I do not impugn the motives on either side of this particular issue. Those who have made and will make a strong, if not telling, case for not doing it at this particular time point to international law. You, Senator Moynihan, are a longtime student of international law.

In your testimony you did not really mention international law, so would you concentrate on that particular aspect of it and explain why you believe the incorporation of Jerusalem into the State of Israel, the whole of it, is fully consistent with international law today.

Senator MOYNIHAN. Mr. Chairman, I have tried to make the case a narrow one in order that this honorable committee not commit itself to more than the simple proposition that our Embassy ought to be in the capital of the country to which our Ambassador is accredited.

I did speak of international law, Mr. Chairman. One of the ways the United States helps formulate international law is through our participation in the United Nations. I said in the Security Council in 1980 that the United States acquiesced in an inane resolution which declared Jerusalem to be occupied Arab territory.

Now there is no entity in law called Arab. There is no country called Arab. There is no sovereign entity whose territory could be occupied by another sovereign territory. It was sheer propaganda, standard Soviet-Arab behavior, and we went along with it, in consequence of which 13 embassies left Jerusalem.

So we do not have clean hands in this matter. We have allied ourselves with the enemies of Israel to deprive Israel of even that measure of recognition which had come readily and forthrightly from other countries.

The CHAIRMAN. That was in what particular year?

Senator MOYNIHAN. That was in June, July, and August of 1980, sir, during the previous administration.

The CHAIRMAN. President Carter was President?

Senator MOYNIHAN. That is correct.

We had only to raise our hand and it would not have happened. But we did not raise our hand. We acquiesced.

The CHAIRMAN. Was there objection from the Democratic controlled Senate at that time?

Senator MOYNIHAN. There sure as hell was objection from me. [General laughter.]

The CHAIRMAN. There was no action taken by this committee, though.

Senator MOYNIHAN. I am not aware of any, sir.

The CHAIRMAN. I was on the committee and I cannot recall of any. Senator MOYNIHAN. Mr. Chairman, one doesn't deal with any question of the status of Jerusalem by locating our Embassy there. The status of Jerusalem as Israel's capital city has long since been resolved. That is where the Knesset is. That is where the President's home is. That is where the business of the Government of Israel is conducted. You do not make a statement on that large issue by doing this small and sensible thing.

Senator SPECTER. Mr. Chairman, might I comment?

The CHAIRMAN. Yes; and if you have comments on any question that I put to Senator Moynihan, please make them.

Senator SPECTER. When the chairman raises a question about international law, you move into an area where legal principles are very different than on domestic law.

The law of this country is what the Congress declares in conjunction with the President and the Supreme Court of the United States upholds. There is no similar force to most doctrines in international law.

International law has been characterized by force and by recognition. The State of Israel, for the past 3512 years has teetered on the brink of annihilation. The Arabs need win only one war. Most of the Arab world still seeks to impose their view of international law through force.

We seek today in this resolution to have the other aspect of international law enforced by recognition. It would be an enormous step forward if the power of the United States were placed behind the status of Jerusalem as the capital of Israel by that recognition. Only in that way, Mr. Chairman, can the second body of international law, that which is accorded by recognition, triumph over the both of international law which looks only to force.

The CHAIRMAN. Thank you very much.

I wonder if you, Senator Specter, would relate the U.S. recognition of Jerusalem as the capital of Israel to our commitments under the Security Council Resolutions 242 and 338.

Senator SPECTER. Mr. Chairman, I believe that the recognition of Jerusalem as the capital is entirely consistent with those resolutions and with the broader U.S. policy which has been in effect since the founding of Israel.

The United States has a very proud role in world leadership in support of Israel, both in terms of basic U.S. national self-interest, which is coterminus with the continued existence of Israel as our only reliable ally in the Mideast. President Mubarak and Egypt are with us today, but there was a time not so many years ago when President Nasser and Egypt were against us and with the Soviet Union.

I would submit that the furtherance of U.S. policy and the furtherance of the goals of those U.N. resolutions would be promoted by the recognition of Jerusalem as the capital of Israel.

Senator MOYNIHAN. Mr. Chairman, may I just extend this discussion a bit, if I may?

