The West has for decades displayed a diplomatic double standard when it comes to its consulates: refusing to recognize Jerusalem as Israel’s capital, but holding diplomatic missions to the Palestinian Authority in the very same city.

Much has been made in recent months of President Donald Trump’s pledge to move the U.S. embassy in Israel from Tel Aviv to Jerusalem and its possible repercussions. The public conversation has generally concentrated on the potential diplomatic and political fallout, especially the possibility of a new outbreak of Palestinian violence. Lost in all the controversy, however, is the fact that the U.S. is one of nine countries that already has a de facto embassy in Jerusalem. But these are all embassies to the Palestinians, not Israel.

The U.S. embassy in Israel is located in Tel Aviv, but much less well known is that the U.S. consulate-general sits in Jerusalem, just around the corner from the Prime Minister’s residence—and it handles diplomatic relations with the Palestinian Authority. It is one of nine consulates-general in Jerusalem, all of which serve the same purpose. Five of them—the UK, Turkey, Belgium, Spain and Sweden—are in eastern Jerusalem. The consulates-general of the US, France, Italy, and Greece are in western Jerusalem. The European Union also has a representative office in eastern Jerusalem, and the Holy See has an Apostolic Nunciature there, alongside the Palestinian offices of several international agencies.

None of the countries that have consulates in Jerusalem recognize Israeli sovereignty over the city. Consequently, their official embassies remain in Tel Aviv. Their consulates in Jerusalem are, almost uniquely, accredited to no state. And none of the consuls seek an exequatur, the diplomatic authorization required by international law. Nevertheless, the Israeli Foreign Ministry treats them for all intents and purposes as if they were normal consulates accredited to the State of Israel. Their jurisdiction covers the whole of Jerusalem, as apart from Israel, as well as the West Bank and Gaza Strip.

Why do nine countries refuse to operate embassies in Jerusalem on the grounds that they do not recognize Israeli sovereignty there, while maintaining diplomatic missions to the Palestinians in the very same city? None of the relevant foreign ministries was willing to publicly justify the situation. Indeed, the story of this diplomatic anomaly is one of a situation that no country designed or consciously desired, but that no one today has the will to change.

The consulates-general in Jerusalem predate the State of Israel itself: the U.S. Consulate-General has been on Agron Road since 1912 and the French Consulate-General nearby opened its doors in 1929. Many of these consulates trace their roots as far back as the Ottoman period, and under the British Mandate, Jerusalem hosted many other consulates that were subsequently abandoned.

When the UN General Assembly recommended the partition of Mandatory Palestine into two states in Resolution 181 in November 1947, it also recommended that Jerusalem become a corpus separatum: a territory administered by the UN’s Trusteeship Council itself, belonging to neither side. This resolution, of course, was never implemented: the Arab states waged war to defeat it, and consequently Jerusalem was divided between Israel in the west and Transjordan in the east.

The UN refused to let the idea of the corpus separatum die, despite accepting that its earlier border proposals were now defunct. In Resolution 194 of December 1948, the General Assembly resolved that Jerusalem “should be accorded special and separate treatment…and should be placed under effective United Nations control.” Consequently, foreign states began establishing their embassies to Israel in Tel Aviv.

Israel and Jordan rebuffed the UN’s attempt to pry Jerusalem out of their hands. In December 1949, Prime Minister David Ben-Gurion ordered the Israeli seat of government, relocated to Tel Aviv during the war, to return to Jerusalem. The General Assembly responded immediately by restating in Resolution 303 that “Jerusalem should be placed under a permanent international regime.”

The presence of embassies in Tel Aviv left the Jerusalem consulates in an awkward and anomalous position. During the Mandate era, the U.S. consulate’s jurisdiction covered both Palestine and Transjordan, because the U.S. did not grant Jordan de jure recognition until 1949. When Jerusalem vice-consul Wells Stabler was sent to be chargé d’affaires in Jordan, and an embassy was established in Tel Aviv, this left the Jerusalem consulate dealing with the parts of Mandatory Palestine that the U.S. did not recognize as belonging to any country—namely, the whole of Jerusalem and the West Bank. Other states also adjusted the jurisdictions of their Jerusalem consulates accordingly.

