What Exactly Is US Government Policy On Jerusalem As Capital Of Israel

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Last week US Vice President Mike Pence gave a speech at the historic site of the first UN General Assembly in Flushing Meadows on Long Island, New York. This part of his speech was what much of the press focused on:

And while, for the past 20 years, Congress and successive administrations have expressed a willingness to move our embassy, as we speak, President Donald Trump is actively considering when and how to move the American embassy in Israel from Tel Aviv to Jerusalem. (Applause.)

The speech contained much more than this and you can see it and read about that here. All this press hyperventilation occurs (kicked off by this widely shared and refuted Axios report) because every 6 months every sitting president since 1999 has signed a waiver to prevent the move of the US Embassy from Tel Aviv to Jerusalem. In 1995 the 104th United States Congress passed the “Jerusalem Embassy Act of 1995” and it is well worth reading the Findings of that act, here they are in full:

Section 2. Findings

The Congress makes the following findings:

  1. Each sovereign nation, under international law and custom, may designate its own capital.
  2. Since 1950, the city of Jerusalem has been the capital of the State of Israel.
  3. The city of Jerusalem is the seat of Israel’s President, Parliament, and Supreme Court, and the site of numerous government ministries and social and cultural institutions.
  4. The city of Jerusalem is the spiritual center of Judaism, and is also considered a holy city by the members of other religious faiths.
  5. From 1948-1967, Jerusalem was a divided city and Israeli citizens of all faiths as well as Jewish citizens of all states were denied access to holy sites in the area controlled by Jordan.
  6. In 1967, the city of Jerusalem was reunited during the conflict known as the Six Day War.
  7. Since 1967, Jerusalem has been a united city administered by Israel, and persons of all religious faiths have been guaranteed full access to holy sites within the city.
  8. This year marks the 28th consecutive year that Jerusalem has been administered as a unified city in which the rights of all faiths have been respected and protected.
  9. In 1990, the congress unanimously adopted Senate Concurrent Resolution 106, which declares that the Congress ‘‘strongly believes that Jerusalem must remain an undivided city in which the rights of every ethnic and religious group are protected’’.
  10. In 1992, the United States Senate and House of Representatives unanimously adopted Senate Concurrent Resolution 113 of the One Hundred Second Congress to commemorate the 25th anniversary of the reunification of Jerusalem, and reaffirming congressional sentiment that Jerusalem must remain an undivided city.
  11. The September 13, 1993, Declaration of Principles on Interim Self-Government Arrangements lays out a timetable for the resolution of ‘‘final status’’ issues, including Jerusalem.
  12. The agreement on the Gaza strip and Jericho Area was signed May 4, 1994, beginning the five-year transitional period laid out in the Declaration of Principles.
  13. In March of 1995, 93 members of the United States Senate signed a letter to Secretary of State Warren Christopher encouraging ‘‘planning to begin now’’ for relocation of the United States Embassy to the City of Jerusalem.
  14. In June of 1993, 257 members of The United States House of Representatives signed a letter to the Secretary of State Warren Christopher stating that the relocation of the United states Embassy to Jerusalem ‘‘should take place no later than . . . 1999’’.
  15. The United States maintains its embassy in the functioning capital of every country except in the case of our democratic friend and strategic ally, the State of Israel.
  16. The United States conducts official meetings and other business in the city of Jerusalem in de facto recognition of its status as the capital of Israel.
  17. In 1996, the State of Israel will celebrate the 3,000th anniversary of the Jewish presence in Jerusalem since King David’s entry.

Section 3. Timetable

(a) Statement of the Policy of the United States.—

  1. Jerusalem should remain an undivided city in which the rights of every ethnic and religious group are protected.
  2. Jerusalem should be recognized as the capital of the State of Israel; and
  3. the United States Embassy in Israel should be established in Jerusalem no later than May 31, 1999.

(b) Opening Determination.—

  1. 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.

That is the law as passed by the United State of America’s government in 1995. What Congress actually said is that the State Department would lose 50% of its buildings abroad funding IF the embassy doesn’t open in Jerusalem.



However, there is a clause (7) allowing the President to defer this withdrawal of funding in the event the Embassy doesn’t open in Jerusalem and if he determines deferral “is necessary to protect the national security interests of the United States”. Every President, every 6 months, since June 1999 has done that. Trump did it on May 31st 2017. So he’s due to sign this waiver any day now.

On Wednesday President Trump is set to give a speech. Anyone who says publicly that they know whats in that speech and tells you, probably doesn’t know and is speculating. If you want the best clues around, I would look back to Pence’s speech last week as I mentioned at the top of this post.

The smart money (and mine) is on a recognition of Jerusalem as the Capital of Israel but without any concrete steps to move the embassy. Russia recognised Jerusalem back in April and the world didn’t come to an end.

[For a much more detailed legal explanation of the Waiver, see this post by Eugene Kontorovich.]

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