Resolution 242 was adopted by the Security Council in 1967, following the end of a war in which Israel was attacked by half a dozen of its neighbors. The resolution was drafted by Mr. Justice Goldberg, who was then our Permanent Representative. The British Permanent Representative also was involved in the drafting,

Mr. Chairman, Resolution 242 does not mention the word "Jerusalem." It refers simply to the right of the State of Israel to live within secure and recognized boundaries.

Now, Mr. Chairman, the question of what is the extent of the municipality called "Jerusalem" is an altogether different question. There is surely a part of that urban conurbation which is the capital of Israel. Jerusalem is the capital of Israel. Nothing can change that fact. Nothing will. The only issue is whether we will recognize it.

From the time of Thomas Jefferson, who was our first Secretary of State, we have accepted realities in the world, a policy from which we rarely have strayed. When we have done so, we have come to regret it. We have said that the fact that we recognize a government does not mean necessarily that we like the government. It means that we see that the government is there. And the fact that we move our Embassy to the capital is simply a statement that the capital is there.

But, having acquiesced in Security Council measures that have driven other embassies out and have declared that this country's capital belongs to some other entity called "Arab," the United States has more than just the obligation of restoring long established practice; we have a positive need to redress what in my view was a badly mistaken move on our part.

I wonder if Senator Specter agrees with me.

Senator SPECTER. I do.

The CHAIRMAN. Thank you very much.

Resolutions 242 and 338 have not been in any way renounced, however, by any President, have they, since their adoption?

Senator MOYNIHAN. No, sir.

The CHAIRMAN. Nor by this committee?

Senator MOYNIHAN. No, sir.

The CHAIRMAN. Some also have argued the constitutional issue which has not been raised so far today. They have argued that it is an unconstitutional encroachment on the independent authority of the President to decide on matters of recognition and diplomatic relations. I did ask the administration to give this committee a coordinated view of the executive branch of Government at this particular time on this issue.

Secretary Shultz sent me a letter dated February 13, which I will insert into the record at this point, without objection, answering the question in full.

With respect to the constitutional question, he said, "Finally, Mr. Chairman, S. 2031 raises serious constitutional questions of a separation of powers nature. The issue involved in this legislation is so closely connected with the President's exclusive constitutional power and responsibility to recognize and to conduct ongoing relations with foreign governments as to, in our view, be beyond the proper scope of legislative action."

[The letter referred to follows:]

Hon. CHARLES H. PERCY,

THE SECRETARY OF STATE, Washington, D.C., February 13, 1984.

Chairman, Committee on Foreign Relations, U.S. Senate.

DEAR MR. CHAIRMAN: You have asked for a coordinated Executive branch statement on S. 2031, "Relating to the residence of the American Ambassador to Israel." As you know, this bill provides that the United States Embassy in Israel and the residence of the American Ambassador to Israel be located in the city of Jerusalem. At present, the Embassy and the Ambassador's residence are located in Tel Aviv.

The Administration opposes enactment of S. 2031. The decision to locate our facilities in Tel Aviv for supporting the conduct of diplomatic relations with Israel is an integral part of U.S. foreign policy. The United States has consistently taken the position that the final status of Jerusalem must be resolved among the parties concerned, in the context of a comprehensive, just and lasting Middle East peace. For that reason, we have refused to recognize unilateral acts

by any party as affecting Jerusalem's status. In accordance with this policy, pending a negotiated resolution of Jerusalem's final status, our Embassy and Ambassador's residence remain in Tel Aviv, a recognized part of the state of Israel.

This carefully administered policy has been pursued by every Administration since the founding of the state of Israel, and the proposed revision in S. 2031 would be extremely harmful at a critical juncture in the search for peace in the Middle East. Pursuant to Security Council Resolutions 242 and 338 and the Camp David Accords, the President has called in his 1 September 1982 initiative for the resumption and broadening of negotiations to resolve the future of the disputed territories. Developments in the region indicate there is a renewed opportunity for such a welcome development. A precipitous transfer of U.S. diplomatic facilities to Jerusalem would give the erroneous impression that the U.S. had altered its longstanding position on the future of Jerusalem, thereby seriously undercutting and discrediting our facilitative role in promoting a negotiated settlement. Such an action would in that sense be damaging to the cause of peace and would therefore not be in the interest of the United States.