According to Daniel Oliver Newberry, the U.S. vice-consul in Jerusalem during the 1940s, the status of the Jerusalem consulate was a matter of dispute within the State Department. “The American ambassador in Tel Aviv [James McDonald] insisted that the consulate general in Jerusalem was a ‘constituent post’ of the American mission in Israel,” Newberry recalled. “He tried to give orders to the consul general in Jerusalem, but the consul general would have none of it.” The consulate insisted on reporting directly to the State Department rather than through an embassy, and continues to do so today.

From 1948 onwards, then, the international community has persistently refused to recognize Israeli sovereignty over any part of Jerusalem. For a while, U.S. officials still had “Jerusalem, Palestine” printed in their passports, because the State Department believed that “in a de jure sense, Jerusalem was part of Palestine and has not since become part of any other sovereignty.” For years, according to one WikiLeaks cable, the consulate was “careful not to deal with any Israeli ministry official directly,” even on a social basis, lest it be “interpreted as recognition of their claims to sovereignty over Jerusalem.” When a driver for the Belgian consulate was involved in a deadly road accident in Jerusalem in 1952, Brussels attempted unsuccessfully to deny the jurisdiction of Israeli courts.

In the 1967 Six-Day War, Israel captured the eastern half of Jerusalem, and immediately enlarged the city’s municipal boundaries to include the Old City and its surroundings. In Resolution 252 of May 1968, the Security Council unanimously called on Israel to rescind its changes to Jerusalem’s status. Israel refused.

During the 1970s, the U.S. consulate was a source of serious tension between the Israeli government and the United States. The Carter administration was trying to persuade the West Bank Palestinians to support the Camp David Accords with Egypt, which included plans for Palestinian autonomy in the West Bank and the Gaza Strip. Israeli ministers were concerned that the consulate was actually encouraging Palestinians in the West Bank to support independence. Tensions were such that, according to a confidential consular cable obtained by WikiLeaks, the consulate was concerned Israel might unilaterally attempt to change the jurisdiction of the post.

Israel soon thrust the question of Jerusalem into the international spotlight again. In June 1980, the Knesset officially declared that the “complete and united” Jerusalem was the capital of Israel. In Resolution 478, the Security Council unanimously condemned the legislation, declaring it “null and void” and demanding its immediate repeal. Crucially, it also called on “those States that have established diplomatic missions at Jerusalem to withdraw such missions from the Holy City.” Under Arab pressure, the Netherlands and several Latin American countries withdrew their embassies from Jerusalem. The consulates, however, which were technically not diplomatic missions, remained.

In 1994, with the signing of the Oslo Accords, these consulates became the representatives to the newly constituted Palestinian Authority. Turkey, which had shut its consulate in protest in 1980 and later recognized “Palestine” when the PLO declared independence in 1988, reopened its consulate in Jerusalem with Israeli acquiescence. In 1995, Congress countered these maneuvers by passing the Jerusalem Embassy Act, calling on the U.S. to recognize a united Jerusalem as Israel’s capital and ordering the U.S. embassy in Israel relocated there. Since then, every U.S. president has signed a waiver at six-month intervals postponing this recognition and the establishment of an embassy in Jerusalem for “national security” reasons. All President Trump needs to do to move the embassy is to refuse to sign the waiver when it lands on his desk on June 1, 2017.

In short, over the course of recent decades, what began as consular offices in Mandatory Palestine became de facto embassies to the Palestinian Authority.

The fact that these missions in Jerusalem, which are not technically accredited to any state, handle political relations with the Palestinians is openly advertised by the countries concerned. The U.S. consulate calls itself “the de facto representative of the United States government to the Palestinian Authority.” The Turkish consulate describes itself as an embassy in all but name, saying that “despite…an official title of ‘Consulate General,’” it has “the volume of work and qualities as other embassies abroad.”

In general, consulates around the world concern themselves with gathering information and providing consular services. In contrast, the Jerusalem consulates are almost uniquely political, a quirk they share with consulates in Hong Kong. The U.S. consulate says its job is to “help the Palestinian Authority build the sustainable institutions of a future independent, viable, democratic, and sovereign Palestinian state.” According to former U.S. ambassador to Israel Dan Shapiro, this political function means that “PA officials occasionally came to Jerusalem,” an occurrence he describes as “not normal but not unprecedented.”

