995 Oslo Accords between Israel and the PLO.
• In Art. IX (5) of the 1995 Israel-PLO Interim Agreement (Oslo II), the parties agreed that the PA established by the agreement to administer the areas under its control will not have powers and responsibilities in the sphere of foreign relations, including 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 PA, as a means of furthering economic, cultural and other agreements for the benefit of the PA.
• Reopening a US consulate in Jerusalem to serve the PA and its population would be totally incompatible with the Oslo Accords and would constitute an undermining of US 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 US establish a mission to provide services to the PA and its population that would be compatible with US policy, with US international law commitments, and that would not undermine US commitments and proclamations.
The writer is director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He is a member of Mivtahi – Forum for a Safe Israel (FFSI). He served as the legal adviser and deputy director-general of the Foreign Ministry and was ambassador to Canada.