Jerusalem: Legislation to Move the U.S. Embassy

Jerusalem: Legislation to Move the U.S. Embassy

98-360 F
April 13, 1998
CRS Report for Congress
Received through the CRS Web
Jerusalem: Legislation to Move the U.S. Embassy
Clyde Mark
Specialist in Middle Eastern Affairs
Foreign Affairs and National Defense Division
Summary
The U.S. embassy in Israel is in Tel Aviv. Israel claims Jerusalem is its capital.
Many Members of Congress want the United States to move its embassy to Jerusalem.
The CRS short report describes recent legislation affecting the embassy move, including
P.L. 104-45 that compels the President to establish an embassy in Jerusalem by the end
of May 1999. The Administration opposes moving the embassy until Palestinian and
Israeli negotiators have an agreement on the final disposition of the city. The report will
be updated as warranted. Related CRS products include CRS Report 94-755F,
Jerusalem, and CRS Issue Brief 91137, The Middle East Peace Talks.
Background
Because Jews, Christians, and Muslims held (and continue to hold) Jerusalem sacred,
the United Nations General Assembly recommended, in Resolution 181 of November 27,
1947, that Jerusalem be internationalized under a “corpus separatum” rather than being
allocated to either the Jewish or Arab states to be created in Palestine. The United States
and most nations accepted an internationalized Jerusalem as the best way to resolve the
conflict over the city’s political future. The United Nations drafted a Statute for
Jerusalem in April 1948, and passed resolutions 194 of December 1948 and 303 of
December 1949 reconfirming the U.N. recommendation for an internationalized
Jerusalem. But, as a result of the 1948-1949 war in which Israel seized the western
portion of the city and Jordan seized the eastern portion, most governments, the United
States among them, recognized that the Arabs and Israelis had created claims to the city
or parts of it that superseded the United Nations internationalization scheme. Only
Pakistan and the United Kingdom recognized Jordan’s 1950 annexation of the West Bank
(including east Jerusalem) and no government recognized Israel’s 1950 claim that west
Jerusalem was its capital or Israel’s annexation of eastern Jerusalem following the 1967
war. Only two countries, Costa Rica and El Salvador, have their embassies to Israel in
Jerusalem.
Congressional Research Service ˜ The Library of Congress

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Jerusalem is listed as one of the issues to be discussed in the final status peace talks
that began in May 1996, but were delayed by the Israeli elections and political
uncertainties of the time, and have not resumed. Israel claims that Jerusalem will not be
redivided, as it was between 1948 and 1967, and that undivided Jerusalem is its capital.
The Palestinian Arabs want Israel to withdraw from east Jerusalem, the area seized from
Jordan in 1967, so that east Jerusalem can become the capital of an independent
Palestinian state.
United States Policy Toward Jerusalem
The United States has changed its policy toward Jerusalem as events changed the
status of the city. The United States voted for U.N. Resolution 181 of 1947 that called for
the creation of the corpus separatum, voted for Resolutions 194 on December 11, 1948,
that repeated the call for a corpus separatum, but altered policy to vote against Resolution
303 on December 9, 1949, because the United States recognized that Israel and Jordan
had created, through their occupation of parts of the city, a political presence in Jerusalem.
Technically, the United States had supported an international Jerusalem, but as a practical
matter, the United States, along with many other governments, recognized both Israeli
and Arab claims to a political role in the city. The United States opposed Israel’s 1948
claim of sovereignty over the western portion of the city, Israel’s 1950 declaration that
Jerusalem was its capital, Jordan’s 1950 annexation of east Jerusalem, and Israel’s 1967
annexation of east Jerusalem. Since 1967, successive U.S. Administrations have
maintained that east Jerusalem is part of the West Bank occupied territories, that the
future of Jerusalem should be a subject of Israeli-Arab negotiations, that the city’s fate not
be decided by unilateral actions, and that the city should remain united.
In 1994, some observers interpreted a U.S. vote at the United Nations as signaling
a change in U.S. policy toward Jerusalem that moved Washington somewhat closer to
Israel’s view of Jerusalem. On March 18, 1994, the United States abstained on a U.N.
Security Council vote concerning the Middle East because the draft resolution called the
occupied territories the “occupied Palestinian territories,” a phrase that could be
interpreted, in the U.S. view, as implying sovereignty. The United States also objected
to the resolution listing Jerusalem as occupied territory subject to the Fourth Geneva
Convention of 1949 . U.S. Ambassador Albright reaffirmed that the United States hel
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the view that the Fourth Geneva Convention applied to Jerusalem, but opposed specifying
Jerusalem in the resolution.
United States actions in March 1997 prompted more scrutiny of U.S. policy toward
Jerusalem. On March 7, 1997, the United States vetoed a Security Council resolution
condemning the Israeli settlement at Abu Ghanaym/Har Homa, east Jerusalem, because,
The
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Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August
12, 1949. TIAS 3365. 6 UST 3517. Most observers believe Israeli settlements in Jerusalem and
the other occupied territories are illegal under Paragraph six of Article 49, which states that the
occupying power, in this case Israel, shall not deport or transfer its civilian population into the
occupied territories. Israel maintains that it is not an occupying power because the West Bank
and Gaza were not the sovereign territory of another country prior to the June 1967 Israeli
occupation. Jordan claimed sovereignty over the West Bank and Jerusalem, but only Pakistan and
the United Kingdom recognized the Jordanian claim. No nation claimed sovereignty over the
Gaza Strip, although Egypt administered the territory between 1948 and 1967.

