Jerusalem Embassy Act

Jerusalem Embassy Act

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The Jerusalem Embassy Act of 1995 is a public law of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

 passed by the 104th Congress
104th United States Congress
The One Hundred Fourth United States Congress was a meeting of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives. It met in Washington, DC from January 3, 1995 to January 3, 1997, during the third and...

 on October 23, 1995. It was passed for the purposes of initiating and funding the relocation of the Embassy of the United States in Israel
Embassy of the United States in Israel
The Embassy of the United States of America in Tel Aviv is the permanent U.S. mission to Israel and has been located at 71 Hayarkon Street in Tel Aviv since the building's completion in 1966.-History:...

 from Tel Aviv
Tel Aviv
Tel Aviv , officially Tel Aviv-Yafo , is the second most populous city in Israel, with a population of 404,400 on a land area of . The city is located on the Israeli Mediterranean coastline in west-central Israel. It is the largest and most populous city in the metropolitan area of Gush Dan, with...

 to Jerusalem, no later than May 31, 1999, and attempted to withhold 50 percent of the funds appropriated to the State Department specifically for ‘‘Acquisition and Maintenance of Buildings Abroad’’ as allocated in fiscal year 1999 until the United States Embassy in Jerusalem had officially opened. The act also called for Jerusalem to remain an undivided city and for it to be recognized as the capital of the State of Israel. Israel's declared capital is Jerusalem, but this is not internationally recognized, pending final status talks in the Israeli-Palestinian conflict. The United States has withheld recognition of the city as Israel's capital. The proposed law was adopted by the Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

 (93–5), and the House
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...

 (374–37).

Since passage, the law has never been implemented, because of opposition from Presidents Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...

, Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....

, and Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...

, who view it as a Congressional infringement on the executive branch’s constitutional authority over foreign policy; they have consistently claimed the presidential waiver on national security interests.

Background



Jerusalem holds unique spiritual and religious interests among the world's Abrahamic religions
Abrahamic religions
Abrahamic religions are the monotheistic faiths emphasizing and tracing their common origin to Abraham or recognizing a spiritual tradition identified with him...

 of Judaism
Judaism
Judaism ) is the "religion, philosophy, and way of life" of the Jewish people...

, Christianity
Christianity
Christianity is a monotheistic religion based on the life and teachings of Jesus as presented in canonical gospels and other New Testament writings...

, and Islam
Islam
Islam . The most common are and .   : Arabic pronunciation varies regionally. The first vowel ranges from ~~. The second vowel ranges from ~~~...

. Following the First World War, the victorious Principal Allied Powers recognized these as "a sacred trust of civilization", and stipulated that the existing rights and claims connected with them should be safeguarded in perpetuity, under international guarantee. The terms of the British Balfour Declaration of 1917 were included in the Mandate for Palestine by the League of Nations
League of Nations
The League of Nations was an intergovernmental organization founded as a result of the Paris Peace Conference that ended the First World War. It was the first permanent international organization whose principal mission was to maintain world peace...

. The US government was not a party to these agreements; but stated official foreign policy in 1919 was to ‘acquiesce’ in the Balfour Declaration, but not officially support Zionism
Streams of Zionism
The Zionist Movement was produced by various philosophers representing different approaches concerning the objective and path that Zionism should follow. The principal common goal was the aspiration to establish an independent state for the Jewish people. However, the method of action needed was...

. On September 21, 1922, the US Congress passed a joint resolution
Joint resolution
In the United States Congress, a joint resolution is a legislative measure that requires approval by the Senate and the House and is presented to the President for his/her approval or disapproval, in exactly the same case as a bill....

 stating its support for a homeland in Palestine for the Jewish people but not at the expense of other cultures present at the time. This occurred virtually the same day the Palestine Mandate was approved by the League of Nations
League of Nations
The League of Nations was an intergovernmental organization founded as a result of the Paris Peace Conference that ended the First World War. It was the first permanent international organization whose principal mission was to maintain world peace...

; although official government findings
King-Crane Commission
The King-Crane Commission was an official investigation by the United States government during the summer of 1919 concerning the disposition of non-Turkish areas within the former Ottoman Empire...

 about the affected peoples’ choices concerning self-determination were available in government circles, they were withheld from the public until the following December. US foreign policy remained unchanged. These competing nationalist claims, one emanating from European oppression and one emanating locally against perceived colonialism, led to increasing civil violence during the inter-war period; following World War II, the ‘Question of Palestine’ was placed before the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...

, as the League's successor agency.

