Capital Concern: What a US Palestinian Consulate Says about Control of Jerusalem

January 12, 2022

by: Joshua Spurlock, The Mideast Update

For millennia, Jerusalem has been the capital of Israel—it just wasn’t always recognized as such by other nations. On December 6, 2017, the United States dramatically changed its approach by formally recognizing Jerusalem as the capital of the State of Israel. Just over four years later, the Palestinians are hoping a new president in the White House will undo that historic move.

The means for that revision appear innocuous—reopening a US consulate office in Jerusalem to serve Palestinians. So would a building make such a dramatic statement about who owns Jerusalem? And if the US wants to do this—and US Secretary of State Anthony Blinken told Israel as much in 2021—what can Israel do about it?

It turns out the answer to both questions is the same: a lot.

The Significance

Former US President Donald Trump’s decision to recognize Jerusalem as Israel’s capital and move the US embassy there from Tel Aviv wasn’t a new idea. The US had technically passed a law in 1995 laying out the change. However, that law had a loophole used by every US President until Trump: the embassy move could be delayed for security concerns. It turns out that those concerns were unfounded, and it wasn’t the only loophole in play. President Trump effectively threaded the needle in international law by recognizing Jerusalem as Israel’s capital. At the same time, restating the final borders of the capital would be decided in the future by Israel and the Palestinians, according to former Israeli Ambassador to Canada and international law expert Alan Baker.

“[The final status of Jerusalem] will be on the negotiating table,” said Baker. “But in the meantime, the fact that Jerusalem is the capital of Israel, this is not a negotiating issue…[Others, including the US] can’t unilaterally determine what needs to be agreed upon.”

Ambassador Baker, director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs and the head of the Global Law Forum, said the US recognition of Jerusalem as Israel’s capital had “nothing to do” with a final peace agreement. “[The outcome of talks] is without prejudice to the fact that the US formally, officially acknowledged the fact that Jerusalem is a sovereign part of Israel.”

That decision had significant ramifications, as it gives Israel a stronger starting point on negotiations with the Palestinians. From the US viewpoint, Jerusalem was settled as Israel’s capital, while the exact borders of Jerusalem are left to be negotiated. The decision also formalizes US recognition of Israel’s legal sovereignty over Jerusalem.

However, setting up a separate consulate in Jerusalem to serve Palestinians and dividing the US diplomatic presence in the city would effectively undo the legal achievements for Israel. “What the Palestinians are trying to do is basically bring about the cancelation of the US proclamation,” said Baker. “They want to redivide Jerusalem, basically. They want some US acknowledgment that part of Jerusalem is potentially Palestinian.” Thankfully for the Jewish state, Israel legally has the final say.

The Legality

Regardless of what the US wants to do regarding reopening a consulate to the Palestinians in Jerusalem, it is constrained by international law, according to Baker. “As soon as they recognized the fact that Israel had sovereignty over Jerusalem, that Israeli law applies in Jerusalem, then they can’t now open a consulate against Israel’s consent,” said Baker, noting that according to the Vienna Convention on Consular Relations, “a country can only open a diplomatic consular mission with the consent of the receiving state…and Israel won’t give consent to the US opening a consular mission to a third entity, which basically is a Palestinian entity.”

So why is the issue still controversial? In his JCPA article on the topic, “Refuting Palestinian Claims about the US Jerusalem Consulate,” Ambassador Baker notes the Palestinians have tried to argue that the United Nations designated Jerusalem’s status as international territory with the Partition Plan in 1948, and therefore the Israelis have no current claim. But Baker wrote that the UN resolution is merely a nonbinding recommendation, and in his comments to the Mideast Update, he dismissed the argument by noting that the Oslo Accords say the ultimate status of Jerusalem can only be determined by negotiation. He said the Trump declaration differed from addressing final status by just recognizing the preexisting fact of Jerusalem as Israel’s capital, while also noting borders remain open to negotiation.

Furthermore, US congressional legislation requires recognition of Jerusalem as Israel’s capital, and the Oslo Accords, signed by the US, prohibit anyone from opening a consulate-level diplomatic mission to the Palestinians on territory controlled by the Palestinians. In other words, the US is not only restricted from setting up a consulate in Israeli territory in Jerusalem; it is limited to opening a representative office even in other land under the authority of the Palestinians. This would permit the US to open such an office in the outskirts of Jerusalem, but that’s all for now.

The Response

Ambassador Baker noted the US could offer an incentive for Israel to permit a Palestinian-focused consulate in Jerusalem, but that not “even the most left-wing Israeli government” would ever agree “because the implication would be acknowledging the redivision of Jerusalem.” Nonetheless, Baker said it’s “difficult to say that the issue is settled, as long as this still remains some type of intention of the Biden administration.” But that doesn’t change what Baker expects to happen.

“I don’t even raise any possibility of this being undone. The proclamation recognizing Israel’s sovereignty over Jerusalem after 70 years isn’t something that in my view could be undone by a US administration. They can undo all sorts of other things, the agreement with Iran to renegotiate it, but this particular issue of Jerusalem, I can’t see them undoing it,” he said. “…Congressional legislation, international law regarding consular relations, and the Israeli–Palestinian agreements in the Oslo Accords—which the Americans are signatory to—these are three very important elements that would prevent the US from violating them.”

So what’s a building worth to the symbolism built into international law? Apparently, a lot. And what does that US embassy—and the declaration that set it in place—mean for Israeli sovereignty over Jerusalem? Apparently, just as much.

Photo Credit: Magister/commons.wikimedia.org