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Is someone born in Jerusalem born in Israel?

Is someone born in Jerusalem born in Israel? This question is the subject of a US Supreme Court case, to be heard in the coming weeks. Israeli-American parents of Menachem Zivotofsky, born in 2002 in Jerusalem, want his birthplace to be listed in his passport as Israel – however it is currently listed as Jerusalem. This is due to the dispute over Israel’s annexation of East Jerusalem in 1967, which it considers part of the “undivided capital of the Jewish state,” but which the US and the rest of the world do not recognize.

Despite the fact that Congress passed legislation in 2002 (just before Menachem Zivotofsky was born) instructing the State Department to list Israel as the birthplace of those born in Jerusalem upon request, former President George W. Bush and President Obama have both disregarded the law, claiming it interferes with US foreign policy regarding Jerusalem, which has been the same for 44 years.

From a NYTimes article:

This fall, not long after Menachem turns 9, the Supreme Court will hear arguments in his case, which seeks to force the executive branch to follow the 2002 law. The case weaves together generations of conflict in the Middle East, the dueling roles of Congress and the president in the conduct of foreign affairs and the combustible topic of presidential signing statements.

According to the Forward (via JTA), Americans for Peace Now is the only American Jewish group to have publicly come out in support of the Obama Administration’s appeal to the Supreme Court not to allow registration of one’s birthplace in Jerusalem to be listed as Israel, due to its conflicted and unresolved status. The report also mentioned that 11 Jewish groups have publicly supported the parents’ claims, while the American Jewish Committee “has opted not to weigh in, in part because it does not regard the Supreme Court as the appropriate forum to decide foreign policy.”

This issue is just another reminder how difficult it is to see the US as an impartial and genuine broker of peace negotiations between Israeli and Palestinians: its own congress has gone against its foreign policy on one of the most contentious core issues of the Israeli-Palestinian conflict: Jerusalem.

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  • COMMENTS

    1. What about west Jerusalem? That’s “in dispute” as well?

      Reply to Comment
    2. Philos

      @ Rechavia: technically yes, all of Jerusalem is in dispute, but de facto it’s not :)

      Reply to Comment
    3. Sherri Munnerlyn

      East Jerusalem is part of the Occupied Palestinian Territories, not a part of Israel at all, under international law. Intl law is confirmed by 2004 Intl Court of Justice opinion on the Wall and countless UN Resolutions, that hold Israel’s annexation of East Jerujsalem illegal and void. East Jerusalem is not disputed territory, that term is a Zionist creation, a Zionist fiction.

      Reply to Comment
    4. RichardNYC

      @MAIRAV
      “This issue is just another reminder how difficult it is to see the US as an impartial and genuine broker of peace negotiations between Israeli and Palestinians: its own congress has gone against its foreign policy on one of the most contentious core issues of the Israeli-Palestinian conflict: Jerusalem.”
      —>Well, the US is a representative democracy, so unless you want to do away with a representative body that is, by necessity, subject to lobbying (Jewish or Arab), you’re setting an impossible impartiality standard. If you want a democracy to be impartial, the best you can hope for is that the executive has constitutionally mandated exclusive authority over foreign policy, supported by centuries of Supreme Court jurisprudence. Then you are describing the United States. I’d be curious to know what government or institution you think is capable of being less partial.

      Reply to Comment
    5. Palestinian

      Maybe my question is little bit drifting from the subject but when I fill a form that necessitates me to write my parents birth place , what should I write ? Israel or Palestine ? If someone was born in Palestinian village pre48 , what should he/she write ?

      Reply to Comment
    6. Hostage

      Re:This is due to the dispute over Israel’s annexation of East Jerusalem in 1967

      Not at all. This is due to the 1949 Armistice Agreements and the stipulations of the parties concerned that the status of the territory can only be unsettled through a mutually agreed upon negotiated settlement.

      The US government was a signatory of the Treaty of Lausanne. It recognized Palestine as an Allied successor state in accordance with Article 30 of the treaty and the most favored nation provisions of its own commerce treaties.

      In Kletter v Dulles (1950) the D.C. District Court ruled: The contention of the plaintiff that Palestine, while under the League of Nations mandate, was not a foreign state within the meaning of the statute is wholly without merit.