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in the words of U.S. Ambassador Richardson, the resolution could impede the peace
process. Proponents of the resolution moved to the General Assembly, where a similar
resolution passed by a vote of 130 to 2 (Israel, the United States) with 2 abstentions on
March 13, 1997. On March 21, 1997, the United States vetoed another Security Council
resolution demanding that Israel stop the settlement construction because, in the U.S.
view, the resolution might interfere with the peace process.
Congressional Action
In addition to numerous congratulatory resolutions commemorating the founding of
Jerusalem, Israel’s unification of the city in 1967, Israel’s annexation of east Jerusalem,
and resolutions of condolence following terror incidents in the city, Congress has passed
legislation that acknowledges Jerusalem as Israel’s capital, calls for the continued
unification of the city, and voices the opinion that the U.S. embassy to Israel be moved
from Tel Aviv to Jerusalem. For example, H. Con. Res 290, passed by the House of
Representatives on April 24, 1990, and S. Con. Res 106, passed by the Senate on March
22, 1990, stated that “. . . Congress acknowledges that Jerusalem is and should remain the
capital of the State of Israel.”
In 1986, when Members of the House, Senate, and the Administration could not
agree on the legislative language, location, or timing of moving the embassy from Tel
Aviv to Jerusalem, they compromised by prohibiting construction of an embassy. Section
414 of the Omnibus Diplomatic Security and Antiterrorism Act of 1986,2 states that no
funds may be obligated for site acquisition, development, or construction of a U.S.
embassy in Israel, Jerusalem, or the West Bank. In 1987, Section 130 of the Foreign
Relations Authorization Act, Fiscal Years 1988 and 1989,3 repeated Section 414. In 1988,
the Senate and the Administration still failed to agree, and accepted a compromise that
reversed the “no embassy” ruling in Sections 414 and 130. Section 305 of the
Departments of Commerce, Justice, and State, and the Judiciary and Related Agencies
Appropriations Act of 1989, overrode Sections 414 and
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130, and stated that two facilities
were to be built simultaneously, one in Jerusalem or the West Bank and one in Tel Aviv,
either of which could be used as an embassy. Congress did not authorize or appropriate
funds for the two facilities.
Identical bills introduced in 1995, S. 770 and H.R. 1595, called for the United States
to recognize Jerusalem as Israel’s capital, and to move the U.S. embassy to Jerusalem by
May 31, 1999. The bills provided funding for site surveys and construction costs of
building a new embassy. Congress passed a similar bill, S. 1322, and sent it to the
President, but President Clinton sent the bill to the Archives unsigned; the bill became
law after ten days on November 8, 1995, P.L. 104-45.
A Summary of P.L. 104-45
2P.L. 99-399 (H.R. 4151)August 27, 1986. 100 Stat.868, 22 USC 4862
3P.L. 100-204 (H.R. 1777) December 22, 1987. 101 Stat.1344.
4P.L. 100-459 (H.R. 4782) October 1, 1988. 102 Stat. 2208.

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Section 3 of P.L. 104-45 states that U.S. policy should recognize that Jerusalem is
the undivided capital of Israel, and that the U.S. Embassy in Israel should be established
in Jerusalem no later than May 31, 1999. Section 3(b) states that funding for the State
Department’s building acquisition and maintenance account will be cut in half in FY1999
if the United States has not opened an embassy in Jerusalem by that time. Section 4
authorizes $25 million in FY 1996 and $75 million in FY 1997 for construction of an
embassy in Jerusalem. Section 5 requires the Secretary of State to report to the Congress
on a plan to open an embassy in Jerusalem. Section 6 calls for semi-annual reports to the
Congress on progress in implementing the law. Section 7 grants the President the
authority, beginning on October 1, 1998, to waive the funding block in Section 3(b) for
six months if the President determines that the waiver is necessary to protect the national
security interests of the United States. The waiver may be extended once for an additional
for six months.
Congress and the Executive Branch: Differing Opinions on Authority
over the Embassy
The United States has not recognized Jordan’s or Israel’s unilateral action in
claiming part or all of Jerusalem, and accepts the contention that the future of Jerusalem
should be negotiated among the interested parties. Israel and the Palestinians agreed to
negotiate the status of Jerusalem. It has been the position of the current and previous
Presidents that the United States should not consider moving the embassy to Jerusalem
until the Palestinians and the Israelis have completed their negotiations and have reached
an agreement on the future status of the city. Moving the U.S. embassy from Tel Aviv
to Jerusalem before those negotiations are completed might diminish the U.S. role as a
neutral broker in the peace process, and might support Israel’s claim to all of the city and
cause the Arab/Muslim side to end negotiations. Some Members of Congress apparently
want to support Israel’s claim to Jerusalem despite possible Arab or Muslim reaction.
Moving the embassy might be seen as a way to help guarantee that Israel will keep control
over the whole city.
Although not in the forefront of the current debate, there is recurring Constitutional
argument as well. Traditionally, the executive branch has maintained that the Constitution
gives the President the authority to formulate and implement foreign policy, and that the
location and operation of embassies are foreign policy issues under the President’s
purview. The President acknowledges that the Palestinians and Israelis have agreed to
negotiate the status of Jerusalem, and the President has made a foreign policy decision
that the United States should avoid taking actions that might predetermine the outcome
of those negotiations. Also, some Constitutional authorities have speculated that the
Congress does not have the Constitutional authority to compel the President to change his
foreign policy. Traditionally, Congress has maintained that the Constitution gives
Congress a role in setting and implementing foreign policy (consent to treaties, approve
ambassadors) and that the exercise of that role, along with the congressional control over
the purse strings, compels the President to cooperate with Congress. The Constitution
gives Congress the authority to pass legislation and directs the President to implement the
law. Congress has passed a law that the embassy be established in Jerusalem and the
President is bound to enforce the law. Obviously, the President cannot build an embassy
without Congress authorizing and appropriating the funds, but a President may argue that
Congress cannot compel a President to build an embassy. It is not likely that the