On 29 November 1947, the UN General Assembly adopted Resolution 181, the United Nations Partition Plan for Palestine; it contained a recommendation that Jerusalem be placed under a special international regime, a corpus separatum, administered by the United Nations and be separate from both the Jewish and Arab states envisioned. Following the conflict that ensued
1948 Arab-Israeli War
The 1948 Arab–Israeli War, known to Israelis as the War of Independence or War of Liberation The war commenced after the termination of the British Mandate for Palestine and the creation of an independent Israel at midnight on 14 May 1948 when, following a period of civil war, Arab armies invaded...

, cease-fires and the 1949 Armistice Agreements
1949 Armistice Agreements
The 1949 Armistice Agreements are a set of agreements signed during 1949 between Israel and neighboring Egypt, Lebanon, Jordan, and Syria. The agreements ended the official hostilities of the 1948 Arab-Israeli War, and established armistice lines between Israeli forces and the forces in...

 were negotiated and accepted by both sides. One of these resulted, in part, in a temporary division of Jerusalem. The relevant Armistice Agreement with Jordan, was signed on 3 April 1949, but it was considered internationally as having no legal effect on the continued validity of the provisions of the partition resolution for the internationalization of Jerusalem. On 25 April 1949, King Abdullah
Abdullah I of Jordan
Abdullah I bin al-Hussein, King of Jordan [‘Abd Allāh ibn al-Husayn] عبد الله الأول بن الحسين born in Mecca, Second Saudi State, was the second of three sons of Sherif Hussein bin Ali, Sharif and Emir of Mecca and his first wife Abdiyya bint Abdullah...

 officially changed the name of Transjordan to the Hashemite Kingdom of Jordan. He had secured the support of Great Britain (albeit qualified—Great Britain did not recognize the incorporation of East Jerusalem, maintaining that it ought to be part of a corpus separatum, an international enclave).

On December 5, 1949 however, the Israeli Cabinet, meeting in Tel Aviv
Tel Aviv
Tel Aviv , officially Tel Aviv-Yafo , is the second most populous city in Israel, with a population of 404,400 on a land area of . The city is located on the Israeli Mediterranean coastline in west-central Israel. It is the largest and most populous city in the metropolitan area of Gush Dan, with...

, declared Jerusalem to be the capital of Israel, and on January 23, 1950, the First Knesset proclaimed that "Jerusalem was, and had always been, the capital of Israel." On 24 April 1950, the Jordan House of Deputies and House of Notables, in a joint session, adopted a resolution annexing the West Bank and Jerusalem. Because the status of Jerusalem had been included previously in the UN Partition Plan, most countries did not accept this Israeli position, and most embassies have been located elsewhere.

The United States has stated that its policy on Jerusalem refers specifically to the geographic boundaries of the area that were set out for the "City of Jerusalem", or Corpus Separatum, in Resolution 181, but since 1950, US diplomats have traveled regularly to Jerusalem from the US Embassy in Tel Aviv to conduct business with Israeli officials. The United States has also stated that, in a de jure
De jure
De jure is an expression that means "concerning law", as contrasted with de facto, which means "concerning fact".De jure = 'Legally', De facto = 'In fact'....

sense, Jerusalem was part of Palestine and has not since become part of any other sovereignty. After the capture of the entire city and the adjacent West Bank in the 1967 Six Day War, the United States again reaffirmed the desirability of establishing an international regime for the city of Jerusalem.

Moving the US Embassy to Jerusalem would be a coup for Israeli hard-liners and their American supporters; they had lobbied hard for the passage of the Jerusalem Embassy Act at a particularly critical time in negotiations for the Oslo Accords
Oslo Accords
The Oslo Accords, officially called the Declaration of Principles on Interim Self-Government Arrangements or Declaration of Principles , was an attempt to resolve the ongoing Palestinian-Israeli conflict...

, despite opposition from both the Israeli and American administrations. The embassy move remains controversial within the United States government because the final status of Jerusalem (and Palestine) has not been agreed by the parties in the Peace process.

Details


The act asserted that every country has a right to designate the capital of its choice, and that Israel has designated Jerusalem. Jerusalem is defined as the spiritual center of Judaism
Judaism
Judaism ) is the "religion, philosophy, and way of life" of the Jewish people...

. Furthermore, it stipulates that since the reunification of Jerusalem in 1967, religious freedom has been guaranteed to all.

S. 1322 also stated that "Jerusalem should be recognized as the capital of the State of Israel
Israel
The State of Israel is a parliamentary republic located in the Middle East, along the eastern shore of the Mediterranean Sea...

; and the United States Embassy in Israel should be established in Jerusalem no later than May 31, 1999"
.

