Jerusalem: The U.S. Embassy and P.L. 104-45

Jerusalem: The U.S. Embassy and P.L. 104-45

Order Code RS20339
September 22, 1999
CRS Report for Congress
Received through the CRS Web
Jerusalem: The U.S. Embassy and P.L. 104-45
Clyde Mark
Specialist in Middle Eastern Affairs
Foreign Affairs, Defense, and Trade Division
Summary
Section 3(a) of P.L. 104-45 of November 8, 1995, states that it is the policy of the
United States that the U.S. embassy in Israel should be moved from Tel Aviv to
Jerusalem by May 31, 1999. Section 3(b) bans the expenditure of 50% of the State
Department’s FY1999 appropriation for “Acquisition and Maintenance of Buildings
Abroad” until the Secretary of State notifies Congress that the U.S. embassy has opened
in Jerusalem. Section 7 authorizes the President to waive Section 3(b) for two 6-month
periods if such a waiver is necessary for national security interests. The President
exercised the waiver on June 18, 1999, and the embassy remains in Tel Aviv. This report
will be updated as needed.
Status of the U.S. Embassy in Israel
Public Law 104-45, effective November 8, 1995, states that it is the policy of the
United States that the U.S. embassy to Israel should be moved from Tel Aviv to Jerusalem
by May 31, 1999. To date, the United States embassy in Israel remains in Tel Aviv.
According to State Department sources, there is no immediate plan to move the embassy
or to begin construction of a new embassy.
As part of a plan to replace the current old and inadequate embassy, the United States
and Israel signed an agreement on January 18, 1989, that calls for Israel to provide two
sites, one in Tel Aviv and one in Jerusalem, suitable for a U.S. embassy and a consulate.
In return, the United States will give Israel the Tel Aviv site of the present embassy. The
United States will purchase the new Tel Aviv site, and will lease the Jerusalem site for 99
years at $1 per year (renewable for another 99 years at $1 per year). Israel has offered a
Tel Aviv site, but the United States rejected the site because of security considerations.
Also, Israel has made available the so-called Allenby tract in southwest Jerusalem (within
the pre-1967 Israeli boundaries of the city of Jerusalem) for the construction of an
embassy. According to the terms of the 1989 agreement, the United States has been paying
$1 per year to lease the 7.75-acre Allenby site. But the site has been rejected by the United
States as unsuitable for a U.S. embassy because of security considerations. (Unofficial
reports suggest that other buildings on higher ground bordering the Allenby tract would
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look down on the embassy and compromise its security.) Also, Arab owners of the
Jerusalem tract claim that it is part of a religious trust (a Waqf) that cannot be transferred
to another party, although the State Department disputes the Waqf claim.
Background
In November 1947, the United Nations General Assembly recommended in
Resolution 181 that Palestine be partitioned into an Arab state and a Jewish state.
Resolution 181 also recommended that the city of Jerusalem not be included in either state
and become a “corpus separatum” because of its religious significance to Muslims,
Christians, and Jews. In April 1948, the U.N. Trusteeship Council drafted a statute for the
international city. But in the course of the 1948-1949 war, the Jews of Israel seized the
western portion of the city and the Arabs of Jordan seized the eastern portion. In
December 1948, the United Nations passed Resolution 194, and in December 1949 passed
Resolution 303, both of which reconfirmed that Jerusalem should be an international city.
But Israel declared Jerusalem its capital in 1949, and Jordan annexed the West Bank,
including east Jerusalem, in 1950. Israel annexed the eastern portion of the city following
the 1967 war. Only Pakistan and the United Kingdom recognized Jordan’s annexation of
the West Bank and east Jerusalem in 1950, and no country recognized Israel’s annexation
of Jerusalem in 1967. Four countries have embassies in the Jerusalem area; other embassies
are in Tel Aviv, Ramat Gan, or Jaffa.
Israel claims that Jerusalem is its capital, and that the city will not be redivided as it
was between 1949 and 1967. Palestinian Arabs seek an Israeli withdrawal from the eastern
portion of the city seized in 1967, and want to establish the capital of a Palestinian state
there. The Palestinians and Israel agreed in the 1993 Declaration of Principles that
Jerusalem, along with Israeli settlements in the occupied territories, boundaries, and
refugees, would be among the subjects of permanent status negotiations. The permanent
status negotiations reopened on September 13, 1999, with the Israeli and Palestinian stated
aim of completing an agreement within one year.
United States Policy Toward Jerusalem
The United States voted for United Nations General Assembly Resolutions 181 and
194 but voted against Resolution 303 that reaffirmed the corpus separatum because the
United States believed that the corpus separatum was no longer feasible after Israel and
Jordan had established a political presence in their respective halves of the city. The United
States opposed Israel’s moving its capital from Tel Aviv to Jerusalem in 1949, opposed
Jordan’s 1950 announced intention to make Jerusalem its second capital, and opposed
Israel’s 1967 annexation of the eastern portion of the city.
Following the 1967 war, in which Israel seized the eastern half of the city from
Jordan, the United States proposed that the future of Jerusalem should be the subject of
a negotiated settlement. Subsequent U.S. administrations have adhered to the same policy,
that Jerusalem’s future should be negotiated and not be the subject of unilateral actions.
Consequently, the United States has avoided any action, such as moving the U.S. Embassy
from Tel Aviv to Jerusalem, that could prejudice the negotiations.

