• 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, nonetheless, it would 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 the Palestinian leadership’s statements. They 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. 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 U.S. Policy Regarding Jerusalem

• 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-nineteenth century Ottoman administration of the area and intended to serve Americans visiting the Holy Land.
• With the establishment of the Palestinian Authority by the 1993 Oslo Accords, 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 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.
• 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.

International Law Requires the Consent of the Sovereign to Open 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 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.
• Opening a U.S. consulate in Jerusalem to serve the Palestinians, without Israel’s prior consent and sanction, would be a flagrant breach of Article 4 of the 1963 Vienna Convention on Consular Relations.

U.S. and Palestinian Commitments Pursuant to the 1995 Israel-PLO Interim Agreement (Oslo 2)

• 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 economic, cultural, and implementation of other agreements for the benefit of the Palestinian Authority.
• Reopening a U.S. consulate in Jerusalem to serve the Palestinian Authority 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 Palestinian Authority and its population that would be compatible with U.S. policy, with American international law commitments, and that would not undermine U.S. commitments and proclamations.