Although the Senate and House votes preceded visits by then Israeli Prime Minister Yitzhak Rabin
Yitzhak Rabin
' was an Israeli politician, statesman and general. He was the fifth Prime Minister of Israel, serving two terms in office, 1974–77 and 1992 until his assassination in 1995....

 and Jerusalem Mayor Ehud Olmert
Ehud Olmert
Ehud Olmert is an Israeli politician and lawyer. He served as Prime Minister of Israel from 2006 to 2009, as a Cabinet Minister from 1988 to 1992 and from 2003 to 2006, and as Mayor of Jerusalem from 1993 to 2003....

 to Washington
Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....

 to celebrate the 3000th anniversary of King David's declaration of Jerusalem as the capital of the Jews, little to no progress has been achieved in the physical relocation of the U.S. Embassy to Jerusalem to date.

Timetable


Section 3 of the Act outlined the U.S. policy and set the initial parameters for the Secretary of State to report in order to receive the full funding — again, with a May 1999 target deadline for the appropriations. The section also briefly stated U.S. policy concerning the matter.



The major roadblock has been the question on what effect, if any, the relocation may symbolize for other interested parties or neighboring nations involved in the ongoing and sometimes quite contentious Mid-East diplomacy and foreign relations. Since the legislation's introduction, the consensus has been that this action poses considerable risk to United States national security at home and abroad for this reason.

Constitutional separation of powers


Under the Constitution of the United States the President has exclusive authority to recognize foreign sovereignty over territory. The Justice Department Office of Legal Counsel concluded that the provisions of the Embassy Relocation Act invade exclusive presidential authorities in the field of foreign affairs and are unconstitutional.

U.S. presidents Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...

, George W. Bush
George W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....

, and now Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...

 have alluded to or explicitly stated the belief that Congressional resolutions attempting to legislate foreign policy infringe upon the Executive's authority and responsibility to carry out sound and effective U.S. foreign relations.

Regarding the status of Jerusalem specifically, President Bush had deemed Congress' role as merely "advisory", stating that it "impermissibly interferes with the President's constitutional authority". The U.S. Constitution reserves the conduct of foreign policy to the President and resolutions of Congress, such as the ones found in the Authorization Act of 2003 that included the Jerusalem Embassy Act's provisions, makes the arguments in favor of legislating foreign policy from Congress extremely problematic if not arguably invalid for that Constitutional reason.

Even from the Embassy Act's legislative beginnings, the question of Congress' over-reach and if somehow it was usurping the Executive's authority or power over matters of foreign affair had played subtle role in shaping the debate at the time. President Clinton had taken the unusual step of not signing the Embassy Act into law once Congress had presented it to him but rather let 10 days of inaction pass, allowing the bill to return to Congress and automatically become law by Constitutional "default" to show his disapproval. The non-action on Clinton's part reinforced this sticking point between the branches of Federal government without the possible public fallout from taking a "negative stand" on what appeared to be favorable, veto-proof legislation on the surface overall and at the time.

Presidential Waiver


This Constitutional question was apparent while the legislation was working its way through both chambers; Sen. Dole's amendment adopted into the introduced language included a provision that, in part, returned to the Executive Branch the power over foreign affairs it already had.

Since 1998, the relocation of the embassy from Tel Aviv has been suspended by the sitting President semi-annually based on national security concerns as provided for in section 7 of the Act.


.
(a) .—
(1) Beginning on October 1, 1998, the president may suspend the limitations set forth in section 3(b) for a period of six months if he determines and reports to Congress in advance that such suspension is necessary to protect the national security interests of the United States.
(2) The President may suspend such limitations for an additional six month period at the end of any period during which the suspension is in effect under this subsections if the President determines and reports to Congress in advance of the additional suspension that the additional suspension is necessary to protect the national security interests of the United States.
(3) A report under paragraph (1) or (2) shall include—
(A) a statement of the interests affected by the limitation that the President seeks to suspend; and
(B) a discussion of the manner in which the limitation affects the interests.
(b) .—
If the President exercises the authority set forth in subsection (a) in a fiscal year for the purpose set forth in such section 3(b) except to the extent that the limitation is suspended in such following fiscal year by reason of the exercise of the authority in subsection (a).



Since this provision went into effect in late 1998, all the Presidents serving in office during this period have determined moving forward with the relocation would be detrimental to U.S. national security concerns and opted to issue waivers suspending any action on this front. A re-assessment has to take place every six months however. In response, members of Congress have begun to include language to do away with the President's exclusivity in making the determinations or flat-out remove the waiver provision completely from the Embassy Act altogether.

Developments


Noteworthy developments since the passage of the Act and well past the initial May 31, 1999 deadline's expiration:
  • Of the 22 Presidential Determinations to suspend the limitations that have been issued between 1998 and the Fall of 2009, only the Bush era issuances, the bulk of the determinations to date, included the wording:



…while President Obama's issuances mirror the wording first used by President Clinton.