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argument between the President and the Congress over their respective roles in foreign
policy will be resolved soon.
Problems in Moving the U.S. Embassy From Tel Aviv to Jerusalem
The Clinton Administration, similar to previous Administrations, maintains that
there are several reasons why it may be difficult to establish an embassy in Jerusalem as
required in P.L. 104-45.
Diplomatic. The United States recognizes that there are competing claims to the city,
political claims among Israel and the Palestinians, and perhaps Jordan, and religious
claims among Jews, Muslims and Christians. The United States maintains the position
that the future status of Jerusalem must be the subject of negotiations among the
interested parties, and that unilateral actions by any government that might predetermine
the future of the holy city are unacceptable. In keeping with that policy, the United States
opposed Jordanian and Israeli actions regarding Jerusalem. Successive U.S.
Administrations have maintained that moving the embassy from Tel Aviv to Jerusalem
would support Israel’s claim to all of the city and would undermine the negotiations
intended to resolve the future of the city.
Time. The Department of State estimates that construction of an embassy will take
a minimum of 6 years and a maximum of 10 years from first steps (architect/engineering
drawings, soil testing, preliminary planning) through all the stages to the final finishing
and occupancy. P.L. 104-45 became law on November 8, 1995, and called for the U.S.
embassy to be relocated to Jerusalem by May 31, 1999, three and one half years later, too
short a period to construct an embassy. With construction of a new embassy an unlikely
prospect, the Department of State was left with the options of buying or leasing an
existing facility, exchanging the present facility in Tel Aviv for an existing facility in
Jerusalem, or converting the existing Jerusalem consulate into an embassy. The time
allowed for the relocation might not allow for extensive renovations to an existing facility
(the primary renovations needed would be security related). According to the semi-annual
reports to Congress, the Department of State has been investigating the availability of
property, both for purchase and for rent, that might serve as an embassy, and that a move
could be accomplished “quickly” (within one year ?).
Land. More than 90% of the land in Israel, including land in western Jerusalem, is
owned by the state or by the Jewish National Fund, a charitable institution that holds land
in perpetuity for the benefit of the Jewish people. Consequently, none of the
Government-owned or JNF-owned land may be sold, only leased. The United States and
Israel signed an agreement on 18 January 1989, providing for an exchange of the present
site of the U.S. embassy in Tel Aviv for another site in Tel Aviv suitable for a U.S.
diplomatic building, and for a 99-year renewable lease at one dollar per year for a site in
west Jerusalem called the Allenby Tract. The United States could build a diplomatic
facility, either an embassy or a consulate, on the 7.75-acre Allenby Tract. Israel offered
the United States a Tel Aviv property to be exchanged for the present embassy site, but
the United States rejected the new site because of security flaws. Israel has not offered a
replacement.
Security. One set of problems faced by the United States in selecting an embassy site
is the security of the building and its occupants. According to the Department of State,

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the Allenby tract offered by Israel in southeast Jerusalem poses such problems. Although
the Department will not discuss publicly the specific nature of the problems, one problem
appears to be the construction or location of nearby structures that overlook the Allenby
tract, thereby posing a potential security threat to an embassy built there.
Conflicting Claims. Palestinians claim that the Allenby Tract is “Waqf” land; that
is, land donated to a religious trust for the benefit of all Muslims. The Palestinians claim
that Israel had no right to lease the land to the United States for an embassy. Department
of State spokesmen say that they do not believe the Waqf claim has merit, but recognize
that there is a conflicting and as yet unresolved claim to the land.
Jerusalem Under Israeli Occupation