      When the Congress speaks of a ‘foreign State,’ it means a country which is not the United States, or its possession or colony- an alien country- other than our own, bearing in mind that the average American, when he speaks of a ‘foreigner,’ means an alien, non- American. Uyeno v. Acheson, D.C., 96 F.Supp. 510.

      Furthermore, it is not for the judiciary, but for the political branches of the Government to determine that Palestine at that time was a foreign state. This the Executive branch of the Government did in 1932 with respect to the operation of the most favored nations provision in treaties of commerce. http://goo.gl/Zw0ob

      The Restatement (Third) of the Foreign Relations Law of the United States § 201 RN 3 says “The United States will treat States the territory of which is under foreign military occupation as continuing to exist.”

      In 1995 the State Department published a Memorandum of Conversation between William Crawford Jr. and Mr. Shaul Bar-Haim from the Israeli Embassy (February 7, 1963) regarding Jerusalem. Bar-Haim said “The use of the term “Palestine” is historical fiction; it encourages the Palestine entity concept; its “revived usage enrages” individual Israelis”. Crawford said “It is difficult to see how it “enrages” Israeli opinion. The practice is consistent with the fact that, ”in a de jure sense”, Jerusalem was part of Palestine and has not since become part of any other sovereignty. See Foreign Relations of the United States, 1961-1963, Vol. Xviii, Near East, United States. Dept. of State, G.P.O., 1995, ISBN 0160451590, page 341.

      Reply to Comment
    7. Anne O'Nimmus

      I’m sure this child has an Israeli passport which claims he was born in Israel. So why the expensive fuss over the ‘made in….’ label on his security blanket…er, second passport? Who’s paying?

      Reply to Comment
    8. Hostage

      The Supreme Court has ruled that the President has the exclusive Constitutional authority to recognize or not to recognize a foreign state or government and to recognize foreign sovereignty over territory. The President has the constitutional authority to conclude international agreements related to recognition without authorization from Congress or consent of the Senate. See United States v Belmont, 301, US 324, 57 S Ct. 758, 81 L.Ed. 1134 (1937); or §204 “Recognition and Maintaining Diplomatic Relations: Law of the United States”, Volume 1, page 89; and §303 Reporters Note 11 “Sole Executive Agreements”, Volume 1, page 167, in “The Restatement of the Law (Third) of the Foreign Relations Law of the United States”, American Law Institute, 1986, ISBN 0314301380.

      The petition for a writ of certiorari in the current case contained the question:

      “Whether the “political question doctrine” deprives a federal court of jurisdiction to enforce a federal statute that explicitly directs the Secretary of State how to record the birthplace of an American citizen on a Consular Report of Birth Abroad and on a passport?

      Regardless of the political question doctrine, the lower Court had the duty to review the constitutionality of the congressional enactment. In 2002, Congress passed the Foreign Relations Authorization Act, Fiscal Year 2003, Pub. L. No. 107-228, 116 Stat. 1350 (2002). Section 214 of the Act, entitled “United States Policy with Respect to Jerusalem as the Capital of Israel,” includes the following provision which is at issue in this case:

      (d) RECORD OF PLACE OF BIRTH AS ISRAEL FOR PASSPORT PURPOSES – For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel. Id. § 214(d)

      Secretary Clinton advised the petitioners that pursuant to Executive Orders and regulations, passports issued to United States citizens born in Jerusalem could not record “Israel” as the place of birth.

      The Supreme Court granted the petition and added the following:

      In addition to the question presented by the petition, the parties are directed to brief and argue the following question: “Whether Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, impermissibly infringes the President’s power to recognize foreign sovereigns.”

      Reply to Comment
    9. Deïr Yassin

      @ Palestinian
      Pre-48: definitely ‘Palestine’ and eventually give a link to the village on http://www.palestineremembered.com :-)
      Post-48: Occupied Palestine
      And then you could always add “Free Palestine !”