  • Section 214 of the Foreign Relations Authorization Act, FY 2003 states:



The U.S. Congress, however, has the "power of the purse", and could prohibit the expenditure of funds on any embassy located outside Jerusalem. The U.S. Congress has not managed to repeat the incorporation or passage of language similar to Section 214's needed to even be able to attempt forcing a foreign policy change by withholding funding.

  • Claims have arisen that a result of the Embassy Act, official U.S. documents and web sites refer to Jerusalem as the capital of Israel, although this has been the case in many instances before the Act became law. The CIA World Fact Book has carried the typical Federal citation concerning Israel's capital and the absence of the usual concentration of foreign embassies being within its boundaries or proximity.

  • A potential site for a future US Embassy office building has been demarcated by Israel and the US, and is maintained in the neighborhood of Talpiot
    Talpiot
    Talpiot , is a neighborhood in southeast Jerusalem, Israel, established in 1922 by Zionist pioneers.-Etymology:The name Talpiot derives from a verse in Song of Songs 4:4 – "Thy neck is like the tower of David, built with turrets." According to rabbinic sources, Talpiot refers to the Temple...

    . Currently, the United States has three diplomatic office facilities in Jerusalem: a Consulate on Agron Road in West Jerusalem, a consular annex on Nablus road
    Nablus Road
    The Nablus Road is one of the traditional routes into Jerusalem's walled city. Starting at the Damascus Gate, it is the ancient road north.-Places of interest:* The Garden Tomb* The Dominican School of Biblical Research and Saint Stephen's Monastery...

     in East Jerusalem and a new office annex in the West Jerusalem neighborhood of Arnona, which opened in October 2010.


In March 2011 a new bill, the Jerusalem Embassy and Recognition Act of 2011 (H.R.
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...

 1006), was introduced. Cosponsored by fourteen Members of Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

, including House Europe Subcommittee Chairman Dan Burton
Dan Burton
Danny "Dan" Lee Burton is the U.S. Representative for , and previously the , serving since 1983. He is a member of the Republican Party....

 (R), House Foreign Affairs Committee Chairwoman Ileana Ros-Lehtinen
Ileana Ros-Lehtinen
Ileana Ros-Lehtinen is the U.S. Representative for , serving since 1989. She is a member of the Republican Party....

 (R) and House Middle East Subcommittee
United States House Foreign Affairs Subcommittee on the Middle East and South Asia
The U.S. House Subcommittee on the Middle East and South Asia is a subcommittee within the House Foreign Affairs Committee.-Jurisdiction:The subcommittee is one of five with what the committees calls "regional jurisdiction" over a specific area of the globe...

 Chairman Steve Chabot
Steve Chabot
Steven Joseph "Steve" Chabot is the U.S. Representative for . He is a member of the Republican Party. He previously represented the district from 1995 to 2009.-Early life, education and career:...

 (R), the bill would discontinue the Presidential waiver authority included in the 1995 Act, relocate the U.S. Embassy in Tel Aviv to Jerusalem, and affirm the city as the undivided capital of Israel.

See also

  • Positions on Jerusalem
    Positions on Jerusalem
    There are differing legal and diplomatic positions on Jerusalem held within the international community. Governments and scholars alike are divided over the legal status of Jerusalem under international law. Most countries of the world do not recognize Jerusalem as Israel's capital. Many do not...

  • Jerusalem Day
    Jerusalem Day
    Jerusalem Day is an Israeli national holiday commemorating the reunification of Jerusalem and the establishment of Israeli control over the Old City in June 1967...

  • Jerusalem Law
    Jerusalem Law
    The Jerusalem Law is a common name of Basic Law: Jerusalem, Capital of Israel passed by the Knesset on July 30, 1980 .It began as a private member's bill proposed by Geula Cohen, whose original text stated that "the integrity and unity of greater Jerusalem in its boundaries after the Six-Day War...

  • United Nations Security Council Resolution 478
    United Nations Security Council Resolution 478
    United Nations Security Council Resolution 478, adopted on August 20, 1980, declared Israel's 1980 Jerusalem Law a violation of international law, and states that the Council will not recognize this law, and calls on member states to accept the decision of the council. This resolution also calls...


External links


Sample of Presidential Determination to suspend:
  • Presidential Determination No. 99-29 — June 17, 1999, — - Clinton's first
  • Presidential Determination No. 2001-19 — June 11, 2001 — - Bush's first
  • Presidential Determination No. 2009-19 — June 05, 2009 — - Obama's first
  • — Compiled list of all PD's
  • Powell sued over Jerusalem's status, BBC News, published September 17, 2003.
  • Civil Action No. 2003-1921, (PDF), Zivotofsky et al. v. Secretary of State, U.S. District Court, Judge Gladys Kessler, 19 Sept. 2007