Since I wrote my last blog, it seems that the incoming U.S. administration is intent on moving the U.S. embassy in Israel to Jerusalem. What are the (actual) implications of doing this?

Under international law, the ‘status’ of the “Holy City of Jerusalem” is to remain unchanged until its final status is agreed, see for example: Security Council resolution 478 of 1980. Changes are all relative to its original, official status. From a practical, legal perspective, the baseline status of the city can only be that of the partition plan of 1947 described in UN Resolution 181.

The 1947 plan contains geographic boundary conditions for Jerusalem. These boundaries were expansive and even included Bethlehem.  When Israel declared independence in 1948 it had captured a promontory up to, but not including, the western edge of the Old City of Jerusalem. The Old City is where principle ‘holy’ elements of the place are.

When Israel was admitted to the UN in 1949, the geographic area captured by Israel was recognized by the international community as legally part of the state of Israel. In other words, part of the city of Jerusalem – as a geographic location – was included in the legal status of Israel. By extension this was the next, legal iteration of the status of Jerusalem.

Under Resolution 181 Jerusalem was to be a city state administered by the UN, and holding embassies in Tel Aviv remains normative because of an early expectation of implementation of this concept. The acceptance of 1947 boundaries of Israel rendered this outcome legally unworkable however, for the region of West Jerusalem, if not practically unworkable for the remainder of Jerusalem according to its pre-1947 boundaries.

In 1967, Israel captured the Old City, areas in “East” Jerusalem, amongst others. These areas, referred to in subsequent Security Council resolutions as Arab territories acquired by “military conquest”, this includes the Old City, but not the territory in West Jerusalem which was already recognized as part of Israel.

This means that when UN Resolution 478 – which specifically addresses the issue of embassies in Jerusalem – asserts: “Those States that have established diplomatic missions at Jerusalem to withdraw such missions from the Holy City.” It is referencing more than one distinct location: Jerusalem and the Holy City. The latter is a subset of the former, but they are not equivalent.

Since Resolution 181 makes no reference to state capitals, or their location. Should any state wish to move their Embassy from Tel Aviv to a location in Jerusalem that is within the pre-1967 borders, it would not be in contravention of UNSC Resolution 478. I.e. legal under international law. To remain compliant with international law however, such a move must be accompanied by the diplomatic limitations that should already be in place now for all embassies. The embassy should not, for example, officially serve outside of the 1947 boundaries, i.e. East Jerusalem, the Old City, and other areas covered by the Israeli Basic Law of Jerusalem but not within its legal state of 1947. To do so will formally acknowledge occupied areas as Israeli, and by extension breech the Geneva Convention (as specified in numerous Security Council resolutions).

Interestingly, the Jerusalem Embassy Act (1995) requires the United States to move its embassy to Jerusalem by the end of 1999 and to recognize Jerusalem as the capital of Israel. It has only been delayed through Presidential waiver. To enact this would therefore be consistent with U.S national law as well as permitted under international law.

That does not mean it would be free of negative consequence.

If this move is made by the U.S. – the main broker of Israeli/Palestinian peace talks, and world’s superpower – it would, at the least, be hugely symbolic. At most it could mark the start of a new intifada in the West Bank, and Arab League disengagement from peace talks. Even if nothing comes to pass, it would have implications for the role that the U.S. is able to play in the peace process. That would have an impact on peace in the long term, if not the short term.

I reviewed the following UN Security Council resolutions for this blog: 242(1967), 252(1968); 267(1969); 271(1969); 298(1971); 446(1979), 452(1979); 465(1980); 476(1980), 478(1980), 1397(2002), 1515(2003), 1850(2008), and 2334(2016)