      Reply to Comment
    10. Place of birth is tricky. The US State Department told me they subscribe to the guidelines set out by ICAO (the international civil aviation organization) when it comes to passports. ICAO policies state that the place of birth itself is optional, meaning you have the right to leave it blank. The State Dept told me after several months that they interpret it to me that it is optional for the country (not the individual) to decide if it is should be in there, and added that the US government has decided the place of birth is an integral part of one’s identity that should be in a passport. Grrr. If it’s that important, one would think they’d get it right, no? Wrong! A friend of mine was born in Kiev, USSR. Her place of birth in her US passport says “Russia.” She’s told the State Dept she’s never even been to Russia, but they refuse to change. Supreme Court or not, try to fight with THAT logic.

      Reply to Comment
    11. Palestinian

      @ Deir Yassin , I am serious I always face that problem when applying to foreign entities .They never asked me to change it but I always wonder .I always write the village/city.
      Imagine if I write free Palestine , I will be denied entry to that place for the rest of my life ,black list

      Reply to Comment
    12. Jerusalem was never declared as Israeli, never legally annexed to Israel.

      The corpus separatum was not instituted.

      Jerusalem remains a part of what remained of Palestine after Israel was declared.

      UNSC resolutions — 252 (1968) of 21 May 1968 UNSC Resolution 267 (1969) of 3 July 1969 UNSC Resolution 271 (1969) of 15 September 1969, UNSC Resolution 298 (1971) of 25 September 1971, UNSC Resolution 465 (1980) of 1 March 1980, UNSC Resolution 476 (1980) of 30 June 1980

      Reply to Comment
    13. ARTH

      Actually, no part of Jerusalem is recognized as a part of Israel because under the UN Partition plan in 1948, Jerusalem was supposed to be an internationalized city. That means that no part of Jerusalem is recognized as being under Israeli sovereignty officially. It means that those born in Jerusalem, East and West, and Arab and Hebrew and Jewish, are considered born in Jerusalem and not in Israel or Jordan or Palestine. It also means that the Israelis of West Jerusalem and those of the neighborhoods to the east of Arab Jerusalem can only apply for consular services at the separate consulates, which virtually all nations have in Jerusalem. In this spirit the foreign consulates in Jerusalem report directly to their countries’ foreign ministries and never to their countries’ embassy in Tel Aviv. Israel annexed what is today West Jerusalem in 1949 and was declared its capital but that was never recognized, officially, by the international community or the USA.

      Reply to Comment
    14. Hostage

      Re: It means that those born in Jerusalem, East and West, and Arab and Hebrew and Jewish, are considered born in Jerusalem and not in Israel or Jordan or Palestine.

      No it doesn’t. The US government recognized the Mandated State of Palestine and it is waiting for a negotiated settlement to determine the status of Jerusalem as part of the successor states. The United States treats States under military occupation as continuing to exist. So in a de jure sense, Jerusalem is still treated as part of the old state of Palestine.

      Reply to Comment
    15. Bosko

      Hostage said …
      .
      ” Jerusalem is still treated as part of the old state of Palestine”
      .
      Lets’ be accurate. There never was such a thing as an “old state of Palestine”. There was a Palestine which was a province of the Ottoman empire for about 400 years. Then there was a Palestine which was a British mandate. But there never was a state called independent Palestine.

      Reply to Comment
    16. Bosko

      Hostage said …
      .
      ” Jerusalem is still treated as part of the old state of Palestine”
      .
      Lets’ be accurate. There never was such a thing as an “old state of Palestine”. There was a Palestine which was a province of the Ottoman empire for about 400 years. Then there was a Palestine which was a British mandate. But there never was a state called independent Palestine

      Reply to Comment
    17. Bosko

      Sorry, accidental duplicate message above, please delete one.

      Reply to Comment
    18. Ally

      It’s probably safer for him not to have “Israel” mentionned on his American passport anyway, in case he wants to travel oversea.

      Reply to Comment
    19. Andi Ali

      What would happen if the Superme Court found in Menachem Zivotofsky favour. Would this not mean any Muslim born in Jerusalem would also be allowed to have Israel listed as their place of birth. If so, and Israel denied them citizenship and the US refsed to acknowledge them is Israel Citizens, I can see the law courts being very busy.

      Reply to Comment

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