Sovereign or Satellite?

By Victor Rosenthal

The Biden Administration has made it clear that it intends to reopen its consulate in eastern Jerusalem. The consulate, which in the past served as the unofficial US Embassy to the Palestinian Authority (PA), was closed by President Trump when the embassy to Israel was moved to Jerusalem.

The main function of a consulate is to provide services to residents of the country in which it is located and to citizens of the home country, such as issuing visas, renewing passports, and so on. An embassy, on the other hand, is the official representation of one country to another, contains the office of the ambassador, and is responsible for negotiations between countries (here is a comparison between a consulate and an embassy).

In all but exceptional cases, embassies are located in the capital of a country, and constitute recognition of the capital’s status by the home country. This, of course, is why Trump’s moving the US Embassy to Jerusalem from Tel Aviv was such a big deal: it was the concrete manifestation of the 1995 decision by the US Congress to recognize that Jerusalem is the capital of the State of Israel.

It is customary to provide consular services in the host country’s capital at the embassy. Consulates are established in other places for convenience. For example, Israel’s embassy to the US is in Washington, but she has consulates in nine other cities. As far as I know, no country in the world has a separate consulate in addition to its embassy in the capital of another country. When the American Embassy was located in Tel Aviv, it was reasonable for there to be a consulate in Jerusalem to provide services in the area; and it also served unofficially as a conduit to the PA. But when the US embassy moved to Jerusalem, there was no justification for a consulate there as well, and so it was closed.

Both PM Naftali Bennett and Foreign Minister Yair Lapid have publicly expressed their strong opposition to the reopening of the consulate, and say that they made it clear to American officials, including Secretary of State Antony Blinken. Opening a diplomatic mission to the PA in Jerusalem sends a message that the administration views Jerusalem as the PA “capital.” And this interpretation is shared by the PA, as Itamar Marcus of Palestinian Media Watch notes:

Palestinian Authority Prime Minister Mohammad Shtayyeh stated that the move is “important” for Palestinians because “the message from this [Biden] administration is that Jerusalem is not one [united Israeli] city and that the American administration does not recognize the annexation of Arab Jerusalem by the Israeli side. We want the American Consulate to constitute the seed of a US embassy in the State of Palestine.” [Facebook page, PA PM Muhammad Shtayyeh, Sept. 14, 2021]

Knesset Member and former Jerusalem Mayor Nir Barkat noted that “[t]here is no other capital where America has a consulate and embassy serving two nations. It would be tantamount to dividing Jerusalem.” In opposition, the Biden Administration wants to promote a version of the “two-state solution” in which Jerusalem would be divided, with the eastern part becoming the capital of “Palestine.”

The official Israeli position is that Jerusalem is only the capital of Israel and no other state, and must not be re-divided, as it was prior to 1967. If the US wants an embassy to the PA, it should be in Ramallah, where the PA has its seat.

The rules that govern the establishment of consulates and their functions are found in the Vienna Convention on Consular Relations, to which almost every country in the world is a party, and which constitutes binding international law. Article 4 states that the consent of the host country is required for the establishment of a consulate, or any change in its location or status. A unilateral act to reopen the consulate would therefore be a breach of international law.

It would also arguably violate American law. The Jerusalem Embassy act of 1995 – which was finally implemented in 2018 by President Trump after decades of inaction by three US presidents – states that it is US policy that “… Jerusalem should remain an undivided city in which the rights of every ethnic and religious group are protected [and] Jerusalem should be recognized as the capital of the State of Israel…”

There is a report in Israeli media that Foreign Minister Lapid – although he categorically denies it – promised American Secretary of State Blinken that the US could reopen the consulate. He supposedly received a promise in return that the US would wait until after the somewhat shaky Israeli government had passed its budget. There is a law that a government must pass a budget by 4 November, or it will be automatically dissolved, so its members want to avoid anything potentially destabilizing until then. The report also says that the Americans were “surprised” and “disappointed” when officials representing PM Bennett told them that the government was opposed to the reopening at any time. Blinken indicated that he intended to move forward with the plan.

Public opinion in Israel is strongly opposed to allowing it to happen. I am relatively sure that if the government announced that it had given permission to the US to establish an “Embassy to Palestine” in our capital, that would be the end of that government, before or after the passage of the budget. New elections would shortly follow. But on the other hand, I doubt that the Biden Administration is prepared to blatantly violate international law by doing it in the face of Israeli refusal to grant permission.

So what I expect to happen is that the US will ratchet up pressure on Lapid and Bennett. If they give in, they will try to suggest that it was a unilateral American decision; the Americans will say as little as possible, in order not to embarrass their puppets in Jerusalem. But if Lapid and Bennett continue to stand firm, and both publicly and privately insist that they will not allow this to happen, then I think the Americans will back down, or at least put the idea on the back burner and hope for a more compliant Israeli government the next time.

Sovereign or satellite? We’ll find out in the next month or so.