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Congressional Actions Toward Jerusalem
Over the years, Congress generally has supported Israeli claims to sovereignty over
all of the city and has opposed the policy of avoiding actions that might prejudice
negotiations. In 1984, Congress passed H.Con.Res. 352 stating the sense of Congress that
the U.S. embassy should be moved from Tel Aviv to Jerusalem. The Senate attached an
amendment to the Diplomatic Security Act in 1985 stating that a new U.S. embassy
serving Israel could be built only in Jerusalem. But House-Senate conferees could not
agree on legislative language, and subsequently struck a compromise by banning site
acquisition, development, or construction of any diplomatic facilities in Jerusalem, the
West Bank, or Israel (Section 414 of P.L. 99-399, 27 August 1986, and repeated the next
year in Section 130 of P.L. 100-204, December 22, 1987). In 1988, Congress reversed
itself, and authorized funding for construction of two facilities, one in Jerusalem and one
in Tel Aviv, with the understanding that the President would select which of the two
would be the embassy (Section 305 of P.L. 100-459, October 1, 1988).1
Congress passed S.Con.Res. 106 and H.Con.Res. 290 in 1990, stating that Jerusalem
is the capital of Israel and that the city should remain undivided. A similar resolution,
S.Con.Res. 113, passed both houses in 1992. In 1993, the House and Senate passed H.R.
3474 stating that the United States should veto any United Nations resolutions that called
Jerusalem “occupied territory,” but the section was deleted in conference. In addition to
legislation, Members of Congress have sent letters to the President voicing their opinion
about Jerusalem. On October 5, 1994, 260 House Members wrote to President Clinton
stating their belief that Jerusalem is the capital of Israel, and 93 Senators wrote to
Secretary of State Warren Christopher on March 20, 1995, urging that the embassy be
moved from Tel Aviv to Jerusalem. 84 Senators voiced a similar opinion to the President
in a July 23, 1999 letter.
Section 725 of S. 886, the foreign relations authorization bill for FY2000, 2001: (1)
authorizes $50 million each year for FY2000 and FY2001 for construction of a U.S.
embassy in Jerusalem, (2) prohibits use of funds for a U.S. consulate in Jerusalem unless
the consulate is under the authority of the U.S. Ambassador to Israel, (3) states that
publications funded by the bill that list countries and capitals must name Jerusalem as the
capital of Israel, and (4) provides for passports issued to U.S. citizens born in Jerusalem
to list their birthplace as Israel. S. 886 passed the Senate in June and is awaiting
conference with H.R. 2415 as of September 15, 1999.
P.L. 104-45: A Summary
The most significant legislation dealing with Jerusalem is P.L. 104-45, which became
law on November 8, 1995, without the President’s signature.
--
Section 3(a) states that it is the policy of the United States that Jerusalem should be
undivided with protection for religious and ethnic rights, that Jerusalem should be
recognized as Israel’s capital, and that the U.S. embassy should be moved to
Jerusalem by 31 May 1999.
1 See: Congressional Record, vol.134, part 13, July 26, 1988, p. 18739.