The Italian consulate, also in western Jerusalem, says it is “responsible for maintaining and developing [Italy’s] relationships…with the Palestinian authorities…at all levels.” Sweden, which recognized “Palestine” in 2014, says its Jerusalem consulate has “the objective to promote democratic Palestinian state building.”

The consulates’ jurisdiction covers the whole of Jerusalem as defined by the 1947 corpus separatum, the West Bank, and Gaza. Despite formally withholding recognition of any sovereignty over Jerusalem, the nine countries treat even western Jerusalem as part of the same jurisdiction as the whole of the West Bank. Professor Eugene Kontorovich of Northwestern University Law School argues that this situation is incoherent. Originally, the corpus separatum extended as far south as Bethlehem and as far east as Abu Dis, but the international community now treats these areas as “occupied Palestinian territory” rather than part of a Jerusalem whose future will be decided through negotiations between the two sides.

In addition, even though the consulates are not accredited to Israel, the Israeli Foreign Ministry treats them for all intents and purposes as if they were. The Ministry says it has ties with the consulates both directly and through their respective embassies, and gives them and their staff “the necessary documentation.” A U.S. consular cable from 1979 obtained by WikiLeaks confirmed that consular staff receive Foreign Ministry-issued ID cards and “all of the normal privileges and prerogatives accorded to foreign consuls and consulates,” adding the same was true of the other consulates in the city. Another leaked cable clarified that these privileges include consular exemptions from taxes.

This is significant because, according to the 1963 Vienna Convention on Consular Relations, consuls are required to receive the written permission of the host country in order to assume their post. According to Article 12: “The head of a consular post is admitted to the exercise of his functions by an authorization from the receiving State termed an exequatur.” A consul, the convention stipulates, “shall not enter upon his duties until he has received an exequatur.” Indeed, the honorary consuls of Ukraine, Georgia, Estonia, and the Philippines serving in Jerusalem do appear to seek exequaturs from Israel as required by the Vienna Convention.

Uniquely, the nine consuls-general in Jerusalem do not seek exequaturs from Israel. During a congressional debate on moving the U.S. Embassy to Jerusalem, Undersecretary of State Laurence Eagleburger confirmed that the U.S. consul “does not seek formal consular recognition from any government,” adding the same was true of the other consulates-general.

This was not originally the case. During the Mandate period, consuls in Jerusalem received exequaturs from the United Kingdom. But when the UN General Assembly reaffirmed in Resolution 194 that Jerusalem should become an international city, most countries refused to recognize either Israeli or Jordanian claims over Jerusalem; as a result, they refused to seek authorization from either nation.

It was never a foregone conclusion that the consulates would operate without exequaturs. Indeed, in 1949 Israel told Turkey that it expected Ankara to apply for such authorization. On January 13, 1950, State Department legal advisor Leonard Meeker advised that, in light of Resolution 194, the U.S. “should not take any steps with respect to the functioning of American consular officers in Jerusalem which would recognize the sovereignty of any national state.” He argued that it would be “permissible” to seek exequaturs for consuls in Jerusalem “if it were clearly understood that such action did not involve recognition by the United States of Israeli or Jordanian sovereignty in Jerusalem,” but the U.S. should refuse if Israel and Jordan would only grant the exequaturs “on the understanding that recognition of sovereignty would be implied.”

Meeker noted that, in the past, the U.S. had secured recognition from Belgium for consular staff in the Congo despite not recognizing the Belgian annexation, by adding a caveat that this did not imply de jure recognition of Belgium’s claims. He added that U.S. consular staff in Chile had also obtained exequaturs despite not recognizing the regime. When the government of Nazi Germany refused to accept this caveat to accommodate U.S. consular staff in Czechoslovakia and Danzig in 1939, however, the U.S. closed its consulates. It is not clear whether the U.S. ever made this proposal to Israel—but whatever transpired, it ended up operating a consulate without the necessary authorization.