Finally, Mr. Chairman, S. 2031 raises serious constitutional questions of a separation of powers nature. The issue involved in this legislation is so closely connected with the President's exclusive constitutional power and responsibility to recognize, and to conduct ongoing relations with, foreign governments as to, in our view, be beyond the proper scope of legislative action. For these reasons the Administration opposes enactment of S. 2031.

The Office of Management and Budget advises that from the standpoint of the Administration's program there is no objection to the submission of this report.

Sincerely yours,

GEORGE P. SHULTZ.

The CHAIRMAN. Could you both comment on the position of the administration regarding that? And I assume it has been the previous administrations' position, ever since the creation of Israel.

Senator MOYNIHAN. Mr. Chairman, Senator Specter is a distinguished attorney, and I would defer to him on constitutional matters. Senator SPECTER. Thank you, Mr. Chairman, and thank you, Senator Moynihan.

When you deal in the subject matter as to where the President's authority begins and ends and where congressional authority begins and ends, we are realistically in a "Never-Never Land."

I believe that the Congress has much more authority to pass on the location of where our Embassy should be in Israel than the President has to declare war in Vietnam or in Korea, to say nothing of more recent military actions which are the subject of much controversy on the constitutionality of the War Powers Act.

These are issues which are separated by dotted lines, and when the Congress appropriates funds for the operation of the Embassy of the United States in Israel, it seems to me that it is well within our purview to express our judgment on what is the legitimate capital of Israel. After all, the Congress in this resolution would not be making this up out of whole cloth, on something that has no rational basis and no logical basis. The Congress very frequently steps into very extensive fields of Executive authority through the appropriations process, by legislating that no funds may be used in a certain way.

If the Foreign Relations Committee would not care to act, I would not be surprised to see the Appropriations Committee willing to legislate on the subject: No further funds may be used by the U.S. executive branch for maintaining an Embassy in Tel Aviv. That would hardly accomplish the purpose, to eliminate one embassy without establishing another.

But, given the broad authority of the Congress in the foreign affairs field, it seems to me that, in the absence of any specific authority to the contrary, this committee and the Congress are well advised to be in this area and to express law on the subject.

The President is always free to veto the resolution. That would subject it to congressional action on a potential override.

I think, though, as Senator Moynihan said, that this, as so many matters, might be worked out by interaction, and if there is a strong expression of sentiment by the Congress, the President might well find that an occasion for acquiescence.

Senator MOYNIHAN. He might find in that, Mr. Chairman, an occasion for doing what he in fact would like to do. And to those who might complain, he can say that he was made to do it.

With respect to Secretary Shultz' letter and you know of the respect in which he is held here even so, I believe it is correct, and Senator Specter can correct me if I am wrong, that there is an adage among lawyers which says when the facts are against you, argue the law.

Mr. Chairman, we should not avoid the most elemental of facts, which is that Jerusalem is the capital of the State of Israel. That's all. That is all we would be acknowledging.

Senator SPECTER. I would supplement Senator Moynihan's statement on that. When the facts are against you and the law is against you, to go somewhat differently in the lawyer's lexicon, when the facts are against you, you pound the law, and when the law is against you, you pound the table. [General laughter.]

The CHAIRMAN. Thank you very much.

Before calling on Senator Pell, I would like to announce a conflict in schedule that I have today. Not only is Mayor Washington of Chicago in town, but our Illinois delegation is meeting with the Secretary of the Army, Secretary Marsh, to discuss all military installations in Illinois. So I will have to leave at that particular time. I can be back here at 1 o'clock. We will recess at about 12:10 and will pick up again at 1 o'clock.

Regretfully, it presents a conflict with Senator Pell's schedule, and I think he can join us again at 2 o'clock.

Senator Pell, if you would be good enough to carry on in my absence, or whatever member would be here from the majority or minority, beyond that, to finish up this afternoon, I would appreciate it.

Thank you very much.

Senator Pell.

Senator PELL. Thank you very much, Mr. Chairman.

I would at this point ask unanimous consent to put into the record a statement by our colleague. Senator Lautenberg, as well as a statement by Tom Dine, an old friend of mine, and the director of the American Israel Public Affairs Committee, and also a paper by Sara M. Averick.

Without objection, I would ask that they be made a part of the record.

The CHAIRMAN. They will be entered into the record.

Senator PELL. Thank you very much.

[The material referred to follows:]