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--
Section 3(b) states that not more than 50% of FY1999 funds appropriated to the
Department of State for acquisition and maintenance of buildings abroad may be
obligated until the U.S. embassy in Jerusalem is opened.
--
Section 4(a) sets aside $25 million in FY1996 for construction and other costs of the
embassy in Jerusalem, and Section 4(b) sets aside $75 million in FY1997 for
construction and other costs of an embassy in Jerusalem.
--
Section 5 directs the Secretary of State to submit a report to Congress detailing
phases in construction of an embassy in Jerusalem and an estimate of the costs.
Section 6 directs the Secretary to report progress toward establishing the embassy
in Jerusalem every six months.
--
Section 7 (a)(1) gives the President the authority to waive Section 3(b) for 6 months
providing the suspension is necessary to protect the U.S. national security interests.
Exercising the Waiver
On June 18, 1999, the President signed Presidential Determination 99-29, exercising
the waiver in Section 7(a) of P.L. 104-45 to suspend Section 3(b) of P.L. 104-45 for a
period of six months. Section 3(b) of P.L. 104-45 says: “Not more than 50 percent of the
funds appropriated to the Department of State for fiscal year 1999 for “Acquisition and
Maintenance of Buildings Abroad” may be obligated until the Secretary of State
determines and reports to Congress that the United States Embassy in Jerusalem has
officially opened.” The Presidential Determination released the FY1999 funds and is
interpreted by many to have side-stepped the responsibility stated in Section 3(a) to move
the embassy from Tel Aviv to Jerusalem.
Interpretation of P.L. 104-45
The U.S. embassy remained in Tel Aviv after the May 31, 1999 deadline stated in
Section 3(a) of P.L. 104-45. Some argue that the waiver authority in Section 7 of the Act
includes the obligation to move the embassy stated in Section 3(a) as well as the funding
restriction in Section 3(b), and that the waiver released the funding constriction and
temporarily released the President from the obligation of moving the embassy. Others
argue that Section 3(a) does not say the President must move the embassy, only that U.S.
policy should be to move the embassy. But some argue that the intent of Congress is
clear and that the President is bound to move the embassy regardless of the waiver.
Finally, some argue that Congress does not have the authority to compel the President to
site an embassy in a particular location. The issue, in short, involves questions both of
statutory interpretations and of congressional and executive authority over the conduct
of foreign relations.
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.

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Diplomatic Considerations. The United States recognizes that there are competing
claims to the city, political claims between Israel and the Palestinians, 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 31 May 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.”
Land. More than 9% 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 solely for the benefit of the Jewish people. Consequently, none of the
government-owned or JNF-owned land may be sold, only leased. The U.S.-Israel
agreement of January 18, 1989, provided for an exchange of sites in Tel Aviv and for a
99-year lease of the Allenby tract in Jerusalem on which the United States could build an
embassy. Israel offered the United States a Tel Aviv property in exchange 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,
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.

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Jerusalem Under Israeli Occupation
Jerusalem
Airport
Israel 1967 to
the present
Shufat
Hebrew
Univ.
Jordan
Old
city
Israel city
City
limit 1966
limit
Ein
1966
Karim
Silwan
Government
Abu Dis
House
Beit
Safafa
Ramat
Rabel
Sharafat
Adapted by CRS from Magellan Geographix. Used with permission.