Kontorovich believes that Israel could argue that these countries are in violation of its rights under international law. If Jerusalem is indeed Israeli territory, then these nine countries are acting in contravention of the Vienna Convention. But Kontorovich stresses that, unless Israel complains, there is not necessarily a legal problem, because Israel has chosen not to exercise its rights. Nevertheless, he says, Israel would be within its rights to insist that these countries acquire authorization and then deny it to them. He suggests it might have been a “smart reaction” to Sweden’s recognition of Palestine: as it stands, Israel is helping Sweden use territory under Israeli jurisdiction for representation to a state that does not currently exist and has no legal rights over any of that territory, but still makes rival claims to it.

Given that nine countries have what amount to de facto embassies to the Palestinian Authority in Jerusalem, why do they not rectify this imbalance by moving their embassies to Israel from Tel Aviv to Jerusalem?

The reason has almost become a cliché: the international community does not recognize any sovereignty over Jerusalem and expects the city’s status to be determined by final-status negotiations between Israel and the Palestinians that would make a divided Jerusalem the capital of both states.

None of the relevant foreign ministries were willing, when asked, to address the obvious contradiction raised by this claim: they insist that there can be no embassy to Israel in Jerusalem because the status of the city must be decided through negotiations, but at the same time operate de facto embassies to the Palestinian Authority in the same city.

Shapiro stresses that this anomaly was “not set up by design,” but took shape for practical reasons. “When the PA emerged as the outgrowth of the Oslo process, we needed to have some way of having regular diplomatic communications,” he explains. “The consulate took on that role primarily for security reasons. There would have been a logic to having a mission in Ramallah, but it would have been very hard to implement State Department security protocols. Consular staff travel daily in heavily armed convoys [to the West Bank] and don’t stay overnight there.” He says the consulate was a convenient base for these relations because it was nearby and “had consular responsibility for those territories anyway.” He stresses that this fact “doesn’t in any way suggest a belief that West Jerusalem was destined to be ruled by the Palestinians.”

Since concluding his posting as ambassador, Shapiro has emerged as a supporter of moving the U.S. Embassy to Jerusalem. But he rebuffs suggestions that the U.S. should do so by simply changing the sign on the front of the consulate, saying Palestinian officials would refuse to meet diplomats who are accredited only to the State of Israel. “They would see that as a downgrade of their aspirations for sovereignty after 20 years of working with the consulate. It certainly would be damaging to our interests to move the embassy, then realize we don’t have anyone who could have meetings with the PA.” He suggests either establishing an office in Ramallah or waiving a U.S. law that prohibits having an embassy and a consulate in the same city.

Israel appears to have made its peace with the presence of diplomatic missions to the Palestinians in its capital. According to Shapiro, “It was occasionally mentioned [by government figures] with a wry note of disappointment that the only U.S. mission in Jerusalem was to the Palestinians,” but says the matter was “never raised with serious expectations of any change.”

The Israeli Foreign Ministry rejected requests for the Head of Protocol to speak on-the-record for this article, insisting, “These consulates have nothing to do with the State of Israel.” Spokesman Emmanuel Nahshon, however, subsequently answered: “After 1967, the State of Israel preserved the status quo in Jerusalem regarding the consulates in the city at the same time, and this policy has been kept throughout the years.” Deputy Foreign Minister Tzipi Hotovely, a strong opponent of Palestinian statehood, declined to comment altogether.

Clearly, Jerusalem is the subject of a striking double standard, which no foreign ministry is willing to rationalize or justify. On the one hand, Israel is withheld recognition of its capital, and told it cannot host embassies there lest it give the impression that the international community recognizes its sovereignty in the city. But on the other hand, the Palestinians enjoy the privilege of diplomatic missions in the very same city, without any qualms in the international community about the effective hypocrisy.

Looked at this way, at least as a moral question, moving the U.S. embassy to Jerusalem could be seen not be so much a gift as an act of redress. It would be an admission that the anachronistic proposal to make Jerusalem a UN trust territory is off the table. And it would be recognition that since the Palestinians—by accident—already enjoy diplomatic missions in Jerusalem, the denial of the same to the country that already exists and controls that city would be an act of inconsistency.

Moving the U.S. embassy could, in short, right a historic wrong.

Banner Photo: Magister / Wikimedia

